LAWS(ALL)-2021-12-121

PREETI Vs. STATE OF U.P.

Decided On December 01, 2021
PREETI Appellant
V/S
STATE OF U.P. Respondents

JUDGEMENT

(1.) By way of this appeal, the appellant has challenged the Judgment and order 20/2/2019 passed by Additional Sessions Judge, Court No.1, Etah in S.T. No. 228 of 2016, State Vs. Veerpal @ Anuj and another arising out of Case Crime No. 0014 of 2016, under Ss. 302/34 of IPC, Police Station Marhara, District Etah whereby the accused-appellant was convicted under Sec. 302 IPC and sentenced to life imprisonment with fine of Rs.25,000.00, and in case of default of payment of fine, to undergo further imprisonment for one year. 3. The brief facts as per prosecution case are that complainant's daughter Manisha was married to Mahipal and he had given dowry and gifts according to his capacity, a 4 year daughter was born out of their wedlock. Manisha in-laws were not happy with the dowry and gifts and there was a demand of motor-cycle by them but due to nonfulfilment of demand they use to torture and harass Manisha. On 7/1/2016 at about 2:00 O' clock, they poured kerosene oil on Manisha and put her ablaze, On telephonic information by the villagers complainant and his family reached to Manisha's matrimonial home and brought her to Varun Trauma Centre, Aligarh for treatement where she succumbed to death on 13/1/2016. 4. The investigation Officer tookup the investigation visited the spot, prepared site plan, recorded statements of the deceased and witnesses and after completing investigation submitted charge sheet against the accused. 5. The prosecution so as to bring home the charges examined six witnesses, who are as under:- <FRM>JUDGEMENT_121_LAWS(ALL)12_2021_1.html</FRM> 6. In support of the ocular version of the witnesses, following documents were produced and contents were proved by leading evidence: <FRM>JUDGEMENT_121_LAWS(ALL)12_2021_2.html</FRM> 7. Heard Noor Mohammad, learned counsel for the appellant and learned AGA for the State and also perused the record. 8. It is submitted by the counsel for the appellant that P.W.-1, P.W.-2 and P.W.-3 have deposed that there was no demand of dowry. 9.The deposition is supported by the evidence of P.W.-5 who is the husband of the deceased. The present appellants were not staying with the deceased. The appellants are in jail since 14/6/2016 and has submitted that Dr. Anil Kumar Singh who conducted the postmortem of the deceased deposed that the deceased died due to 95% of burn but there was no kerosene or petrol oil present on the body of the deceased. It was further submitted that Dr. Virendra Singh Sisodia and Dr. Jinendra Kumar Jain, Additional City Magistrate, Aligarh who recorded the dying declaration of the deceased have conveyed no specific depositions regarding the smell of petrol or kerosene oil from the body of the deceased was recorded. 10. While going through the factual scenario we are of the opinion that even if we go by the factual data that the dying declaration was not a tutored one and could have been voluntarily made and that it satisfies the quantoes of dying declaration, we would concur with the learned trial court rather the Sessions Judge. The learned Judge has relied on several judgements . The learned Judge has categorically mentioned that when the dying declaration would be acted upon and when the same cannot be he has traced the judicial history beginning from 1962 and has traced it right upto 1992 and has summed up the same. The dying declaration can be acted upon without collaboration if it inspires truth. Thus having summarize the law we are of the considered opinion that no other view than that taken by the learned Judge can be taken for upholding the conviction of the accused on the basis of dying declaration. We are fortified in view of the decision of the Apex Court in "Krishan Vs. State of Haryana, reported in (2013) 3SCC 280" wherein the same decision was considered by one of us in Criminal Appeal No. 245 of 2004 of the Gujrat High Court decided on 13/9/2013. 11. We can safely rely upon the decision of the Gujarat High court in Criminal Appeal No.83 of 2008 (Gautam Manubhai Makwana Vs. State of Gujarat) decided on 11/9/2013 wherein the Court held as under: