A conviction cannot solely rely on a dying declaration unless it is proven to be voluntary and reliable, with the accused given a chance to explain incriminating evidence.

JUDGMENT :

Manish Kumar Nigam, J.

1. Criminal Appeal No. 437 of 2017 has been filed against the judgment and order of conviction dated 31.07.2014 passed by Additional Sessions Judge, Court No.4, Maharajganj and the sentence awarded on 25.08.2014 in Sessions Trial No. 18 of 2013 (State Vs. Radhey Jaiswal) and Sessions Trial No. 101 of 2013 (State Vs. Virendra @ Santosh Jaiswal and 3 others), whereby the sessions court has convicted Radhey Jaiswal (accused-appellant) in Sessions Trial No. 18 of 2013 (State Vs. Radhey Jaiswal) for offence punishable under Section 302 I.P.C. and sentenced him for life imprisonment and has ordered him to pay a fine of Rs.10,000/- (in default of payment of the fine, he had to further suffer rigorous imprisonment for a period of one year). The accused-appellants, Munna Jaiswal, son of Radhey and Sita Devi, wife of Munna Jaiswal, were also convicted by the sessions court in Sessions Trial No. 101 of 2013 (State Vs. Virendra @ Santosh Jaiswal and 3 others) for the offence punishable under Section 302 I.P.C. and sentenced them for life imprisonment and has ordered them to pay a fine of Rs.10,000/- (In case of default of the payment of fine, they had to further suffer rigorous imprisonment for a period of one year). All the appellants in Appeal No. 437 of 2015 have been acquitted by the trial court under Sections 498-A, 304-B, 506 I.P.C. and under Section 3/4 Dowry Prohibition Act by the same judgment.

2. The factual matrix of the case is that the informant, namely, Chunni Devi, wife of late Pradeep Jaiswal submitted a written complaint (Ex.Ka-1) dated 03.09.2012 on which the first information report (Ex.Ka-8) was registered in Case Crime No. 1041 of 2012 under Sections 498-A, 323, 506, 307 I.P.C. read with Section 3/ 4 of Dowry Prohibition Act at P.S.-Ghughuli, District-Maharajganj against Virendra @ Santosh s/o Radey Jaiswal (husband), Munna S/o Radhey (Devar i.e. Brother-in-law), Kaushilya W/o Radhey (Saas i.e. Mother-in-law), Sita Devi (Devarani i.e. Sister-in-law) and Radhey Jaiwal (Sasur i.e. Father-in-law).

3. As per the first information report, the informant stated that her daughter Gudiya was married to Santosh S/o Radhey Jaiswal about six years back. It was further stated by the informant that her daughter used to come to her house and used to complain to the informant that Virendra @ Santosh used to torture her daughter for dowry. On 02.09.2012 at about 3:00 A.M. her daughter Gudiya was burnt. It was further stated by the informant that Virendra @ Santosh requested J.P. Jaiswal son of unknown on mobile to get her daughter eliminated and whatever money would be required, the same will be paid. On the instigation of J.P. Jaiswal, Munna S/o Radhey Jaiswal, Sita Devi, Kaushilya Devi and Radhey poured kerosene oil on her daughter while she was sleeping in her room and set her on fire. As she was burning and crying, people from the vicinity come and somehow the informant came to know about the incident and rushed to the District Hospital from where her daughter was referred to Gorakhpur Medical College and thereafter, admitted in A-1 Hospital, Mohaddipur.

4. The statement of the patient i.e. Gudiya was recorded on 02.09.2012 by the Naib Tehsildar at about 02:25 P.M. at Mohak Hospital Medical College, Gorakhpur (Ex. Ka-6/16) and thereafter once again the dying declaration of Gudiya was recorded on 08.09.2012 at about 07:15 P.M. by Naib Tehsildar, Sadar Gorakhpur which was marked as Ex. Ka-7.

5. After the first information report was lodged, the police investigated the crime and after collecting the evidence a charge-sheet dated 23.11.2012 was submitted against Radhey Jaiswal S/o Rangi Lal Jaiswal (Ex. Ka-11) under Sections 498-A, 323, 506, 302 I.P.C. A second charge-sheet dated 19.12.2013 was submitted by the Investigating Officer against Virendra @ Santosh Jaiswal s/o Radhey, Munna Jaiswal S/o Radhey, Smt. Kaushilya Devi w/o Radhey and Sita Devi w/o Munna Jaiswal (Ex. Ka-12) under Sections 498-A, 323, 50