RAMESH SINHA, J. - (1.) HEARD learned AGA for the State and perused the Trial Court judgment and record.
(2.) THIS application for leave to appeal has been preferred against the judgment and order dated 1.9.2011, passed by the Additional Sessions Judge, Court No.1, Bulandshahar, by which the accused- respondents have been acquitted in S.T. No. 1202 of 2007 arising out of case crime No. 159 of 2007, under sections 304-B, 302/34, 498-A, I.P.C. and section 3/4 Dowry Prohibition Act, Police Station-Jahangirabad, District-Bulandshahar. The prosecution case in brief is that an FIR was lodged by Faujveer, father of the deceased, stating that his daughter Neetu was married a year ago prior to the incident i.e. 7.5.2006 with one Sonu, son of Suresh Giri, resident of Village Mullani, Police Station- Jahangirabad, District Bulandshahar. The informant's daughter Neetu was living happily with her husband Sonu, but parents of the Sonu after some days of the marriage started harassing Neetu with the aid of one Sanjay who was their relative and at his instance used to demand dowry from them. For the last one month, the parents of Sonu and Sanjay used to harass her for bringing Rs.50,000/-. On 13.5.2007 at about 8.30 A.M., the informant received a phone call in which he was asked to come immediately to Village Mullani as something had happened to his daughter and son-in-law. The informant along with his wife reached there at 10 A.M. where they saw that no family members were present in the house and the people informed them that their daughter and son-in-law has been taken to Jahangira-bad to a doctor. When the informant reached the doctor then he came to know that his son-in-law Sonu has died and his daughter Neetu was struggling for life. He alongwith his wife took his daughter Neetu to the District Hospital Bulandshahar and on the way she became conscious and on being asked by the informant and his wife, she informed them that her father-in-law and mother-in-law at 8 A.M. had given tea to her and her husband Sonu. After taking the same, their condition deteriorated. The informant and his wife admitted Neetu in District Hospital, Bulandshahar from where in the evening, the doctors advised him to take his daughter to Ghaziabad Sarvodaya Hospital, on which the informant took his daughter to Ghaziabad Sarvodaya Hospital where his daughter died on 14.5.2007 at 6.55 P.M. in the evening. The post-mortem of deceased-Neetu was conducted on 15.5.2007 at Ghaziabad and thereafter the last rites were performed in Ghaziabad itself. The FIR about the incident was lodged by the informant on 16.5.2007 at 12 noon at Police Station- Jahangaribad, District Bulandshahar. The Trial Court acquitted the accused-respondents on the ground that all the witnesses of fact i.e. PW1- Faujveer, informant father of the deceased, PW2- Omwati (mother of the deceased), PW3- Arjun Giri PW4- Srimati (villager), PW5-Harish Chand (uncle of deceased), PW6-Smt. Hemwati (aunt of the deceased), PW7-Babita (aunt of the deceased), PW8-Ranvir (uncle of the deceased) & PW9-Vijay Pal Giri, who is neighbour of the deceased, have turned hostile and they did not support the prosecution case. PW18, Tehsildar Jeet Singh Ram, is said to have recorded the dying declaration of the deceased Neetu in which she has stated that she was married with Sonu son of Suresh Giri prior to one year. In the morning on 13.5.2007 at about 8 A.M. her mother-in-law prepared tea which was taken by her and her husband Sonu. There was no other person present while they were having tea besides her husband, father-in-law and mother- in-law. After about 1/2 an hour of taking the tea, there was some uneasiness in her and she was taken to the doctors at Jahangirabad and thereafter she did not know where she was taken.
(3.) THE Trial Court disbelieved the dying declaration of Smt. Neetu on the ground that it was totally inconsistent with the medical evidence as her husband Sonu was also found dead as he suffered injuries on his head, which was the cause of his death and not as a result of poisoning. Hence the Trial Court found the dying declaration of Smt. Neetu to be suspicious, hence he disbelieved the same and acquitted the accused-respondents. The Trial Court further found that it was highly improbable that the accused-respondents who are parents of Sonu who was their only son, could be murdered by them by giving him any poisonous substance, as stated by Smt. Neetu in her dying declaration. Moreover, the death of Sonu had taken place in some other manner and not as stated in the dying declaration by the deceased Smt. Neetu. Hence in the circumstances, the Trial Court discarded the dying declaration of Smt. Neetu and acquitted the accused-respondents which was the only evidence against them.;