Mrs. Poonam Srivastav, J. - (1.) THE instant two appeals arise out of a common judgment. THE appellant Amit Kumar Pandey in Criminal Appeal No. 5112 of 2007 is husband of the deceased Smt. Rama Pandey, who is convicted under Section 304B, I.P.C. and sentenced to undergo life imprisonment. He is also convicted under Section 498A, I.P.C. and sentenced to 3 years R. I. and a fine of Rs. 1,000 and 2 years R.I. and fine of Rs. 5,000 under Section 4 of Dowry Prohibition Act. Smt. Urmila Devi, mother-in-law of the deceased and Km. Anita Pandey, sister-in-law are the appellants in Criminal Appeal No. 4537 of 2007. THEy have been awarded 3 years R.I. and a fine of Rs. 1,000 under Section 498A, I.P.C. and 2 years R.I. and fine of Rs. 5,000 under Section 4 of Dowry Prohibition Act. Both the appellants were directed to deposit fine within one month and in default of payment of fine, a further imprisonment of one year. All the sentences in both the appeals are directed to run concurrently. Father-in-law of the deceased was also sent up for trial in Session Trial No. 314 of 2001 alongwith the other accused but he was acquitted.
(2.) THE prosecution story in brief is that the deceased Smt. Rama was married to appellant Amit Kumar Pandey, son of Onkar Pandey, resident of Nagawa Subahi (Dewari), Police Station Khesraha, district Siddharth Nagar on 7.5.1998, Gauna ceremony was performed in the month of April, 1999, thereafter she started living with her in-laws. THE family members of the deceased as well as Onkar Pandey used to live in Mumbai as well. THE first informant Chhotey Lal Pathak P.W. 1 had given dowry to the best of his ability but was unable to give a colour T.V. and Fridge, as a consequence the appellant Amit Kumar Pandey (husband) used to harass and beat her. THE complainant's daughter (deceased) had told her father about the demand of dowry. Her father tried to explain his helplessness and inability to fulfil the demand to the appellant and Onkar Pandey. THE non-fulfilment of demand is an outcome of the present incident that took place on 8.11.1999 in the morning at 8.00 a.m. According to the prosecution Smt. Rama was set ablaze by mother-in-law, father-in-law, husband and sister-in-law Anita Pandey at pouring kerosene. THE complainant got the information on telephone while he was in Mumbai. He reached Gorakhpur Medical College on 10.11.1999 where the deceased was admitted after administering first aid at Siddharth Nagar District Hospital. THE complainant claims that the entire prosecution version was narrated by his daughter, consequently a first information report Ext. Ka-7 was got registered on 11.11.1999 at 8.30 a.m. at Police Station Khesraha, district Siddharth Nagar under Sections 498A and 326, I.P.C. read with Section 3/4 of Dowry Prohibition Act. THE investigation was handed over to Rudra Kumar Singh, Smt. Rama died on 16.11.1999 in B.R.D. Medical College, Gorakhpur as a result of 60% burn injuries and the case was converted under Section 304B, I.P.C. The prosecution examined Chhotey Lal Pathak (father of the deceased and complainant) as P.W. 1, Smt. Gangawati mother as P.W. 2, Dr. R. K. Chaturvedi P.W. 3, who was second Medical Officer to have examined the injuries of Smt. Rama on 15.11.1999 at Gorakhpur, Dhansukhdhari P.W. 4 and H. P. Pathak P.W. 5 as witnesses of demand of dowry, Dr. S. B. Singh P.W. 6 who performed post mortem on the body of the deceased, Dr. G. N. Shukla who had examined the deceased in the District Hospital Siddharth Nagar and referred her to Gorakhpur Medical College. Constable Ram Narayan P.W. 8 who had registered the first information report and Sri R. K. Singh P.W. 9 was the Investigating Officer, Sri Indrajeet Singh C.W. 1 proved the charge-sheet, N. K. Tiwari Magistrate as C.W. 2 who had recorded the first dying declaration on 9.11.1999 and Jagdamba Singh S.L.O. as C.W. 3 who had recorded her second dying declaration on 14.11.1999. The defence also produced four defence witnesses ; Harish Chandra Pandey D.W. 1, chachiya sasur of the deceased, J. L. Pandey D.W. 2, Dr. A. K. Gupta D.W. 3, who examined the burn injuries of Harish Chandra Pandey and B. L. Agarwal A.D.M. Sri P. N. Mishra senior advocate assisted by Sri B. G. Bhai Tripathi advocate has advanced his arguments and challenged conviction under Section 304B, I.P.C. on the ground that this was an accidental death on account of blast of stove while deceased was preparing tea and cannot be termed as "an unnatural death". It is also submitted that there was no harassment or demand of dowry ; neither the deceased was subjected to cruelty soon before the occurrence and, therefore, it cannot be said that burn injuries which resulted in her death was unnatural and at the hands of the in-laws. It is further submitted that the admitted case of the prosecution is that all the family members had returned from Mumbai on the date of occurrence itself when the deceased had gone to prepare tea and stove bursted which is an accident. This fact was confirmed by the deceased in her dying declaration recorded on 9.11.1999 at 9.45 a.m. by the Magistrate. The said dying declaration is Exb. Kha-1. The next submission is that dying declaration recorded by the Magistrate on 9.11.1999 finds support from the first medical report which is Exb. Ka-6. On perusal of the said medical report, it is apparent that she was brought by her husband to the hospital and doctor has clearly mentioned that it is case of "accidental burn injuries due to blast of stove as stated by attendant of the patient after admission". The second dying declaration was recorded on 14.11.1999 which is Exb. Ka-15. The deceased has rescinded her previous statement recorded by the Magistrate on 9.11.1999 (wrongly mentioned as 9.9.1999) and she has levelled specific allegations against her husband mother-in-law, father-in-law and sister-in-law. Perusal of the second dying declaration depicts that the burn injuries received by the deceased were not accident but was deliberate one by pouring kerosene and setting her ablaze by her in-laws on account of non-fulfilment of dowry.
(3.) LEARNED counsel has restricted his argument only on the validity and correctness of the two dying declarations and has emphasized that in absence of any other evidence, a conviction under Section 304B, I.P.C. cannot be upheld. Several decisions of the Apex Court has also been cited vis-a-vis to the facts of the present case which mainly revolves around the acceptance or non-acceptance of the two dying declarations which are contradictory to one another. The dying declaration given out by the deceased is an eye-witness account and therefore, the question of presumption does not arise. Certain extract of deposition made by the family members of the deceased has been relied upon in support of the argument that the prosecution has unequivocally admitted that after the deceased was referred by the District Hospital Siddharth Nagar to Gorakhpur Medical College, it was the family members of the deceased who had brought her to Gorakhpur and got her admitted in the hospital where two dying declarations were recorded. The authenticity of the first dying declaration recorded on 9.11.1999 cannot be doubted since the deceased herself admitted in the second dying declaration that she has also given her statement previously before the Magistrate, therefore, we are left with no other option but to accept the fact that there were two dying declarations given by the deceased, may be the versions in the two statements, are contradictory to each other. Both the statements have been recorded by the competent person. We have examined both the statements of the deceased. Perusal of the first dying declaration Exb. Kha-1 is certified by the doctor whereas in the second statement the doctor has stated that she is able to speak. The Magistrate Sri Mithilesh Kumar Tiwari who had recorded the first dying declaration, was examined as C.W. 2 and proved the statement. He has also stated that the doctor had examined the deceased and allowed him to record her statement. He was also present all through while he had recorded the statement. He has also admitted in cross-examination that he had gone to the hospital after he received information from the hospital through the police and he had gone to the Medical College on a police vehicle. He has also stated that he did not consider it necessary to take a written certificate for recording his statement from the doctor since doctor was present all through when the statement was being recorded. In the circumstances, we are faced with two dying declarations admittedly recorded by a competent authority. The first one which was recorded before the first information report came in existence wherein the deceased had completely exonerated her in-laws but the second dying declaration which is three days after the first information report was registered, gives entirely different version. Perusal of the second dying declaration confirms that there was a dying declaration recorded by the Magistrate previously though she has tried to explain that she has given different story in her previous statement on account of certain threat extended by her husband and other in-laws while they were taking her to the hospital. No other argument has been advanced before us but for challenging the veracity of the second dying declaration which is the basis of the conviction of the appellant (husband). The learned counsel emphasized that it is under heavy clout.;