Rakesh Tiwari - (1.) -Heard Sri H. C. Mishra, counsel for the appellants, Addl. Government Advocate and perused the record.
(2.) THE question of grant of bail of the accused appellants was considered by this Court on 7.5.2003, while granting the bail to appellant No. 2 Smt. Dhanwanti, the Court ordered that a prayer for bail of the accused appellant Ramphal shall be considered after the receipt of the record. THEreafter record was received from the lower court and the case was again heard at length on 30.6.2003 by this Court and following order was passed : "Heard Sri Harish Chandra Mishra, counsel for the appellants at length, learned A.G.A., and perused the record. It is submitted by Sri Mishra that the dying declaration has not been proved by the Doctor. He further contends that there is variation in the evidence of P.Ws. 1 and 2 and that there is no any other independent witness except the mother of the deceased to the dying declaration, which is said to be not proved. THE contention of the counsel for the appellants that there is variation in the evidence of P.Ws. 1 and 2 is rebutted by the A.G.A. It is submitted by him that from the record it cannot be said that there was no other independent witness to the dying declaration. THE mother of the deceased Shashi has categorically stated that when she got the door of the house opened Ram Phal ran away and her daughter Shashi was lying badly burnt but alive, and further that she took, the daughter to the hospital where Shashi gave the dying declaration to the Doctor in her presence to the effect that Ram Phal, Smt. Jasoda and Smt. Dhanwanti had caught her and thereafter Ram Phal had poured kerosene oil on her and put her to fire. It is further submitted by A.G.A. that it is not a case of no evidence and will not crumble merely because dying declaration was not proved by the Doctor. Apart from written dying declaration there is evidence of the mother that Shashi had given the dying declaration in her presence. At this stage, counsel for the appellants wants further time to prepare the case. As requested by him list on 8th July, 2003." The matter was thereafter again heard on 29.7.2003. The contention of the counsel for the appellant is that an F.I.R. was lodged under Sections 304B and 498A, I.P.C. against Ramphal, Smt. Dhanwanti and Smt. Yashoda on the ground that the accused were demanding dowry and were subjecting Shashi (deceased) to cruelty, who was married to Mahesh S/o Nathu Ram and Jashoda. It is alleged that Shashi was put to death by pouring kerosene oil and thereafter burning her by the accused. He submits that the dying declaration ought to have been discarded by the court below on the following grounds : (a) There are various discrepancies in the statement of prosecution witnesses, which create doubt regarding involvement of accused person. (b) Tehsildar and the Doctor were not produced to state the mental status of the deceased making dying declaration and without discussing mental status dying declaration should not be believed. Contradiction is pointed out that Ashok Kumar brother of the deceased has stated in paragraph 2 above that he immediately ran and brought a two seater and took the deceased to the medical college whereas in para 10 he has stated that he had gone to the police station after informing his mother and when he came back with the policemen his mother had taken his sister to medical college for treatment. He urges that the discrepancy whether he first brought the two seater or the policemen is fatal to the case of the prosecution.
(3.) SMT. Khumano, mother of the deceased, has stated in her evidence that : ...[VERNACULAR TEXT OMMITED]... This is contradictory to her examination-in-chief wherein she has stated that the doors were got opened when she reached the house of her daughter. There appears to be another contradiction in the statement of P.W. 1 (Brother) and P.W. 2. P.W. 1 in his statement stated that when he went on the spot there was 15 to 20 neighbours standing and some other persons were also there. Whereas P.W. 2 the mother when she reached the spot there was on one, neither there were any neighbour nor any other persons, and that Manoj had not opened the doors after crossing over the wall. These doors were opened from before.;