The reliability of dying declaration, the role of hostile witnesses, and the distinction between murder and culpable homicide not amounting to murder in cases of death due to septicemia.

JUDGMENT :

Ajai Tyagi, J.

1. This appeal has been preferred against the judgment and order dated 4.1.2020, passed by the learned Additional District and Session Judge, Court No.6, Pilibhit, in Session Trail No.123 of 2018 arising out of Case Crime No.34 of 2018 under Section 302 IPC, Police Station-Diyoriya, District-Pilibhit, whereby the appellant is convicted and sentenced for the offence under Section 302 IPC for life imprisonment with a fine of Rs.50,000/-and in default of payment of fine, further imprisonment for one year.

2. None has appeared for appellant. We are intending to modify the order in favour of the appellant. Hence, we have heard and taken assistance from Shri N.K. Srivastava, learned AGA and perused the record.

3. The brief facts of the case are that a written report was submitted by informant-Jagdish Prasad at Police Station-Diyoriya Kalan, District-Pilibhit on 23.2.2018 with the averments that the daughter of informant, namely, Roopwati was married to Rajendra Kumar before three years of occurrence. Informant had given sufficient dowry as per his financial status, but in-laws of her daughter were not satisfied and continuously demanding the additional dowry. Due to non-fulfilment of demand of additional dowry, she used to be beaten and tortured. On 22.2.2018, at about 11:00 a.m., Rajendra Kumar (husband of Roopwati), Sunil Kumar (dewar) and her mother-in-law poured kerosene oil on Roopwati and set her ablazed. On getting the information by neighbours, informant and others went to the house of in-laws of her daughter and found her in burning condition where she told them that aforesaid persons had set her ablazed for want of additional dowry. She was admitted in the hospital at Pilibhit.

4. On the basis of aforesaid, written report, first information report was registered on 23.2.2018 under Section 498-A, 307, 323 IPC and Section 3/4 Dowry Prohibition Act against all the accused persons. Investigation was started by the Investigating Officer. After 9 days of occurrence, injured-Roopwati succumbed to injuries and the case was converted into Section-304 B and 302 IPC. The Investigating Officer visited the place of occurrence and site plan was prepared. During the course of investigation, I.O. Recorded the statements of witnesses under Section 161 Cr.P.C. Burnt clothes were recovered by I.O. of which recovery memo was prepared. Dying-Declaration of injured /deceased Roopwati was recorded at District-Pilibhit on 23.2.2018 by Naib Tehsildar, Pilibhit, Sadar. After the death of injured Roopwati, proceedings of panchayatnama were conducted and enclosed report was prepared. Dead-body was sent for postmortem where postmortem was conducted on dead-body and postmortem report was prepared. After conclusion of investigation, I.O. Submitted charge-sheet against Rajendra Kumar and Sushila Devi under Sections 498A, 304B, 302 IPC and ¾ of Dowry Prohibition Act. Named accused Sunil Kumar was exonerated as no sufficient evidence was found against him.

5. The case being triable exclusively by court of session, was committed by Magistrate to the court of session. Learned trial-court framed charges against the appellant under Sections 498A, 304-B, 302 IPC read with Section 34 IPC and Section 4 of Dowry Prohibition Act. Accused-appellant denied the charges and claimed to be tried.

6. Prosecution examined following witnesses:

7. Apart from aforesaid witnesses, prosecution submitted following documentary evidence, which was proved by