SHORT NOTE
ALLAHABAD HIGH COURT
Arvind Kumar Tripathi and Pramod Kumar Srivastava, JJ.
Saudan Singh & Anr. —Appellants
versus
State of U.P. —Respondent
Criminal Appeal No.4395 of 2011
Decided on 5.5.2015

IMPORTANT POINT
Not believable that in-laws, who used to live about 100 kms away from victim’s residence, came to her house only for burning, because she not given grand-child, especially when their son used to love and had very good relation with victim.

Headnote:(i) Indian Penal Code, 1860 — Section 498 & 304-B — Dowry Prohibition Act, 1961 — Section 3/4 — Criminal Procedure Code, 1973 — Section 313 — Dowry Death — None of prosecution witnesses seen incident of burning — Complainant lodged report for offence u/s 498-A, 323 IPC and 3/4 Dowry Prohibition Act — After death of victim S. 304-B added and offence charge sheet submitted by IO — It proved that deceased never subjected to cruelty for demand of dowry — In dying-declaration no averment regarding demand or harassment for dowry — On many point statement of three witnesses of fact found unbelievable — HELD — Therefore rightly disbelieved by trial court which acquitted all accused persons from charges of offence under S. 498-A, 304 B IPC and 3/4 Dowry Prohibition Act. [Paras 23, 26]

       (ii) Indian Penal Code, 1860 — Section 498 & 304-B — Dowry Prohibition Act, 1961 — Section 3/4 — Criminal Procedure Code, 1973 — Section 313 — Dowry Death — Statement of victim recorded as ‘dying-declaration’ — So learned Sessions Judge accepted it as gospel truth — Sessions Judge not considered most of facts mentioned in ‘dying-declaration’ — Not supported by evidences but proved incorrect — Real cause of death not discussed or appreciated by trial Court in circumstances — When considerable delay between burning and death — Between this period lapse in treatment committed — It not considered as to whether author of apprehension alleged ‘dying-declaration’ any serious or real apprehension of death at time of making it — Whether she expecting her survival or not — HELD — Trial Court failed to apply its judicial mind at time of relying on it and acted with material error and irregularity. [Para 34]

       (iii) Indian Penal Code, 1860 — Section 498 & 304-B — Dowry Prohibition Act, 1961 — Section 3/4 — Criminal Procedure Code, 1973 — Section 313 — Dowry Death — Cause of death — Prosecution case that after alleged burning victim admitted in Hospital — Remained there till time of her death — PW2 specifically stated during cross-examination that victim remained in Hospital for 20-25 days — During this period much money spend so she taken back to home — But when condition deteriorated then she again sent to Hospital where she died on same day of her admission — Victim taken off from treatment without permission of doctors and kept at complainant’s house without evidence of proper treatment — When victim kept in parental house without treatment for sufficient time — Her injuries become sceptic that resulted in her death — HELD — These facts lead to believable conclusion that at time of recording of dying-declaratory statement — About one and half month earlier to her death she had no apprehension of death — Under influence of her father complainant given statement before Magistrate in hospital — Nut actually she died at her parental house due to slackness and negligence in her treatment. [Para 35]

       (iv) Indian Penal Code, 1860 — Section 498 & 304-B — Dowry Prohibition Act, 1961 — Section 3/4 — Criminal Procedure Code, 1973 — Section 313 — Dowry Death — Victim caught fire and burnt any time probably at her husband’s house — Where she treated then she admitted in Hospital by husband — At that time she came in contact of her father-complainant — After sometime financial problem arose as her husband-accused unable to bear expenses of treatment and he left her with her father and gone for arrangement of money — Doctor noted when she bought dead with old burnt case — Cause of death as “death due to septic shock as result of out waist burn injury” — HELD — Appellants cannot be disbelieved that cause of death neither due to inflicted of burn injury for demand of dowry — Nor solely because of burn injuries but due to serious negligence in her treatment — And complainant taken her from hospital to his house and kept without treatment so burn injuries became septic due to which she died — Cause of death mainly due to criminal negligence in her treatment and she died due to septic shock of earlier burn injuries. [Paras 36 & 37]

       (v) Indian Penal Code, 1860 — Sections 498 & 304-B — Dowry Prohibition Act, 1961 — Section 3/4 — Criminal Procedure Code, 1973 — Section 313 — Dowry Death — Dying-declaration statement of deceased recorded at time when not expecting any apprehension relating to her death — And mentally alert and in conscious stage — But under influence and advice of her father when she gave her allegedly dying declaratory statement before Magistrate — These facts not discussed and considered by Judge at time of passing of judgment — Trial Court lightly taken statement of victim as dying-declaration and convicted appellants on that ground alone — Without considering evidences, facts and circumstances — HELD — Such statement cannot be made sole basis of conviction — Judgment of conviction without considering these facts apparently erroneously, unsupported by suitable evidence and cannot sustain. [Para 39]

       Result: Appeal allowed.