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2024 DIGILAW 2132 (ALL)

Jaydevi Saroj v. State of U. P.

2024-09-25

ARVIND SINGH SANGWAN, MOHD.AZHAR HUSAIN IDRISI

body2024
JUDGMENT : (Per Hon'ble Arvind Singh Sangwan,J.) 1. The present appeal has been filed challenging the judgment of conviction and order of sentence dated 01.08.2018, passed by learned Additional & Sessions Judge, Court No.2, Jaunpur in Sessions Trial No. 254 of 2013, arising out of Case Crime No. 133 of 2013, by which the appellant was held guilty of offence under Section 302 I.P.C. and awarded her life imprisonment along with a fine of Rs. 5,000/- and in default of payment of fine to further undergo one year rigorous imprisonment. 2. The Trial Court’s record is received and paper books are ready. 3. Heard Ms. Mary Puncha Sheeba Jose, Advocate assisted by Sri Mohd. Kalim, learned counsel for the appellant as well as learned AGA for the State and perused the record. 4. With the assistance of learned counsel for the parties, the entire evidence is re-scrutinized and re-appreciated. 5. The FIR dated 9.4.2013 was registered at the instance of informant-Akhilesh Kumar and read as under: 6. After registration of the FIR, the police started the investigation and recorded the statement of the witnesses. 7. One Nagendra Kumar Singh, S.D.M. recorded the statement/dying declaration of the victim, Ex.Ka.4 which read as under: “This is certify that of Suman, w/o Radhe Shyam is concious... (sic)...oriented to (sic) place person at 11.05. A.M. On 18.3.13. 8. The deceased died on same day i.e. 18.3.2013 at about 5:00 PM and her post-mortem was conducted at MLN Hospital, Allahabad on 19.3.2013. The cause of death was due to septicemia as a result of ante-mortem burn injuries. The post-mortem report, Ex.Ka 3 stated that on the upper part of the body i.e. above neck, there was no injury and the deceased suffered the burn injury all over the upper chest, abdomen, left and right arms. However, no percentage of the burn injury was assessed. The police also prepared the Panchayatnama, Ex.Ka.5 in which as per the opinion of the Panches, the deceased died due to burn injuries. Thereafter, the police concluded the investigation and submitted the charge-sheet only against the accused-appellant Jaydevi @ Akhilesh. 9. However, no percentage of the burn injury was assessed. The police also prepared the Panchayatnama, Ex.Ka.5 in which as per the opinion of the Panches, the deceased died due to burn injuries. Thereafter, the police concluded the investigation and submitted the charge-sheet only against the accused-appellant Jaydevi @ Akhilesh. 9. It is worth noticing that the incident is dated 13.3.2013 at about 4:00 AM in the matrimonial home of deceased Suman, who is sister of the informant, however, no FIR was registered instantly and as per the prosecution, a complaint was given to the Superintendent of Police, i.e. Ex.Ka.1 but no action was taken and thereafter, a complaint was given to the Ilaka Magistrate under Section 156(3) of Cr.P.C. on 21.3.2013 (which is Ex.Ka.2). This complaint was filed against two accused persons, namely, Sajawati Devi and Jaydevi @ Akhilesh. The learned Magistrate passed an order and thereafter, the chik FIR was registered on 9.4.2013. 10. The police dropped the proceedings against Sajawati Devi and submitted the charge-sheet only against the appellant. The case was committed to the court of Sessions where charges under Section 302 I.P.C. were framed against the appellant on 1.8.2014. 11. The appellant did not plead guilty and claimed trial. 12. In prosecution evidence, informant- PW-1, Akhilesh Kumar appeared and deposed as under: 13. In cross-examination, this witness admitted that during the treatment his sister was not in a position to speak as she was seriously injured. 14. PW-2- Khushboo, aged about 10 years, who is daughter of the victim appeared and stated that she has no knowledge as to who has caused the burn injuries to her mother. No cross-examination was offered to this witness. 15. PW-3- Rajendra Prasad, Village Pradhan appeared and deposed as under: 16. PW-4- Abhiraji Devi, mother-in-law of deceased Suman, stated as under: 17. PW-5- Dr. Dayanand of Motilal Nehru Regional Hospital, Allahabad, who conducted the post-mortem, deposed as under: 18. PW-6- Nagendra Kumar Singh who recorded the dying declaration of the victim made following deposition as under: In further cross-examination, this witness stated that Panchayatnama, Ex.Ka.5 was not prepared by him. 19. PW-7- Balendra Gautam, Inspector, I.O. stated that on 9.4.2013, the Case No. 133/13, under Section 302 I.P.C. was registered and its chik FIR, as per the order of the court was prepared and the site plan, Ex.Ka.12 was also prepared. Thereafter, he recorded the statement of the prosecution witnesses. 19. PW-7- Balendra Gautam, Inspector, I.O. stated that on 9.4.2013, the Case No. 133/13, under Section 302 I.P.C. was registered and its chik FIR, as per the order of the court was prepared and the site plan, Ex.Ka.12 was also prepared. Thereafter, he recorded the statement of the prosecution witnesses. On 10.4.2013, he recorded the statement of Nagendra Kumar Singh, Magistrate and Dr. Vimlendu and obtained the copy of the post-mortem report. On 17.4.2013, vide G.D. No. 5, he found that Sajawati Devi is falsely implicated in the case and on 22.4.2013 accused Jaydevi was arrested and thereafter, on completion of investigation, charge-sheet was submitted which is Ex.K.13. He proved the chik FIR and G.D. as Ex.Ka.14 and Ex.Ka.15. In cross-examination, this witness stated that the incident is of 13.3.2013 whereas the FIR was registered on 9.4.2013. He further stated that when a complaint was given to the police by the brother of husband of the deceased, he recorded the statement of Radhey Shyam, husband of the deceased who has stated that his brother has got the FIR registered by faking a false incident and therefore, in his investigation, the incident of burning the victim by accused person was found to be fake incident. He further stated that the house of Jaydevi is situated at a far off place from the place of occurrence and in the site plan, he has shown one kerosene chimney (earthen lamp) which has fallen on the deceased at the time of incident. 20. He further stated that he recorded the statement of Abhiraji Devi, mother-in-law of the deceased who stated that deceased sustained burn injuries due to falling of earthen lamp and she sustained the burn injuries accidentally. She further stated that the room was locked from inside and on hearing the cries, they opened the door and doused the fire. Similar statement was made by Khushboo, daughter of the deceased. He further stated that even Radhe Shyam, husband of the deceased has given a statement during investigation that the entire incident is false and fake and his wife died due to burn injuries sustained due to falling of earthen lamp on the deceased and regarding the treatment of the victim, she stated that at the first instance on 13.3.2013 at 10:30 AM, deceased was taken to Swaroop Rani Hospital, Allahabad for her first aid and her post-mortem was conducted on 19.3.2013. As per the FIR, the victim was referred to Allahabad, however, the informant got her first aid in a private hospital and then got her admitted in Swaroop Rani Hospital where she died. This witness further stated that he had gone to record the statement of doctor of Swaroop Rani Hospital and in the statement it has not come on record whether deceased Suman was in a position to depose before her death as doctor refused to give any such statement. 21. Thereafter, the statement of the accused under Section 313 Cr.P.C. was recorded and all the incriminating evidence was put to her. The accused denied all the allegations and stated that the doctor has wrongly given an opinion being a Govt. servant. In reply to question no.15 regarding giving any clarification, she stated that she has been falsely implicated in order to extract money and she is innocent. 22. Thereafter, the trial court vide impugned judgment dated 01.08.2018 convicted the appellant under Section 302 I.P.C. and awarded her life imprisonment. 23. Learned counsel for the appellant has argued that there is material variation in the statement given to the police and the dying declaration. It is submitted that in the FIR it is nowhere mentioned that appellant-Akhilesh @ Jaydevi was related to the victim whereas, in the dying declaration she has stated accused to be her cousin sister-in-law. She further submits that in the dying declaration, the name of appellant is mentioned as Akhilesh w/o Prem Chand whereas the appellant's name is Jaydevi and therefore, the identity of the appellant is highly doubtful in the dying declaration. 24. Learned counsel next argued that PW-6 who recorded the statement/dying declaration has admitted that he has not mentioned in the dying declaration that he has satisfied himself that the deceased was in a fit condition to record the statement or not. He has also shown ignorance about the doctor who has given the fitness certificate. It is next argued that on the dying declaration there are two endorsements of the doctor recorded at 11:05 AM and 11:15 AM. In both the endorsements, it is certified that Suman w/o Radhey Shyam is conscious and oriented during her statement. However, it is not recorded that the deceased was in a fit mental condition to record her statement. It is next argued that on the dying declaration there are two endorsements of the doctor recorded at 11:05 AM and 11:15 AM. In both the endorsements, it is certified that Suman w/o Radhey Shyam is conscious and oriented during her statement. However, it is not recorded that the deceased was in a fit mental condition to record her statement. It is argued that PW-6 has neither obtained the signature of any of the attendant or family member of the deceased nor has recorded the same in the presence of the I.O. who has also not attested the same. 25. The appellant has set up a defence regarding her identity as both the name of the appellant as well as her husband name are wrongly given in the dying declaration, as PW-6 has failed to clarify this aspect. 26. Learned counsel has further submitted that nothing is stated in this dying declaration that after recording the same the I.O., he has read over the same to the victim and after understanding the same, she has put her right foot thumb impression. 27. Learned counsel further submitted that even there is no endorsement on the dying declaration that the same has been handed over to the I.O. in a sealed cover rather nothing has come on record when it was handed over to the Investigating Officer. 28. It is next argued that the doctor who treated the victim Suman from 13.3.2013 to 18.3.2013 for a period of about six days was never examined by the prosecution and even the operating notes was not produced on record and therefore, an important right to cross-examine the doctor about the nature of the injuries sustained, the mental state of the victim to make any statement and the nature of sedative medicine given to the victim is denied. 29. It is next argued that the deceased sustained burn injury on 13.3.2013 and her dying declaration was recorded on 18.3.2013 at 11:15 AM whereas the victim died on the same day at 5:30 PM i.e. in a span of about six and a half hours. 29. It is next argued that the deceased sustained burn injury on 13.3.2013 and her dying declaration was recorded on 18.3.2013 at 11:15 AM whereas the victim died on the same day at 5:30 PM i.e. in a span of about six and a half hours. It is argued that in such situation, as per the statement of PW-6 and the witnesses of fact, it is proved that the deceased was in a critical condition immediately before her death and was not in a position to speak and therefore, by not recording dying declaration for a period of six days when the victim was in hospital and recording it just few hours before her death raises a suspicion about its admissibility. 30. It is next argued that none of the witnesses of fact have supported the prosecution version and in the first complaint given to the Superintendent of Police on 16.3.2013 (Ex.K.1) i.e. after four days and no explanation of delay is given and even in complaint under Section 156(3) of Cr.P.C. two persons namely Sajawati Devi and appellant- Jaydevi @ Akhilesh are named. However, the charge-sheet was presented only against the appellant and no explanation regarding dropping the proceedings against Sajawati Devi has come on record. 31. Learned counsel for the appellant has next argued that all the witness of facts have consistently deposed that the deceased sustained burn injuries due to falling of a kerosene lantern and, therefore, the role of the appellant is not proved. It is also argued that there is no motive for the appellant to commit the offence as the witnesses of facts have admitted that she is not related to the family of husband of the victim and rather at the first instance, the allegations were against one Sajawati Devi who was stated to be the sister-in-law i.e. husband’s brother’s wife. 32. Learned counsel has next argued that the motive was attributed to Sajawati Devi as it is stated in the FIR that she used to harass and maltreat the deceased, even on previous occasions and, therefore, the prosecution has failed to prove the motive against the appellant. 33. Learned counsel has next argued that one of the eye witness, namely, Khusboo, PW-2, the daughter of the victim who as per the prosecution, was present in the room, also did not support the prosecution version. 34. 33. Learned counsel has next argued that one of the eye witness, namely, Khusboo, PW-2, the daughter of the victim who as per the prosecution, was present in the room, also did not support the prosecution version. 34. Learned counsel for the appellant has further argued that the mother-in-law of the deceased also did not name the appellant as a person who has caused burn injuries and PW-7 (Balendra Gautam), the Investigating Officer has categorically stated that he has recorded the statement of Radhey Shyam, husband of the deceased, who has stated that entire incident is fake and no such offence was committed by the appellant. 35. Learned counsel for the appellant has lastly argued that the case of the prosecution is that accused named in the complaint namely, Sajawati Devi, on account of Pattidari was having a grudge with Suman and used to harass and maltreat her and even on the date of incident, she entered the house, abused Suman and gave fist blows. However, Sajawati Devi was given a clean chit by the police and no charge-sheet were presented against her and, therefore, the motive which was attributed towards Sajawati Devi, cannot be attributed to the appellant to hold her guilty of offence . 36. Counsel for the appellant has also relied upon the decision in Shambhubhai Kalabhai Raval vs. State of Gujarat, 2023 SCC OnLine SC 1420, wherein the Supreme Court has held as under : “6. There are other factors on the basis which we can say that the dying declaration is not free from a serious doubt. The said reasons are as under:- (i) The dying declaration itself does not bear the endorsement of the doctor regarding the fitness of the deceased to make a statement; (ii) A panchnama (Exhibit ‘29’) was recorded around 10:10 P.M. on 31.07.1994, which records that the deceased was barely able to tell her name and she stated that she could not speak. The alleged dying declaration was recorded between 09:45 P.M. to 10:00 P.M.; (iii) Even the police personnel, who recorded the panchnama has stated that the deceased was not in a position to speak; and (iv) PW5 - Dr. Rajendra, who examined the deceased stated in the cross-examination that when he asked the deceased about the cause of burn injuries, she disclosed that she poured kerosene on herself. But she gave no reason why she did the act. Rajendra, who examined the deceased stated in the cross-examination that when he asked the deceased about the cause of burn injuries, she disclosed that she poured kerosene on herself. But she gave no reason why she did the act. 7. These factors taken together create a serious doubt about the correctness of the dying declaration. Therefore, the dying declaration will have to be kept out of consideration. In any case, 5 the dying declaration is not of that sterling quality on which the conviction can be based in absence of any other evidence. Therefore, the prosecution has failed to prove the guilt of the appellant beyond a reasonable doubt. The appeal succeeds and the impugned orders are quashed and set aside. The appellant is acquitted.” 37. He has also relied upon the decision in Umakant and another Vs. State of Chhatishgarh, (2014) 7 SCC 405 wherein the Supreme Court has held as under : “22. The legal position about the admissibility of a dying declaration is settled by this Court in several judgments. This Court in Atbir v. Government of NCT of Delhi- 2010 (9) SCC 1 , taking into consideration the earlier judgments of this Court in Paniben v. State of Gujarat – 1992 (2) SCC 474 and another judgment of this Court in Panneerselvam v. State of Tamilnadu - 2008 (17) SCC 190 has given certain guidelines while considering a dying declaration: “(i). Dying declaration can be the sole basis of conviction if it inspires full confidence of the Court. (ii). The Court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination. (iii). Where the Court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration. (iv). It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborative. The rule requiring corroboration is merely a rule of prudence. (v). Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence. (vi). A dying declaration which suffers from infirmities, such as the deceased was unconscious and could never make any statement cannot form the basis of conviction. (vii). The rule requiring corroboration is merely a rule of prudence. (v). Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence. (vi). A dying declaration which suffers from infirmities, such as the deceased was unconscious and could never make any statement cannot form the basis of conviction. (vii). Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected. (viii). Even if it is a brief statement, it is not to be discarded.” 9. When the eye-witness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail. 10. If after careful scrutiny the Court is satisfied that it is free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it basis of conviction, even if there is no corroboration. 23. In the light of the above legal position that governs the consideration of a dying declaration, the factual matrix has to be scrutinised. As already extracted above, in the dying declaration Ex.P-13, the deceased stated before the Magistrate that the appellants demanded dowry and that the appellants set fire to her and she asked her brother-in- law to rescue her, but he had chosen not to do so, and further on hearing her cries, the neighbours came and extinguished the fire and admitted her in the hospital. After she was admitted in the hospital, her parents came and she informed them about the incident. The deceased is said to have stated that when she was pregnant she was beaten up by the accused and because of which the child died in the womb. At that time, she had taken treatment in Revival Hospital]. This statement is found in Ex.P-23, FIR written by K.B. Singh (P.W.23), and not in Ex.P13 dying declaration. 24. The deceased is said to have stated that when she was pregnant she was beaten up by the accused and because of which the child died in the womb. At that time, she had taken treatment in Revival Hospital]. This statement is found in Ex.P-23, FIR written by K.B. Singh (P.W.23), and not in Ex.P13 dying declaration. 24. When we look at the dying declaration, it is not inspiring confidence in the mind of this Court and throws serious doubt that the same is a product of tutoring by the family members of the deceased for the reason that, the sister of the deceased who was present when the deceased was admitted in the hospital had signed in Ex.P-2 wherein it is stated that it was an accident and nobody has burnt the deceased, but later she turned around and stated that unless she signed on that, they were told that the deceased would not be treated, and the High Court has taken this fact into consideration, whereas in the dying declaration, the deceased has stated that when her parents came to the hospital on 06.08.2003, she informed to the parents for the first time and she had not mentioned that she informed her sister or anybody before that, but according to the sister of the deceased, on 02.08.2003, she was aware of this, which shows that the evidence of the witness is not reliable and clouded with doubt. 38. Counsel for the appellant has relied upon the decision in Kanti Lal vs. State of Rajasthan, (2009) 12 SCC 498 wherein the Supreme Court with reference to the admissibility of the Dying Declaration has held as under : 32. It is well settled that one of the important tests of the credibility of the dying declaration is that the person, who recorded it, must be satisfied that the deceased was in a fit state of mind. For placing implicit reliance on dying declaration, the court must be satisfied that the deceased was in a fit state of mind to narrate the correct facts of occurrence. If the capacity of the maker of the statement to narrate the facts is found to be impaired, such dying declaration should be rejected, as it is highly unsafe to place reliance on it. If the capacity of the maker of the statement to narrate the facts is found to be impaired, such dying declaration should be rejected, as it is highly unsafe to place reliance on it. The dying declaration should be voluntary and should not be prompted and physical as well as mental fitness of the maker is to be proved by the prosecution. 33. In the present case, as noticed above DW 2 has not taken any certificate from the doctor to prove that the deceased was in a fit state of mind to give statement nor he has recorded any endorsement to that effect on the alleged dying declaration (Ext. D-4). Another factor which impairs the credibility of the alleged dying declaration (Ext. D-4) and belies the statement of DW 2 was that, according to Dr. Vasudev, dying declaration was recorded by the reader of the Tahsildar and not by DW2. 34. It is also proved on record that DW 2 did not ask preliminary questions from the deceased before the dying declaration allegedly made by her was recorded and this fact also created doubt about the correctness and truthfulness of the dying declaration. It is also the evidence of DW 2 that after recording the alleged statement of the deceased, he did not seal the dying declaration and the unsealed document was handed over to the Station House Officer. DW 2 has not produced on record the original copy of the “tehreer” submitted to him by a constable requesting him to visit the hospital for recording the alleged dying declaration of the deceased, and a carbon copy whereof was produced by him during his cross-examination. 35. A categorical refusal of putting her signature or thumb impression on the alleged dying declaration (Ext. D-4) by PW 6 Bhanvri (the mother of the deceased) would further go to prove that the alleged dying declaration was not at all recorded by DW 2 in the room of the hospital where the deceased was lying before she died. 36. The abovestated facts and circumstances would prove that the alleged dying declaration, on which much reliance has been placed by the defence, cannot be said to be an admissible and reliable document. The fact that the alleged dying declaration (Ext. 36. The abovestated facts and circumstances would prove that the alleged dying declaration, on which much reliance has been placed by the defence, cannot be said to be an admissible and reliable document. The fact that the alleged dying declaration (Ext. D-4) did not bear endorsement of DW 2 to the effect that it was read over and explained to the deceased, also created a doubt on its credibility and truthfulness. 37. The trial court as well as the High Court both have concurrently and, in our considered view, have rightly rejected the genuineness and credibility of the alleged dying declaration to prove the defence version that the deceased made the said statement to DW 2 and she died because of accidental death. We agree with the findings and reasoning of the courts below that the alleged dying declaration (Ext. D-4) suffers from a number of basic infirmities and such dying declaration cannot be found admissible and accepted as a genuine document. 38. Ms Aishwarya, learned counsel, has relied upon the judgment of this Court in Gaffar Badshaha Pathan v. State of Maharashtra [ (2004) 10 SCC 589 : 2004 SCC (Cri) 2037] to contend that it is one thing for an accused to attack a dying declaration in a case where the prosecution seeks to rely on a dying declaration against an accused but it is altogether different where an accused relies upon a dying declaration in support of the defence of accidental death. In such case, the burden on the accused is much lighter. 39. In the present case, according to the learned counsel, A-1 and A-3 have established beyond reasonable doubt that the statement of the deceased was recorded by DW 2 with bona fide intention and without putting any pressure upon the deceased and therefore, the document has to be accepted as an admissible and reliable document to indicate that the deceased died due to accidental fire. 40. We have gone through the abovecited judgment in Gaffar Badshaha Pathan [ (2004) 10 SCC 589 : 2004 SCC (Cri) 2037] . 40. We have gone through the abovecited judgment in Gaffar Badshaha Pathan [ (2004) 10 SCC 589 : 2004 SCC (Cri) 2037] . In that case, this Court while dealing with the dying declaration produced on record held as under: (SCC p. 590f-h) “It is one thing for an accused to attack a dying declaration in a case where the prosecution seeks to rely on a dying declaration against an accused but it is altogether different where an accused relies upon a dying declaration in support of the defence of accidental death. The burden on the accused is much lighter. He has only to prove reasonable probability. The High Court erred in holding that the recording of the dying declaration and story stated therein apparently appears to be false and concocted. … the fact whether the dying declaration is false and concocted has to be established by the prosecution. It is not for the accused to prove conclusively that the dying declaration was correct and the story therein was not concocted.” 41. In Ghurphekan v. State of U.P. [ (1972) 3 SCC 361 : 1972 SCC (Cri) 531] this Court while dealing with the case which entirely rested on dying declaration of the deceased held as under: (SCC p. 362) “(i) A dying declaration, recorded within a few hours after the incident, when it bore the endorsement of the doctor, that the victim was at that time in ‘proper senses’ to be able to give the statement and where the evidence of the recording Magistrate showed no flaw in taking it down, there is no reason to reject it. (ii) Where the dying declaration had two weaknesses, namely, it did not mention the name of one of the witnesses present at the spot and it did not account for the injuries on the persons of the attacking party, it cannot be rejected on those omissions only, if otherwise it could be shown to be true in other respects, by other satisfactory evidence. (iii) Where the circumstantial evidence negatived the alternative case set up by the defence and the investigating officer's evidence about the place of incident, the medical officer's evidence in support of the prosecution about the manner of the occurrence of the incident, and the explanation of some witnesses for their presence at the spot, are consistent with the dying statement and the circumstantial evidence; the dying declaration possesses acceptability in spite of any weaknesses pointed out by the defence.” 42. In Kans Raj v. State of Punjab [ (2000) 5 SCC 207 : 2000 SCC (Cri) 935] this Court held (SCC p. 218, para 11) that the statement of a person “as to any of the circumstances … which resulted in his death” must have some close and proximate relation with the actual occurrence and proximity would depend upon the circumstances of each case for the purpose of admissibility of such statement as dying declaration under Section 32(1) of the Evidence Act, 1872. 43. In Kamalakar Nandram Bhavsar v. State of Maharashtra [(2004) 10 SCC 192 : (2010) 1 SCC (Cri) 495] this Court on scrutiny of the evidence on record found that the victim of dowry death/bride burning had suffered burn injuries to the extent of 94-95% could not have made dying declaration as stated by the doctor during the cross-examination that a dying declaration was made by the victim when she was in hospital. The alleged dying declaration was admitted in evidence at the behest of the defence by the trial court supportive to the defence of the accused. On the facts of the case, this Court observed that the source of production of dying declaration was neither mentioned in the trial court's judgment nor was there any evidence to prove the said document. In these circumstances, this Court held that the High Court had rightly rejected the said dying declaration. 44. In the present case, as noticed in the earlier part of the judgment A-1 and A-3 have not proved on record the source of production of the dying declaration by DW 2 who after recording the statement of the deceased was duty bound to hand over the alleged dying declaration under a sealed cover to the prosecuting agency. 44. In the present case, as noticed in the earlier part of the judgment A-1 and A-3 have not proved on record the source of production of the dying declaration by DW 2 who after recording the statement of the deceased was duty bound to hand over the alleged dying declaration under a sealed cover to the prosecuting agency. In this case, the origin and source of the alleged dying declaration produced by DW 2 at the time of his examination as a defence witness is highly doubtful and such document cannot be accepted as genuine and truthful document in support of the defence of A-1 and A-3. 45. In State (Delhi Admn.) v. Laxman Kumar [ (1985) 4 SCC 476 : 1986 SCC (Cri) 2] this Court while dealing with a case of bride burning on the basis of dying declaration, held as follows: (SCC pp. 488 & 490, paras 21 & 25) “21. … A dying declaration enjoys almost a sacrosanct status as a piece of evidence as it comes from [the] mouth of a person who is about to die and at that stage of life he is not likely to make a false statement. … *** 25. … Ordinarily, a document as valuable as a dying declaration is supposed to be foolproof and is to incorporate the particulars which it is supposed to contain.” Further, it is held that: (Laxman Kumar case [ (1985) 4 SCC 476 : 1986 SCC (Cri) 2] , SCC p. 492, para 28) “28. … unless the dying declaration is in question and answer form it is very difficult to know to what extent the answers have been suggested by questions put. What is necessary is that the exact statement made by the deceased should be available to the court.” It is also said that if the doctor happened to be present at the time of recording of the dying declaration and he had heard the statement made by the deceased, he would ordinarily endorse that the statement had been made to his hearing and had been recorded in his presence. The endorsement as made is indicative of the position that a statement had been recorded and the same was being attested by the doctor. 46. In the present case, these basic principles are ignored by DW 2 at the time of recording of the alleged dying declaration of the deceased. The endorsement as made is indicative of the position that a statement had been recorded and the same was being attested by the doctor. 46. In the present case, these basic principles are ignored by DW 2 at the time of recording of the alleged dying declaration of the deceased. As noticed above, the doctor has not made any endorsement on the dying declaration to state that it was recorded in his presence and attested by him. The mother of the deceased refused to put her thumb impression on the said document. Thus, the judgment cited above cannot strengthen the defence of A-1 and A-3 that the dying declaration, Ext. D-4 had been recorded by DW 2 by observing the principles laid down in the above-said case. 47. The prosecution in support of the charge of dowry death has produced and relied upon the testimony of PW 5 Parasmal, father; PW 6 Bhanvri, mother and PW 8 Mahender Kumar, “mama” (mother's brother) of the deceased. Before we proceed to deal with and consider the evidence of the prosecution on the question of dowry death, we may consider the ratio of the law laid down in the cases relied upon before us. 48. In Pawan Kumar v. State of Haryana [ (1998) 3 SCC 309 : 1998 SCC (Cri) 740] this Court held that: (SCC p. 314, para 6) “6. … The ingredients necessary for the application of Section 304-B are:(a) When the death of a woman is caused by any burns or bodily injury, or (b) occurs otherwise than under normal circumstances, (c) and the aforesaid two facts spring within 7 years of girl's marriage, (d) and soon before her death, she was subjected to cruelty or harassment by her husband or his relative, (e) this is in connection with the demand of dowry.” (emphasis in original) 49. In Hira Lal v. State (Govt. In Hira Lal v. State (Govt. of NCT), Delhi [ (2003) 8 SCC 80 : 2003 SCC (Cri) 2016] this Court reiterated that the essential ingredients to attract application under Section 304-B are that: (SCC p. 81b-c) “(i) the death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance, (ii) such a death should have occurred within seven years of her marriage, (iii) she must have been subjected to cruelty or harassment by her husband or any relative of her husband, (iv) such cruelty or harassment should be for or in connection with demand of dowry, and (v) such cruelty or harassment is shown to have been meted out to the woman soon before her death.” Further it is said that the presumption under Section 113-B of the Evidence Act, 1872 is a presumption of law. “….. On proof of the essentials mentioned therein, it becomes obligatory on the court to raise a presumption that the accused caused the dowry death. The essentials required to be proved for raising the said presumption are that (i) the question before the court must be whether the accused has committed the dowry death of the woman, (ii) the woman was subjected to cruelty or harassment by her husband or his relatives, (iii) such cruelty or harassment was for or in connection with any demand for dowry, and (iv) such cruelty or harassment was soon before her death.” (Hira Lal case [ (2003) 8 SCC 80 : 2003 SCC (Cri) 2016] , SCC p. 81c-d) 50. Again, in Kamesh Panjiyar v. State of Bihar [ (2005) 2 SCC 388 : 2005 SCC (Cri) 511] , Ram Badan Sharma v. State of Bihar [ (2006) 10 SCC 115 : (2007) 1 SCC (Cri) 166] , Trimukh Maroti Kirkan v. State of Maharashtra [ (2006) 10 SCC 681 : (2007) 1 SCC (Cri) 80] , Kailashv. State of M.P. [ (2006) 12 SCC 667 : (2007) 2 SCC (Cri) 359] and Appasaheb v. State of Maharashtra [ (2007) 9 SCC 721 : (2007) 3 SCC (Cri) 468] this Court reiterated and reasserted the settled principles laid down in Hira Lal case [ (2003) 8 SCC 80 : 2003 SCC (Cri) 2016] .” 39. Learned counsel for the State in reply argued that the appellant is named accused in the complaint as well as in the FIR. Learned counsel for the State in reply argued that the appellant is named accused in the complaint as well as in the FIR. It is submitted that the delay in registration of FIR was due to the reasons that at the first instance, no FIR was registered and only after direction of the Court, it was registered on 9.4.2013. 40. Learned counsel for State submits that as per the postmortem report, the deceased sustained burn injuries and in the dying declaration, the victim has named the appellant. 41. Learned counsel for State submits that even in the complaint filed before the Magistrate, the appellant is named as Jaydevi @ Akhilesh wife of Prem Chandra whereas there is no document to state that the appellant is not having any alias name. 42. After hearing the learned counsel appearing on behalf of accused-appellant as well as learned AGA for State and perusal of lower court record, paper book and re-appreciation of evidence, we find merits in this case for the following reasons : (A) The incident is of on 13.3.2013, whereas no complaint was given to the police prior to 16.3.2013. A perusal of first complaint (Exhibit-Ka-1) given to the Superintendent of Police, the informant-Akhilesh Kumar, brother of the victim, has named two ladies i.e. Sajawati Devi wife of Ramkaran, sister-in-law with a motive that because of pattidari she was keeping a grudge and used to harass and maltreat the victim whereas the appellant who is named as second lady, who on the date of incident accompanied Sajawati Devi and after abusing her both ladies by pouring kerosene oil, lit the fire. (B) It is admitted of the case that prosecution during investigation Sajawati Devi who is the sister-in-law (Devrani of the victim) had dropped proceedings and she was given a clean chit whereas the appellant- Jaydevi who as per the Investigating Officer is not related to the family of the victim or her husband is nominated without any motive attributed to her. Therefore, once the police has dropped the investigation against Sajawati Devi against whom the motive was attributed, the prosecution of the appellant without there being any such motive is illegal. Therefore, once the police has dropped the investigation against Sajawati Devi against whom the motive was attributed, the prosecution of the appellant without there being any such motive is illegal. (C) As per the informant, he took the victim to Government Hospital, Machhli Sahar from where she was referred to Allahabad however he got her admitted in the hospital at Mungara Badsahpur, Jaunpur who give first aid and then she was brought to Swaroop Rani Hospital, Allahabad, where she was admitted in ICU. Neither the Investigating Officer recorded the statement of any doctor of Government Hospital, Machhli Sahar, Jaunpur nor the doctor of Mungra Badshahpur, Jaunpur or the treating doctor of Swaroop Rani Hospital, Allahabad, where the deceased remains admitted for six days. Even the operative notes of the doctor regarding the treatments given to the victim, were not taken in possession by the Investigating Officer. This all raises suspicion about the version given by the informant. (D) In the absence of any doctor being examined as witness, accused – appellant was denied a right to cross examine to put up her defence to the doctor regarding the nature of injuries sustained, or the information given at the first instance as to who has caused injuries and nature of treatment given to the victim which includes giving the sedative medicines as pain killer so as to ascertain whether the deceased was in a fit mental condition to gave the statement to PW-6. (E) In the dying declaration, it is stated that when the accused poured kerosene oil and lit the fire, the daughter of her Jethani (husband’s brother wife) came and by putting a blanket, doused the fire, however, no such witness has come forward during the investigation to support the allegation that the niece of the husband of the deceased has doused the fire. Rather PW-3, the mother-in-law has stated that she had douse the fire after breaking the latch of the room which was locked from inside. (F) The husband of the victim, namely, Radhey Shyam did not support the prosecution version and he has not even appeared as a witness. Rather PW-3, the mother-in-law has stated that she had douse the fire after breaking the latch of the room which was locked from inside. (F) The husband of the victim, namely, Radhey Shyam did not support the prosecution version and he has not even appeared as a witness. It has come in the statement of PW-6 that when the complaint was given to police at the first instance i.e. before registration of FIR, he had recorded the statement of Radhey Shyam who has stated the entire occurrence is a fake occurrence as the deceased suffered accidental burn injuries and, therefore, no action was taken, also proves that no complaint was registered by the husband of the victim in this regard. (G) PW-2, daughter of the victim as well as PW-4, mother-in-law of the victim did not support the prosecution version and stated that she suffered burn injuries in an accidental fire. One independent witness, PW-3- Rajendra Prasad who is Pradhan of the village has also deposed that when he came to know that Suman has sustained burn injuries, he immediately went and enquired from her, who told that she sustained injuries due to falling of a burning lantern and thereafter he managed a vehicle to send her to the hospital. (H) In cross examination, PW-2 stated that Suman did not tell him that accused Jaydevi has poured kerosene oil or lit the fire. This witness further stated that he has gone to the hospital to meet the victim Suman and he found that she was not in a position to speak. 43. In the light of the aforesaid prosecution evidence which is highly discrepant and suspicious, the trial court has convicted the appellant on the basis of dying declaration, however on careful perusal of the dying declaration, we find that the same cannot be relied upon as legal evidence for the following reasons : (a) PW-6, Narendra Kumar Singh, Sub Division Magistrate had stated that he had taken the opinion of the doctor whether the statement of the victim can be recorded and doctor had given opinion prior to recording of her statement and even subsequently. A perusal of the dying declaration ( Exhibit Ka-4) show that on the top, the doctor of Swaroop Rani Hospital, Allahabad has stated that this is to certify that “Suman wife of Radhey Shyam is conscious and oriented”. A perusal of the dying declaration ( Exhibit Ka-4) show that on the top, the doctor of Swaroop Rani Hospital, Allahabad has stated that this is to certify that “Suman wife of Radhey Shyam is conscious and oriented”. This opinion was given at 11:05 a.m. and after recording the statement again, it is stated that Suman remains conscious during the statement. However, in this statement, it is nowhere recorded that the victim was in a fit mental condition to depose and give the statement. (b) PW-6, Narendra Kumar Singh have admitted in cross examination that he himself has not recorded his satisfaction on Exhibit Ka-4 that the victim is fit to make statement as he has not asked any preliminary questions to record his own satisfaction that the victim was in a position to give statement. (c) There is no endorsement on the dying declaration that the same was read over to the victim and after admitting the contents she has consented to give her right thumb foot impression. (d) Since for the first time, in the dying declaration, it is stated that Jaydevi @ Akhilesh wife of Prem Chandra who is the cousin sister-in-law has committed the offence and, therefore, in order to ascertain identity of Jaydevi @ Akhilesh, no signature of the attendant of victim as witness or any family member of the victim was recorded on the dying declaration and even the signature of the Investigating Officer regarding receiving the same, as an endorsement is not there on record. (e) The Investigating Officer has not tried to find out who is the daughter of the sister-in-law of the victim who has doused the fire with the help of a blanket and no such persons is cited as eye witness. (f) PW-2, daughter of the victim has not stated that Jaydevi @Akhilesh pour kerosene oil and lit fire and even did not name any other person who doused fire. (g) The statement made by the victim Suman is in sharp contrast to the statement of the informant who is brother of the victim whereas he has named two ladies and specific motive is attributed to one Sajawati Devi wife of Ramkaran. It is the consistent stand of PW-1 that it is Sajawati Devi, sister-in-law of victim, who harassed her sister and was keeping a grudge against her. It is the consistent stand of PW-1 that it is Sajawati Devi, sister-in-law of victim, who harassed her sister and was keeping a grudge against her. (h) PW-1 has nowhere attributed any motive to the appellant for pouring kerosene oil on the victim. (i) Therefore, there is material contradictions in the dying declaration and the FIR version which also raises suspicious about its admissibility. Therefore, no reliance can be placed on the dying declaration (Ex.Ka.4). 44. It is worth noticing that the appellant Jaydevi as per custody certificate dated 24th September, 2024 has undergone eight years and five months of total sentence including remission and about six years and eleven months i.e. approximately seven years of actual sentence and she has no criminal antecedents. The appellant has her own family and children and prosecution failed to prove that she was related to victim in any manner. 45. In view of above, we find merits in the present appeal and the same is allowed. 46. Accordingly, the appellant; namely, Jaydevi @ Akhilesh is acquitted of the charges and she be released forthwith from the judicial custody, if not required in any other case. 47. Record and proceedings be sent back to the Trial Court forthwith.