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2009 Supreme(All) 3522
[2010(1) ADJ 225 (DB)]
ALLAHABAD HIGH COURT
BEFORE : S.K. SINGH AND R.A. SINGH, JJ.
Smt. SHYAM PYARI AND OTHERS .....Appellants (In Jail)
Versus
STATE OF U.P. ...Respondent
(Criminal Appeal No. 2525 of 2001, decided on 12th November, 2009)
Counsel :
C.H. Singh Gautam, Abida Sayed, Manoj Mishra, M.W. Siddiqui for the Appellants; Km. Anjum Haq, A.G.A. for the Respondent.
Headnote:(A) (Indian) Penal Code, 1860—Sections 304-B/34 and 498-A—Dowry Prohibition Act, 1961—Section 3/4—Evidence Act, 1872—Section 32—Dowry death—Cruelty—Conviction—Sustainability of—Conviction based on dying declaration—Corroborated by medical evidence and circumstantial evidence—No evidence to show that victim was unconscious at time of recording of statement—No evidence to show that victim was cooking at stove at time of occurrence—Dying declaration neither involuntary nor tutored—It is trustworthy—Dying declaration corroborated by circumstances of case—Rule of caution followed—Dying declaration consistent—Victim was in a position to give declaration—Conviction upheld. [Paras 30, 32, 34 and 35]
(B) Dying declaration—American Jurisprudence thereunder—Test for—Where there is a settled expectation of death—Core concept is that expectation of death must be absolute—And not susceptible to doubts—Further, there should be no chance of operation of wordly, motives. [Para 29]
(C) Criminal Trial—Dying declaration—Admissibility of—Only when person making such statement is in hopeless condition—And expecting imminent death. [Para 30]
(D) Evidence Act, 1872—Section 32—Dying declaration—Rule of evidence—Section 32 of Act is an exception of rule of hearsay—Makes admissibile statement of a person who dies—Whether death is homicide or a suicide—Provided statement relates to cause of death—Or exhibits circumstances leading to death. [Para 30]
(E) Criminal Trial—Dying declaration—Conviction—Whether can be based thereon—No absolute rule of law can be laid down that dying declaration cannot form sole basis of conviction—Unless it is corroborated—Rule requiring corroboration is merely rule of prudence. [Para 32]
Result; Appeal Partly Allowed.
Honble R.A. Singh, J.—This appeal has been preferred by appellants Smt. Shyam Pyari, Meeta Rajbhar, Shyam Jeet Rajbhar and Ram Jeet Rajbhar against judgment and order dated 19.7.2001, passed by Additional District & Sessions Judge, Varanasi in Sessions Trial No. 938 of 1998, State v. Ram Jeet Rajbhar and 5 others, under Section 304-B/34 and 498-A, IPC and Section 3/4, Dowry Prohibition Act, P.S. Jansa, District Varanasi, whereby all appellants except Shambhu Rajbhar and Amravati have been convicted and sentenced under Section 304-B read with Section 34 of IPC to undergo imprisonment for life and under Section 498-A to undergo rigorous imprisonment for three years as well as under Section 3/4, Dowry Prohibition Act to undergo rigorous imprisonment for three years. All sentences have been directed to run concurrently. But accused Shambhu Rajbhar and Smt. Amravati have been acquitted of above charges framed against them.
2. Prosecution case briefly described in FIR is that Gita Devi aged 20 years, sister of informant Munna Lal Rajbhar was married with appellant Ram Jeet Rajbhar, son of Meeta, resident of Village Titkhauri, P.S. Jansa, District Varanasi about three and half years before this occurrence, in which informant parted with dowry according to his capacity. The family members of bridegroom thereafter continued to make demand of money, utensils, television and golden ornaments. On 26.1.1997 in the afternoon Shambhu Rajbhar, brother-in-law of appellant Ram Jeet informed the informant Munna Lal Rajbhar at his house about his sister Gita being seriously ill, at which informant along-with his younger brother Bachau @ Dau reached Titkhauri and came to know that his sister was in burnt condition and confined in a kothri of weaving factory near house of accused persons. The informant etc. then found their sister Gita lying in burnt condition on a cot, at which they got her admitted in Kabir Chora Hospital at 9 PM. The victim Gita made her statement before them that her husband Ram Jeet Rajbhar and his elder brother Shyam Jeet Rajbhar had been pressurising her to bring Television for last ten days and on 25.1.1997 at about 9 PM, they sprinkling kerosene oil burnt her by setting fire and also confined in the said kothri and on the alarm raised by her the inhabitants of nearby places took her out and carried to a doctor at Akelwa crossing and again brought her to the house at about 11 PM. The accused persons did not get her treated because they intended to kill her.
3. The victim Gita was then brought by informant party to S.S.P.G. Hospital and was medically examined on 26.1.1997 at 9 PM vide medical report (Ex. Ka 3) and admitted for treatment. On the basis of written report (Ex. Ka 1) lodged by Munna Lal a case under Section 307/506/498-A, IPC and Section 3/4, Dowry Prohibition Act was registered at P.S. Jansa on 28.1.1997 at 1 PM and investigated by the police.
4. During her treatment victim died at S.S.P.G. Hospital, Varanasi on 5.2.1997 at 7.20 PM due to septicaemiac shock as a result of infected burn injuries. The dying declaration (Ex. Ka 6) of victim Gita was also recorded by Sri Radhey Shyam Mishra Additional City Magistrate, Varanasi on 27.1.1997 at 11.45 AM after getting a fitness certificate from the doctor.
5. The Investigating Officer then altered the case under Section 304-B, IPC, along with other sections and inquest proceedings were conducted by Sri Awdhesh Mani Tripathi Additional City Magistrate, IV, Varanasi on 6.2.1997 at 1.20 P.M. in S.S.P.G. Hospital Varanasi vide inquest report (Ex. Ka 8) and autopsy of dead body was also conducted by Dr. G.S. Jaiswal and Dr. C.M. Tiwari on 7.2.1997 vide post-mortem report (Ex. Ka 2). The Investigating Officer on completion of investigation submitted chargesheet (Ex. Ka 10).
6. The Chief Judicial Magistrate Varanasi after having supplied copies of all documents to the accused persons under Section 207, Cr.P.C. committed them to the Court of Sessions for trial vide his
