Irshad Hussain, J.
1. Appellant Smt. Nirmala Devi has been convicted and sentenced to undergo simple imprisonment for 7 (seven) years under Section 304B, I. P. C, and simple imprisonment for 1 (one) year under Section 498A, I. P. C per judgment and order dated 17-7-2003 in Sessions Trial No. 28/2001.
2. The prosecution case briefly stated was that deceased Smt. Urmila Devi entered into wed-lock with Rajendra Prasad Tewari on 4/5-5-2001 and thereafter they lived together as the wife and husband. After some time the husband of the deceased, sister-in-law (Jethani) appellant Smt. Nirmala Devi, brother-in-law (Jeth) Satya Prakash, another brother-in-law (Jeth) Vijay Prakash, mother-in-law Smt. Rukmani Devi, the father of the appellant named as Rama Nand and the uncle of the husband named as Gaina Nand subjected the deceased to harassment for not bringing adequate dowry and at the same time coercing her to bring amount of Rs. 40,000/- from her mother and brother by giving threats that unless the demand is met they will not permit her to reside peacefully and happily in her marital home. Smt. Urmila disclosed the cause of harassment to her brother and mother when she visited them. The brother and the mother of the deceased not being able to fulfil the demand, they showed their inability on making a visit to the house of the husband of the deceased. Smt. Urmila Devi also disclosed that her husband and Jethani appellant Smt. Nirmala Devi have been maintaining illicit relations and since they were seen by her while indulging in indecent activities she was subjected to harassment by way of demand for money.
3. The prosecution case was also that on 18-9-2001 at about 1 p.m. informant Rishi Ram Thapliyal (P. W. 1), brother of the deceased was informed on telephone by one Gaina Nand Tewari that his sister has been admitted in hospital of Chamba town as she is seriously sick. The informant reached the hospital the same day at 7 p.m. where he found his sister admitted there with severe burn Injuries in an unconscious state and there was none from the side of the in-laws to attend her in the hospital. The informant was convinced that the persons named above, have as a result of conspiracy, set his sister on fire for not meeting the illegal dowry demand.
4. Written report, Ext. Ka. 1 scribed by one R. K. Joshi also mentioning the time of the incident as 7 a.m. of 18-9-2001 was filed at the police station the same day at 21.45 by the informant and on its basis a case under Sections 498A/120B, I. P. C. and 3/4 Dowry Prohibition Act was registered. The investigation of the case was to be taken up by Circle Officer (Deputy S. P.), Tehri.
5. Memorandum (Ext. Ka.2) received from Christian Hospital, Chamba, disclosed that Smt. Urmila was admitted in the hospital at 9 a.m. on 18-9-2001 with 100% flame burn and she has expired on 19-9-2001 at 7.50 p.m. In view of it the case was converted to one under Sections 120B, 498A/ 304B, I. P. C. and Section 3/4 of the Dowry Prohibition Act vide G. D. entry No. 26 of 20.30 dated 19-9-2001 (Ext. Ka. 17).
6. While deceased Smt. Urmila Devi was admitted in the hospital her dying-declaration (Ext. Ka. 7) was recorded by Sri Pratap Singh Sah, Tehsildar Tehri (P. W. 7) between 10.40 a.m. to 11.30 a.m. on 18-9-2001 in the presence of Medical Officer, Dr. Rajesh Singh (P. W. 4) who has also initially medically examined the said victim at the time of her admission in the hospital and prepared the injury report (Ext. Ka. 3).
7. P. W. 7, Sri Pratap Singh Sah Tehsildar also held inquest on the dead body of Smt. Urmila Devi. He prepared inquest report (Ext. Ka. 8) and relevant documents including the diagram of the dead body (Ext. Ka. 10) and challan report (Ext. Ka. 12). The autopsy on the dead body was held by Dr. S. K. Singh (P. W. 6), who also proved post mortem report (Ext. Ka. 6). During investigation a plastic cane containing 2 liters of kerosene oil and a partly burnt plastic mat were seized vide memo (Ext. Ka. 15) from the scene of the occurrence. After investigation, charge-sheet (Ext. Ka. 19) was submitted against seven accused persons including the appellant.
8. At the trial the prosecution examined 9 witnesses, few of whom have been named above with reference to their evidence. Others examined were P. W. 2, Smt. Mangsiri Devi, the mother of the deceased; P. W. 3, Surendra, another brother of the deceased who have corroborated the case of the prosecution that the appellant subjected the deceased to harassment for and in connection with demand of dowry resulting in her death under circumstances other than natural. P. W. 5, A. S. I. Srichand Singh formally proved check F. I. R. and G. D. report of the registration of case and the investigation part of the case was proved by P. W. 8, Sub-Insepctor Digambar Singh Rawat and P. W. 9, Circle Officer Jagat Ram Joshi, who had submitted charge-sheet against the appellant and others.
9. The appellant pleaded not guilty and denied accusations of the prosecution. The defence set-up in the evidence by way of cross-examination of the prosecution witnesses was that the deceased Smt. Urmila Devi was not agreeing to her marriage with Rajendra Prasad Tiwari; that she was forced to enter into the wed-lock on the insistence of her family members; that on account of this she was not willing to remain in her nuptial home; that she also made false claim that her husband was not able to maintain sexual relationship with her on account of impotency; that she also made false claim that her Jethani, the appellant was maintaining illicit relations with her husband; that the deceased was interested in entering into wedlock with a person with whom she was having pre-marital relations and that when she could not succeed she committed suicide on account of frustration.
10. No oral evidence was adduced in defence but a written agreement in the form of a compromise (Ext. Kha. 1) dated 25-8-2001 was filed to show that the deceased has shown inclination of not residing in her in-law's house and has once consumed some poisonous substance by levelling a charge that her husband is impotent. The husband of the deceased was even medically examined in District Hospital on 24-8-2001 but was found physically fit in all respects. The informant by this compromise had assured that in case his sister (deceased Smt. Urmila Devi) commits suicide the members of the family of the husband shall not be held responsible for the same. Smt. Urmila Devi, was under the compromise, handed over to the husband to be taken to her marital home. This compromise was also signed by deceased Smt. Urmila Devi and three witnesses named as Madhawa Nand, Bharatu and Jaidev Tewari.
11. On appreciation of the evidence on record the learned Sessions Judge found that the case of the prosecution stand established against the appellant beyond doubt for the offences punishable under Sections 304B and 498A, I. P. C, and accordingly held her guilty and convicted and sentenced her as referred above. Other four accused were acquitted of the charges under Sections 120B, 498-A and 304-B, I. P. C. State did not file any appeal against their acquittal.
12. I have heard the learned counsel for the appellant and the learned Additional Government Advocate and carefully perused the material on record and considered the facts and circumstances of the case.
13. Learned counsel for the appellant submitted that there is no reliable evidence to prove that the appellant subjected the deceased to harassment for and in connection with demand of dowry and cash money and further that the dying-declaration of the deceased clearly appear to be a product of imagination and the same being not true the learned Sessions Judge made an error in coming to the conclusion that the charges were established against the appellant. On the other hand learned Additional Government Advocate while drawing attention to the evidence in the case laid stress on the proposition that the dying-declaration is truthful and the same could very-well be made basis of conviction and therefore the learned Sessions Judge was fully justified in placing reliance on it, also.
14. At the out-set Section 304B, I. P. C, which deals with dowry death, is reproduced as follows :-
'304-B. Dowry death:- (1) Where the death of woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called 'dowry death', and such husband or relative be deemed to have caused her death.
Explanation - For the purpose of this Sub-section, 'dowry' shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years which may extend to imprisonment for life.'
15. In order to convict an accused for offence under Section 304B, I. P. C. the following essentials must be satisfied :
(1) the death of a woman must have been caused by burn or bodily injuries or otherwise than under normal circumstances;
(2) such death must be occurred within seven years of her marriage;
(3) soon before her death the woman have been subjected to cruelty or harassment by her husband or by relatives of her husband; and,
(4) such cruelty or harassment must be for or in connection with demand of dowry.
It is only when the above mentioned essential ingredients are established by acceptable evidence such death shall be called 'dowry death' and such husband or his relatives shall be deemed to have caused her death.
15. Section 113B of the Indian Evidence Act, 1872 is also relevant for the case in hand. Section 113B of the Evidence Act reads as follows :-
' 113-B. Presumption as to dowry death.- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation.- For the purposes of this section 'dowry death' shall have the same meaning as in Section 304B, of the Indian Penal Code (45 of 1860).'
16. As can be seen from the above section also the essential ingredient is that the concerned woman must have been 'soon before her death' subjected to cruelty or harassment 'for or in connection with the demand of dowry'. In the instant case, as is evident from the admitted facts, the first two ingredients are fully satisfied as the death of the deceased Smt. Urmila Devi occurred by burns within seven years of her marriage, therefore, a presumption under Section 113B of the Evidence Act could be available to the prosecution if it has been able to establish that the appellant was demanding dowry which was a harassment to the deceased, provided by preponderance of the probabilities the defence, in this case, could be able to discharge the onus and establish that the death of the deceased was on account of the reason otherwise than the alleged demand of dowry and harassment.
17. Learned counsel for the appellant by drawing attention to the evidence in the case submitted that the remaining two essential ingredients of the offence under consideration have not been satisfied because the prosecution has failed to show by cogent and reliable evidence that appellant had been making undue demand for dowry by way of cash amount and has also been harassing the deceased and further that the learned Sessions Judge wrongly placed reliance on the evidence of the mother of the deceased and her two brothers named above as well as upon the dying declaration taken it to be in conformity with the said line of evidence produced by the prosecution. It need to be pointed out here that the learned Sessions Judge has not fully analyzed the oral evidence in the case and felt contend to dilate upon mainly on the reliability of the dying-declaration of the deceased. The learned Sessions Judge briefly referred to the statements of the informant Rishi Ram (P. W. 1), mother Smt. Mangsiri Devi (P. W. 2), and another brother of the deceased Surendra (P. W. 3) (in paragraph No. 13 of the judgment) to draw inference that the evidence of these witnesses prove that the appellant made illegal dowry demand in the form of cash amount of Rs. 40,000/- from the deceased and told her that if she will not bring the money she will not be permitted to live in peace. The learned Sessions Judge also took into consideration the statement of the mother that the deceased told her that the appellant used to be continuously displeased with her for bringing insufficient dowry and thereby subjecting her to mental harassment. Believing on this statement the learned Sessions Judge came to the conclusion that it has been established beyond doubt that the appellant raised demand for dowry in the form of cash amount and subjected the deceased to harassment for not fulfilling the demand.
18. From perusal of the evidence of the above three witnesses it clearly appear that the learned Sessions Judge had not made proper and fair appreciation of the evidence and at the outset it can safely be said that the submission of the learned counsel for the appellant in that regard is well founded. P. W. 1, Rishi Pal Singh, the brother of the deceased gave out that on the day of the marriage itself the appellant and others named in the F. I. R. have raised some quarrel but the matter was resolved by intervention of the relatives and co-villagers. The witness wanted to show that the dispute was raised in regard to the dowry usually given from the side of the bride at the time of the marriage. No independent evidence had been adduced in that regard. However the evidence of his mother P. W. 2, Smt. Mangasiri Devi belie the claim made by this witness. She gave out that no demand of dowry was raised from the side of the in-laws of the deceased at the time of the marriage and that on the day of the marriage also no demand was raised by them and the marriage was solemnized peacefully. The other witness P. W. 3, Surendra, who is also the brother of the deceased, gave out that no demand of dowry was raised before the marriage by the in-laws of the deceased but on the day of the marriage one of the co accused Satya Prakash had raised some demand. This statement is also not corroborated by any evidence on record. On appreciation of the evidence of these three witnesses no inference that dowry demand was made at the time of the marriage by the appellant or any of the other relatives of the husband can therefore the legitimately raised in this case.
19. Similar view is deducible in regard to the demand of dowry in the form of cash amount after solemnization of the marriage of the deceased. The reason is that the deceased Smt. Urmila Devi visited her mother's house only once after the marriage and at that time according to the prosecution she told her mother about the illegal demand of dowry in the form of cash amount by the appellant and others. P. W. 1 also stated that his sister told about the said demand to his mother and that the similar assertion was made by his sister when he went with her to the house of her in-laws on 25-8-2001 and she was left there in the marital home after a compromise was reached and was reduced in the form of writing (Ext. Kha. 1). This document does not refer to any demand of dowry having been raised by the appellant or any other relatives of the husband and therefore it would not be safe to place reliance on the claim made by the witness that on 25-8-2001 his sister levelled such an allegation in his presence against the appellant. It need to be mentioned here that this witness admit of the compromise entered into on 25-8-2001 and the terms reduced into writing as Ext. Kha. 1 which was as stated above was also signed by his sister and three witnesses one of whom is his close relative (Mausa) Madhwa Nand who was a Head Moharir in District Jail, Pauri.
20. As regards the evidence of P.W.2, Smt. Mangsiri Devi is concerned, she had nowhere stated that the deceased told her that the appellant or any member of the family of the husband raised demand of dowry in the form of cash amount and this is the reason that she had not referred any specific sum of money with reference to any such allegation said to have been made by her daughter. She also gave out that the members of the family of the husband of her daughter have never raised any demand of dowry from her after the marriage. On being analyzed the evidence of this witness also does not indicate that the deceased ever told her that demand of dowry in the form of cash money was made and on account of non fulfillment of the demand of dowry she was subjected to harassment by the appellant or any other family members of the husband.
21. So far as the evidence of another brother, P. W. 3, Surendra is concerned, it need to be stated that according to him his sister, the deceased, told him that the appellant and others have raised a demand of dowry in the form of cash amounting to Rs. 60,000/-. This amount so disclosed is contrary to the amount of Rs. 40,000/-stated by P. W. 1, no figure disclosed by P. W. 2 and therefore it would not have been safe for the learned Sessions Judge to place reliance on the evidence of this witness also and to come to the conclusion that the evidence on record prove that the deceased was soon before her death subjected to harassment by the appellant for or in connection with demand of dowry.
22. The learned Sessions Judge has placed implicit reliance on the dying-declaration of the deceased by treating it to be true and voluntary. It was also observed that the same is in conformity with the evidence produced by the prosecution and therefore the case of the prosecution was established beyond doubt against the appellant that she poured kerosene oil on the deceased and set her on fire causing fatal burn injuries, at about 7 a.m. on 18-9-2001 inside the marital home of the deceased. The learned counsel for the appellant submitted that for several reasons the dying-declaration cannot be believed and the learned Sessions Judge fell in error in placing reliance on it also. It was submitted that looking to the burn injuries suffered by the deceased she could not have, in all probabilities, been able to speak and must have become unconscious instantaneously. It was also submitted that the evidence on record is sufficient to prove that the deceased was not in a fit mental and physical condition at the time of recording of her dying declaration which was nothing but a mere product of imagination. On the other hand learned Additional Government Advocate laid stress on its reliability and truthfulness as the same was recorded by a responsible officer in the presence of Medical Officer. At the outset it need to be stated that under Section 32 of the Evidence Act a dying-declaration is admissible in a Court as evidence but it is essential that the declarant must be in a sound state of mind at the time of making the declaration. The Apex Court in the matter of Lakshman v. State of Maharashtra; 2002 AIR SCW 3479 (3482): (2002 Cri LJ 4095 (4097, 4098) laid stress that 'the dying declaration should be of such nature as to inspire full confidence by the Court in its truthfulness and correctness. The Court however has to always be on guard to see that the statement of the deceased was not as a result of tutoring or prompting or a product of imagination. The Court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant.'
23. Keeping in view the settled principle it need to be seen as to whether the dying declaration in question is true and was rightly relied upon by the learned Sessions Judge. In the face of the facts of the case it will be desirable to reproduce the dying declaration (Ext.Ka.7), which is as follows :-
e`R;qiwoZ c;ku
c;kuJherh mfeZyk mez 20 o'kZ iRuhJh jktsUnz izlkn frokjh fuoklh n;wjh Fkkuk peck rglhy fVgjh fnukad18&9&2001 LFkku elhg vLirky peck le; 10&40 ,- ,e-
Jherh mfeZyk iRuh Jh jktsUnz izlkn frokjh mez20 o'kZ fuoklh xzke fn;wjh izkr% 9-40 ij HkrhZ dh xbZ rFkk bl le; c;ku nsusdh fLFkfr esa gSA
g- eksgj MkDVj jkts'k flag]
,e-ch-ch-,l-] ,e-,e-]
Mk;jsDVj]
ff'p;u gklfiVy] pEck
Vsgjh x
mDr c;ku esjs lEeq[k fy;k x;k gSA
g- rglhynkj fVgjh
18&9&01
11-30 ,-,e-
vaxqBk fu'kkuh
Jherh mfeZyk
g- eksgj Mk- jkts'k flag]
,e-ch-ch-,l-] ,e-,l-]
Mk;jsDVj]
ff'p;u gklfiVy] peck le; &11-30 ,-,e-
Vsgjh x
25. It may be recalled that Smt. Urmila Devi was brought to the Christian Hospital, Chamba at about 9 a.m. on 18-9-2001 and she was medically examined by Dr. Rajesh Singh Sah (P. W.4), who prepared injury report (Ext. Ka.3) as follows :-
'This is to certify that I have examined patient Urmila aged 20 years W/o Rajendra R/o village Dewari, Tehri Garhwal on 18-9-2001 at 9-05 a.m. I have found following injuries on her person :-
Injuries : 100% deep burn all over the body. No blisters.
Pulse, B. P. not readable.
Type of injury: Fresh.
Mode of Injury : Flame burn.
Nature of injury : Dangerous to life.
M. I. (Mark of Identification) : Not visible.'
26. The Medical Officer in his statement gave out that the patient was in a state of shock on account of burns which were received within a period of 6 to 8 hours prior to the medical examination. Since it was not noted as to what was the source of flame burns the Medical Officer testified that if the source was to be the kerosene oil its smell or odour was most likely to remain till the patient was brought to the hospital and was examined by him. He also testified that the patient Smt. Urmila Devi succumbed to her burn injuries next day on 19-9-2001 at 7.50 p.m. In regard to the recording of the dying declaration (Ext. Ka. 7) he stated that before recording of the dying declaration on 18-9-2001 he had certified that the patient was in a fit mental and physical condition to give the statement which was recorded from 10.40 a.m. till 11.30 a.m. by the Tehsildar. Tehri Garhwal Sri Pratap Singh Sah (P.W.7). He also gave out that the patient was not given pain killer injection on account of the patient being in shock, although he admitted that if a patient raise shouts and shrieks on account of pain normally pain killer medicine is administered. He also stated that the patient in shock can not speak correctly. He further stated that the dying declaration which was started to be recorded at 10.40 a.m. should have been completed in 5 to 10 minutes and that the same could have been recorded by 10.50 a.m. However, the time shown after completion of the recording of the dying declaration is 11.30 a.m. which shows that 50 minutes was taken to record the dying declaration. He also gave out that he had not given the certificate that the patient continued to be in fit mental and physical condition from 10.40 a.m. to 11.30 a.m.. the duration of the recording of the dying declaration and that if the Tehsildar was to ask from him he could have given such a fitness certificate on the dying declaration itself. He also gave out that during the entire period of the recording of the dying declaration he was not present there by the side of the patient. He could not tell as to how many times during that period the patient became unconscious and that this aspect can only be affirmed on perusal of the record. He also stated that it was a case of 100% burns and that the hands and fingers of the patient have also sustained burns. He denied to the suggestion that since it was a case of 100% burns the patient was not in a position to speak. He also denied to the suggestion that the patient had not given any dying declaration. He also refuted to the suggestion that the patient remained unconscious during whole of the period she remained admitted in the hospital and till she died on account of burn injuries.
27. The evidence of the Tehsildar, Sri Pratap Singh Sah (P.W.7) also need reference here in order to consider the trustworthiness of the dying declaration. This witness stated that he went to record the dying declaration of Smt. Urmila Devi on the instruction of S. D. M. Tehri. He started recording the statement on 18-9-2001 at 10.40 a.m. and during the entire period of the recording of statement the Medical Officer (Dr. Singh) remained present with him. He had found that declarant was having burns all over the body and this was also affirmed by the Medical Officer. He slated that he had put questions to the declarant to which replies were given in Garhwali dialect and which were written by him in Hindi. During the period of recording of the statement the declarant remained conscious although she was writing with pain on account of the burns. He also stated that he did not feel it necessary to obtain any fitness certificate of the declarant from the Medical Officer to the effect that she remained conscious from 10.40 a.m. to 11.30 a.m. He further stated that impression of the right thumb of the declarant Smt. Urmila was obtained on the dying declaration and that the right thumb was not found burnt. He denied to the suggestion that even both the thumbs of Smt. Urmila had burn injuries. He also stated that on the dying declaration (Ext. Ka. 7) the Medical Officer had merely put his signatures whereas the endorsements in the beginning of the statement and at the foot of the declaration being referred to that of the Medical Officer were made by some official of the hospital. He denied to the suggestion that Smt. Urmila was not in a fit mental and physical state at that time to give any statement and that he had prepared the same out of his own imagination.
28. From above evidence on record the broad factors which emerges out are that Smt. Urmila Devi had sustained almost 100% burns and her condition was highly precarious when she was brought to the hospital at 9.00 a.m. on 18-9-2001. According to the evidence of the Medical Officer the burns were sustained about 6 to 8 hours before the medical examination. Due to serious condition even the pulse and B. P. of Smt. Urmila was not readable. There can not be any doubt that during a period of about 6 to 8 hours the condition of the victim must have worsened further and it can not safely be believed that even after about 2 hours of the admission in the hospital she was in such a fit state of physical and mental health as may be able to record detailed and neatly structured and full of complete facts dying declaration for about 50 (fifty) minutes. It appear that the Medical Officer was also conscious of this aspect of the state of physical and mental condition of the victim and he gave out that he was not present with the victim all the time when the dying declaration was recorded by the Tehsildar. This also seems to be the reason that at the foot of the written dying declaration no certificate was appended to the effect that the declarant remained fully conscious during the duration of the recording of the dying declaration by the Tehsildar. It also appear that the medical officer had merely appended the signature and the endorsement referable to him as to the physical and mental state of the declarant was endorsed by some one else as stated to by the Tehsildar (P.W.7) and in the totality of the circumstances of the case as submitted by the learned counsel for the appellant it cannot safely be accepted that the said victim/declarant was in a fit state of physical and mental health as to be able to record the dying declaration.
29. Further, as is evident from the injury report (Ext. Ka. 3), even mark of identification of the victim was not visible due to deep burns all over the body and this was the reason that no mark of identification was mentioned on it. Normally thumb impressions of the victim on the injury reports are obtained and it appears that due to burns this was not found possible at the time of the initial examination. The medical officer has also testified that even the hands and fingers of the victim have burns. In such a situation it does not stand to reason as to how the thumb impression of Smt. Urmila could have been obtained by the Tehsildar on the dying declaration (Ext. Ka.7) and in the totality of the circumstances of the case it clearly appear that this witness gave false statement that the fingers of Smt. Urmila Devi had no burns and therefore thumb impression was obtained on the dying declaration.
30. It also need repetition that the so called dying declaration (Ext. Ka.7) clearly appear to be a detailed, perfectly prepared and full of facts statement which could not be at any rate expected to have been given by Srnt. Urmila Devi considering her precarious condition due to almost 100% burns and as also referred above.
31. Another glaring aspect of the matter is that according to the declarant two of the children of the appellant aged about 4 and 1 year and real sister of the declarant aged about 10 years were also sleeping in the same room in which according to the declarant the appellant poured kerosene oil and set her on fire by match stick. The room in which the declarant was sleeping on the floor was shown in the site plan (Ext. Ka. 14). It cannot safely be accepted that the appellant would have been so careless and negligent as to put her own children to danger of being receiving burn injuries and this aspect of the matter also support the above inference that the dying declaration is a product of imagination. Presence of 10 years old sister of the declarant in the room was probably shown so that if necessary she could be examined a witness in the case but prudently enough it was not so done and this feature further support the above conclusion. In the statement it has also been mentioned that about 10 or 15 days before the occurrence also the appellant made an attempt to eliminate the declarant Smt. Urmila Devi by administering her some poisonous substance. Detail to this effect appear to have deliberately been given to meet out the circumstance available against the victim herself. As per the compromise dated 25-8-2001 the victim has once consumed some poisonous substance to commit suicide and that there being likelihood of the said victim keeping herself in similar frame of mind and to take the extreme step again the family members of the husband were prudently reluctant to permit her to remain with them or in the marital home. However on account of the compromise and on the assurance given by the informant and other witnesses who were related to the victim she was sent to her marital home. Since that strong circumstance was appearing against the victim and in any case against the prosecution, in order to explain the same, the reference was thus made in the so-called dying declaration and therefore this aspect of the matter further lent credence to the inference that the dying declaration is a product of imagination.
32. The learned counsel for the appellant also drew attention to the fact that there is nothing on record to show that the Medical Officer attending to the deceased in the hospital sent any memo to the police station to send some officer to record the dying declaration of the deceased. Had it been so Dr. Rajesh Singh (P. W. 4) would have given evidence to this effect also. There is also nothing to show that from the police station a reference was sent to the Sub Divisional Magistrate to record the dying declaration. No G. D. report to this effect was brought on record. Nothing has also been said about this by the Investigating officers S. I. Digambar Singh Rawat (P.W.8) and Dy. S. P. Jagat Ram Joshi (P.W.9). As regards the statement of Tehsildar Pratap Singh Sah (P. W. 7) is concerned he merely gave out that he was deputed by the Sub Divisional Magistrate to record the dying declaration of the deceased but no written order to this effect was brought on record. In these circumstances the suggestion given to this witness that no statement was given by the deceased and that the so called dying declaration was got prepared by him fictitiously at the instance of the informant of the case cannot said to be without any substance despite the suggestion having been denied by this witness.
33. Further, the attention was also drawn to the inquest report prepared by the said Tehsildar witness on 20-9-2001. Inquest report, Ext. Ka. 8 is on the record. In the inquest report the Panches appointed endorsed their opinion that the deceased had set herself to fire and succumbed to the burn injuries sustained by her. The Tehsildar while endorsing his own opinion in the inquest report merely referred to the cause of death as burn injuries but nowhere made any reference to the dying declaration recorded by him which fact became relevant after the above endorsement was made by the Panches appointed at that time. The inquest report is also indicative of the fact that the inquest was held on the basis of the information received about the death of the deceased from the hospital, entry of which was made at G. D. report No. 26 of 19-9-2001 and the copy of the F. I. R. alleged to have been lodged at the police station at 21. 45 on 18-9-2001 was not available with the said witness when inquest was held on 20-9-2001. This also appears to be the reason that the check F. I. R. was not one of the seven documents mentioned in the inquest report and which were sent with the dead body for post mortem. The copy of the G. D. included in the list of the seven documents is the one which was recorded at report No. 26 on 19-9-2001 when information of death was received from the hospital. In the circumstances the submission of the learned counsel for the appellant that the F. I. R. of the case was not even in the existence when the steps towards the investigation of the case have already been taken, cannot be said to be without any substance and further that the Tehsildar, Tehri Garhwal was like the informant was interested that strong case may be set up against the. family members of the husband of the deceased and that make a reason also to bring about a neatly structured and detailed dying declaration as a result of product of imagination when it was certain that the deceased while being admitted in the hospital was not in a fit mental and physical state to record her dying declaration. In turn the material on record and the evidence as discussed above also tell upon the genuineness of the F. I. R. (Ext. Ka.1) which clearly appear to have been prepared and lodged after due deliberation and consultation. It is also of significance that Advocate Sri R. K. Joshi is the scribe of the written report which had been registered under the circumstances stated above.
34. For the reasons aforesaid and the circumstances of the case it can safely be accepted that the dying declaration was not given by Smt. Urmila Devi and it was falsely procured and prepared in order to support the case against the appellant. The learned Sessions Judge failed to consider and analyze the dying declaration and the related evidence in proper perspective and wrongly placed reliance on it in proof of the charges against the appellant.
35. It could not be disputed that Smt. Urmila Devi succumbed to burn injuries sustained by her. It is in the evidence of the informant Rishi Ram (P. W.1) that the husband and other family members were reluctant to keep the deceased with them and further that the deceased herself was avoiding to live in her nuptial home. She had even levelled an allegation of impotency of her husband which according to the evidence of P. W. 1, turned out to be false on medical examination. She had also tried to commit suicide in the past and on account of this the husband and family members were apprehensive of her frame of mind to make similar attempt in future putting them in trouble. By way of compromise on 25-8-2001 the deceased was made to agree to reside in the nuptial home with the husband and others and it appears that she was not reconciled to her sending to her husband's house and on account of frustration she committed suicide by setting herself to fire. The suggestion given to the informant to put forward his defence case cannot be said to be without any meanings because the possibility cannot be ruled out that as suggested the deceased was interested in marrying herself with some other person of her choice and this was a reason that she made false claim of impotency of her husband also, so that she may have some reason to keep herself away from her nuptial home. She had even made false claim of illicit relations of the appellant with her husband despite at the same time claiming her husband to be impotent. The attending circumstances and the facts borne out of the compromise dated 25-8-2001 make out a possibility that the deceased was not reconciled to her marriage and out of frustration she took extreme step of committing the suicide although she had failed in earlier attempt and was saved.
36. In view of the discussions aforesaid I have no hesitation to come to the conclusion that the other two essential ingredients of the offences, with which the appellant was charged, were not established in the sense that the deceased was not subjected to cruelty or harassment for or in connection with the demand of dowry soon before her death. Rather, the preponderance of the probabilities lead to an inference that the deceased in order to commit suicide set herself to fire by the reason of which a false case was set up against the appellant and others and that the death of the deceased was on account of suicide un-connected with any harassment at the hands of the appellant or some one else.
37. In short the charge under Sections 304B/498A I. P. C. have not been established beyond doubt by the evidence of the prosecution and the judgment dated 17-7-2003 of the guilt of the appellant and her conviction and sentence as recorded by the learned Sessions Judge is liable to be set aside.
38. The appeal is accordingly allowed. The appellant Smt. Nirmala Devi alias Ghunghera Devi is not held guilty and is acquitted of the charges under Sections 304B/ 498A, I. P. C. The appellant is in jail. She shall be released forth-with, if not wanted, in connection with any other criminal case.
39. Let the lower Court record be sent back to the Court concerned for compliance. Compliance report be submitted in a month.