# Prem Sheela @ Guddi (In Jail) v. State of U.P - **Citation:** (2020) 1 ILRA 56 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2020-01-03 - **Case number:** Criminal Appeal No. 558 of 2019 - **Bench:** Virendra Kumar Srivastava - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prem-sheela-guddi-in-jail-v-state-of-u-p-45692 - **Pages:** 21 ## Headnote Criminal Law - Indian Penal Code - Sections 498-A, 304-B - Dowry Prohibition Act, 1961 - Section 3/4 - Appeal against conviction. 1 All. Prem Sheela @ Guddi & Ors. Vs. State of U.P. 57 It is settled principle of law that an accused may be convicted only on the basis of dying declaration if it is true and is reliable because the admissibility of dying declaration is based on the Latin Maxim "Nemo Moriturus Praesumitur mentire" which means that a person will not meet his maker with a lie in his mouth. It is duty of the Court to ensure the fact that whether such dying declaration was made by the deceased or not, and if it is made by him/her, whether the deceased was in free and sound state of mind and was not tutored, influenced or pressurized by any person. If it is proved that the maker of the statement was tutored, influenced, pressurized or was not in a position to make such dying declaration or any reasonable suspicion appears in the manner of recording thereof, such dying declaration cannot be made as sole basis for the conviction of accused. (para 37) Thus from the perusal of aforesaid statement of witnesses as well as dying declaration it transpires that before the death of deceased there was no torture and harassment to the deceased due to demand of dowry by the appellants. (para 32) In addition to above, appellants are neither husband nor family members of deceased. They are sister-in-law (nanad), brother-in-law (nandoi) and niece of deceased. They do not reside with deceased. As per prosecution case neither any dowry was demanded nor was given at the time of marriage. Generally it is seen that if husband and his family members are not asking for dowry, their relatives who are not family members of in-laws of deceased, do not demand dowry and if prosecution alleges that they are demanding dowry, it has to be proved by prosecution by reliable evidence. But prosecution, in this case, has failed to prove such fact. (para 31) Deceased was well educated and was graduate, as stated by Hari Kishan (PW-2) but her signature was not obtained on Ex.Ka-11. Prosecution has not offered any explanation as to why the deceased, who was well educated, did not prefer to put her signature but put her thumb impression only on the last page of dying declaration. (para 53) Thus, in view of above short coming, serious irregularities, it is clear that the said dying declaration is tutored and doubtful which cannot be treated as reliable. (para 54) Prosecution has miserably failed to prove its case beyond reasonable doubt. (para 56) Appeal is allowed. (E-2) List of cases cited: - ## Text _Characters 0–39,945 of 68,176. This is a partial read: ask again with offset=39945 for what follows._ 56 INDIAN LAW REPORTS ALLAHABAD SERIES common intention in killing the deceased Beni Ram. 59. The accused in their statement under Section 313 Cr.P.C. have stated that witnesses have deposed against them due to enmity but what was the enmity, it has not been explained by them. Since, Sunder Lal (died during trial) was claiming land in the lease land of the deceased, so with regard to him it may be said that witnesses of fact had enmity but so far as appellants are concerned, there is no material on record to draw such an inference. Without any explanation or evidence it cannot be accepted that there was enmity between the deceased and accused persons and witnesses of fact deposed against them due to enmity. Therefore, on the basis of their statement under Section 313 Cr.P.C., it cannot be accepted that accused persons have been falsely implicated and witnesses deposed against them due to enmity and appellant Ram Chander to undergo two years rigorous imprisonment under Section 148 I.P.C. 60. Thus, upon a wholesome consideration of the facts of the case, attending circumstances and the evidence on record, we do not find that the learned trial Judge committed any illegality or legal infirmity in convicting and sentencing appellants Ram Chander, Ram Shankar, Ram Bharosey and Ram Bahadur each to undergo life imprisonment and fine of Rs.2,000/- under Section 302 read with Section 149 I.P.C., in default of fine six 6 months additional imprisonment, appellants Ram Shankar, Ram Bharosey and Ram Bahadur to undergo one year rigorous imprisonment under Section 147 I.P.C. and appellant Ram Chander to undergo two years rigorous imprisonment under Section 148 I.P.C. 61. This appeal lacks merit and is accordingly, dismissed. 62. Appellants Ram Chander, Ram Shankar, Ram Bharosey and Ram Bahadur are on bail. Chief Judicial Magistrate, Pilibhit is directed to take them into custody and send them to jail for serving out the remaining sentences. 63. Office is directed to send a copy of this order to the court concerned within a week for compliance. The C.J.M. concerned shall send his report with regard to the accused-respondents within one month thereafter. 64. The lower court record shall be returned to the court concerned. ---------- (2020)1ILR A56 APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 03.01.2020 BEFORE THE HON'BLE VIRENDRA KUMAR SRIVASTAVA, J. Criminal Appeal No. 558 of 2019 with Criminal Appeal No. 564 of 2019 Prem Sheela @ Guddi ...Appellant(In Jail) Versus State of U.P. ...Opposite Party Counsel for the Appellant: Anjali Singh, Sri K.K. Singh Counsel for the Opposite Party: A.G.A. Criminal Law - Indian Penal Code - Sections 498-A, 304-B - Dowry Prohibition Act, 1961 - Section 3/4 - Appeal against conviction. 1 All. Prem Sheela @ Guddi & Ors. Vs. State of U.P. 57 It is settled principle of law that an accused may be convicted only on the basis of dying declaration if it is true and is reliable because the admissibility of dying declaration is based on the Latin Maxim "Nemo Moriturus Praesumitur mentire" which means that a person will not meet his maker with a lie in his mouth. It is duty of the Court to ensure the fact that whether such dying declaration was made by the deceased or not, and if it is made by him/her, whether the deceased was in free and sound state of mind and was not tutored, influenced or pressurized by any person. If it is proved that the maker of the statement was tutored, influenced, pressurized or was not in a position to make such dying declaration or any reasonable suspicion appears in the manner of recording thereof, such dying declaration cannot be made as sole basis for the conviction of accused. (para 37) Thus from the perusal of aforesaid statement of witnesses as well as dying declaration it transpires that before the death of deceased there was no torture and harassment to the deceased due to demand of dowry by the appellants. (para 32) In addition to above, appellants are neither husband nor family members of deceased. They are sister-in-law (nanad), brother-in-law (nandoi) and niece of deceased. They do not reside with deceased. As per prosecution case neither any dowry was demanded nor was given at the time of marriage. Generally it is seen that if husband and his family members are not asking for dowry, their relatives who are not family members of in-laws of deceased, do not demand dowry and if prosecution alleges that they are demanding dowry, it has to be proved by prosecution by reliable evidence. But prosecution, in this case, has failed to prove such fact. (para 31) Deceased was well educated and was graduate, as stated by Hari Kishan (PW-2) but her signature was not obtained on Ex.Ka-11. Prosecution has not offered any explanation as to why the deceased, who was well educated, did not prefer to put her signature but put her thumb impression only on the last page of dying declaration. (para 53) Thus, in view of above short coming, serious irregularities, it is clear that the said dying declaration is tutored and doubtful which cannot be treated as reliable. (para 54) Prosecution has miserably failed to prove its case beyond reasonable doubt. (para 56) Appeal is allowed. (E-2) List of cases cited: - 1. Atbir Vs. Government (N.C.T. Of Delhi) (2010) 9 SCC 1 2. St.of Raj. Vs. Wakteng, AIR 2007 SC 2020 3. Lakhan Vs. St. of M.P. JT 2010 (8) SC 363 4. Subhash Vs. St. of Haryana, AIR 2011 SC 349 5. Murugesan Vs. State, (2012) 25 SCC 383 6. Bakhshish Singh Vs. St. of Punj., AIR 1957 SC 904 (Delivered by Hon'ble Virendra Kumar Srivastava, J.) 1. Both criminal appeals have been filed against the judgment and order dated 29.11.2018, passed by Additional Session Judge/F.T.C. (Offences against Women), Jaunpur, in S.T. No. 389 of 2013 (State of U.P. Vs. Kusum Devi and others), arising out of Case Crime No. 371 of 2013, under Sections 498-A, 304-B IPC and 3/4 Dowry Prohibition Act (in short 'D.P. Act'), P.S. Chandvak, District Jaunpur whereby appellants, namely, Prem Sheela @ Guddi, Kusum Devi and Brijbhan Gaur have been convicted and sentenced for offence u/s 498A IPC for 2 years imprisonment and fine of Rs. 5000/-, for offence u/s 304-B IPC for 7 years rigorous imprisonment and u/s 3/4 D.P. Act for one year imprisonment and with fine of Rs. 1000/-. All the sentences have been directed to run concurrently. Since both the appeals have been filed against the same 58 INDIAN LAW REPORTS ALLAHABAD SERIES judgement, hence both are being heard and decided jointly by common judgement. 2. Brief facts, arising out of this appeal, are that deceased Pratiksha Gaur was married to Hari Kishan (PW-2), s/o Banarasi, R/o Village Kanaura, P.S. Chandvak, District Jaunpur, in December 2007 in mass wedding ceremony. Appellant Brijbhan Gaur is brother-in-law of Hari Kishan (PW-2), appellant Kusum Devi is his sister (wife of appellant Brijbhan), appellant Prem Sheela @ Guddi is his niece (daughter of Kusum Devi) and one Subhash (since acquitted) is real brother of Hari Kishan (PW-2). Asha Devi (PW-1), mother of deceased Pratiksha, lodged a written information (F.I.R.) (Ex.ka1) on 9.6.2013 at about 9:50 p.m. at P.S. Chandvak, District Jaunpur that aforesaid appellants and Subhash (since acquitted) used to torture the deceased Pratiksha for want of dowry. On 8.6.2013 at about 7:30 p.m., appellants and Subhash (since acquitted) poured kerosene oil on deceased Pratiksha and set her ablaze, whereby serious burn injuries were caused to deceased; information of the said incident was given to Asha Devi (PW-1) by Hari Kishan (PW-2), upon such information she (PW-1) rushed to place of occurrence and learnt that her daughter was in hospital. Thereafter, she rushed to the hospital and found that the deceased was struggling for her life in District Hospital, Jaunpur. The information, given by Asha Devi (PW-1) was entered by police in General Diary (Ex.Ka 9) and on the basis whereof, Case Crime No. 371 of 2013 was registered by Const. Vinod Saroj (PW-8), under Sections 498-A, 307 IPC and 3/4 D.P. Act, against the appellants as well as against Subhash (since acquitted). Investigation was entrusted to S.I. Mata Prasad (in short 'Ist I.O.') who rushed to the place of occurrence and after its inspection, prepared site plan (Ex.Ka 10), seized kerosene oil with plastic jerrycan, match box and prepared seizure memo (Ex.Ka 3). 3. Ram Kailash Saroj (PW-7), Naib Tehsildar (Local Executive Magistrate), upon oral direction of Sub-Divisional Magistrate, Sadar Jaunpur, reached the District Hospital, Jaunpur where deceased was admitted and her treatment was going on. He recorded the statement (Ex.Ka 11) i.e. dying declaration of deceased on 9.6.2013 in the intervening night of 9.6.2013 at about 12:10 a.m. (night) which reads as under: e`R;q dkfyd c;ku fnuakd 0906-13 izekf.kr fd;k tkrk gS izrh{kk mez yxHkx 24 yrs w/o gjhfd'ku xkSM+ dukSjk MksHkh c;ku nsus dh fLFkfr esa gS ,oa gks'kks gokl es gSA 12-10 A.M. g0 viBuh; (Dr.Prabhat) vkdfLed fpfdRlkf/kdkjh v0'k0m0 ukFk flag ftyk fpfdRlky; tkSuiqj izkjEHk 0&10 A.M. eS izrh{kk vk;q yxHkx 24 o"kZ iRuh gjhfd'ku xkSM+ fuoklh xzke dukSjk MksHkh Fkkuk pUnod bZ'oj dh 'kiFk ysrh gwW tks dgwWxh lp dgwWxhA lp ds flok; dqN u dgwWxhA iz01 & vki dSls ty xbZ \ m0 & esjh 'kknh lu~ 2007 esa 12 fnlEcj dks gjh fd'ku mQZ larks"k ds lkFk jkt dkyst eas vk;ksftr lkewfgd fookg lekjksg esa gqbZ FkhA eS i<+uk pkgrh Fkh esjh uun Jherh dqlqe o uunksbZ c`tHkku tks esjs llqjky esa gh jgrs gS eq>s Iis esjh uun dqlqe o mldh csVh xqM~Mh us ,d o"kZ iwoZ ngst ds fy, dkQh izrkfM+r djus yxs vkSj eq>s dkQh ekjk&ihVkA os yksx cjkcj eq>s ?kj ls Hkxkus dh ckr djrs gSA esjs xkao ds xIiw flag iq= u ekywe ftuds HkkbZ iqfyl foHkkx esa cukjl esa ukSdjh djrs gS os vkt lqcg nks flikfg;ksa ds lkFk esjs ?kj ij vk;s vkSj eq>s xanh&xanh xkfy;kW fnyok;s vkSj cksys fd ;g cM+h >xM+Sy gS bls ekjks bruk dg dj os yksx pys x;s mlds ckn esjh uun o mldh csVh us fey dj cgqr ekjk&ihVk rFkk fnu Hkj >xM+k pyrk jgkA 'kke dks yxHkx lkr cts esjh uun&dqlqe vk;q 38 o"kZ iRuh c`tHkku o mudh csVh xqM~Mh vk;q yxHkx 21&22 o"kZ iq=h c`tHkku o c`tHkku iq= Â1⁄4'kk;nÂ1⁄2 feJh o ftrsUnz mQZ ekuh o xksyw us fey dj dj esjs Ã...ij feà h dk rsy Mkydj 4 ekfpl ls tyk fn;sA Â1⁄4fQj dgk fdÂ1⁄2 xksyw tykus esa ugh FkkA xqM~Mh us feà h ds rsy ds IykfLVd ds xSyu ls esjs Ã...ij feà h dk rsy Mkyk ml le; c`tHkku us eq>s idM+ j[kk Fkk va/ksjs esa eq>s fdlus tyk fn;k eS mls ugha ns[k ik;hA dqlqe Hkh eq>ls yM+ jgh FkhA eq>s tyrk gqvk ns[kdj lHkh yksx NksM+ dj x;sA iz02 & vkx dSls cq>h \ m0 & tc eq>s tyk dj Hkkx x;s rHkh esjk ifr Hkës ij dke djds lkbfdy ls ?kj vk x;k vkSj eq>s fdlh pht ls iz03 & vki dk ek;dk dgak gS \ m0 & esjk ek;dk jkt dyksuh gqlSukckn tkSuiqj esa gSA iz04 & vki dks vLirky dkSu yk;k \ m0 & esjk ekrk th vk'kk nsoh iRuh lgktw o esjs ifr eq>s ,Ecwysal 108 ls vLirky yk;s gSA iz05 & D;k vki ds ifr Hkh ngst ds fy, izrkfM+r djrs Fks \ m0& esjs ifr cgqr vPNs vkneh gSA mUgksus dHkh eq>s ngst ds fy, izrkfM+r ugh fd;kA c;ku i<+dj o lqudj rLnhd fd;kA lekIr 0&40 AM fu0va0 nk;k Jherh izrh{kk izekf.kr g0 viBuh; 09@06@13 1⁄4jke dSyk'k ljkst1⁄2 uk;c rglhynkj lnj] tkSuiqj izekf.kr fd;k tkrk gS fd c;ku nsrs le; ;g vius iwjs gks'kks gokl esa jghA 12-40 AM g0 viBuh; 09-06-13 vkdfLed fpfdRlkf/kdkjh v0'k0m0 ukFk flag ftyk fpfdRlky; tkSuiqj " "Dying Declaration dated 09.06.13 Certified that Pratiksha aged about 24 years w/o Hari Kishan Gaur r/o Kanaura is fit to give statement and is in full conscious. 12.10 A.M. Signature illegible (Dr. Prabhat) Emergency Medical Officer A.S.U. Nath Singh District Hospital 60 INDIAN LAW REPORTS ALLAHABAD SERIES Jaunpur Started 0-10 A.M. I, Pratikcha aged around 24 years w/o Hari Kishan Gaur R/o villKannaura Dobhi, PS-Chandwak swear in the name of god that I will state nothing but truth. Q: How have you got burnt? Ans: I got married on 12 December 2007 with Hari Kishan @ Santosh in the mass wedding ceremony held in Raj College. I wanted to study. My sister-in-law Kusum and my brother-inlaw Brij Bhan who live in my in-law's house, in order to not let me study, under different excuses and pretensions, got me separated from my family. Then around one year ago, my sister-in-law Kusum and her daughter Guddi, started torturing me for the purpose of dowry and beaten me badly. Every now and then, they used to talk about driving me out of the house. Gappu Singh S/o unknown of our village whose brother works in police department in Banaras, came today in the morning to our house along with two sepoys and started abusing me and said "She is quarrelsome; just beat her." Saying this, he went away. Thereafter, my sister-in-law and her daughter beaten me badly and the quarrel ensued the entire day. In the evening around 7.00 p.m., my sister-in-law Kusum aged 38 years w/o Brij Bhan and her daughter Guddi aged 21-22 years D/o Brij Bhan and Brij Bhan S/o (Shayad?) Mishri and Jitendra @ Mami and Golu poured kerosene oil upon me, lit a matchstick and set me on fire. (Then stated that) Golu was not involved in setting fire. Guddi poured kerosene oil upon me with a plastic gallon. Brij Bhan was getting hold of me that time. I could not see it in dark as to who set me on fire. Kusum was also fighting with me. Seeing me set on fire, everybody ran away. Q-2: How was the fire put off? Ans: When they had set me on fire and ran away, my husband, after having completed his job in a kiln, came back by a cycle, and covered me with something and put off the fire. Q-3: Where is your parent's house? Ans: My parent's house is in Raj Colony, Husainabad, Jaunpur. Q-4: Who brought you to hospital? Ans: My mother Asha Devi W/o Sahju and my husband brought me to the hospital in the ambulance of 108. Q-5: Did your husband also torture you for dowry? Ans: My husband is a very nice man. He never tortured me for dowry. Heard and verified. Concluded at 0-40 A.M. R.T.I. of Smt. Pratiksha attested sd/- illegible 09.06.13 (Ram Kailash Saroj) Naib Tehsildar Sadar, Jaunpur Certified that she was in full conscious during statement. 12.40 A.M. Sd/- Illegible Emergency Medical Officer A.S.U. Nath Singh District Hospital Jaunpur" 1 All. Prem Sheela @ Guddi & Ors. Vs. State of U.P. 61 (English translation by Court) 4. Deceased Pratiksha could not be saved and during treatment succumbed to severe burn injuries on 16.6.2013. After death of deceased the case was converted under Sections 498-A, 304-B I.P.C. and 3/4 D.P. Act and investigation was entrusted to Mayaram (PW-5), Deputy Superintendent of Police (Dy. S.P.) Kerakat, Jaunpur (in short 'II I.O.'). Naib Tehsildar (Local Executive Magistrate), Ramesh Chandra Yadav (PW-6), upon information, proceeded to the place where dead body of the deceased was lying and got the inquest report and relevant police papers prepared by S.I. Vijay Bahadur, sealed the dead body and sent the same for post mortem examination to district hospital, Jaunpur. After investigation, charge sheet (Ex.Ka 5) was submitted against the appellants and Subhash Gaur (since acquitted) before the Chief Judicial Magistrate, Jaunpur, who took the cognizance of offence and since the offence was exclusively triable by the Session Court, he committed it for trial to Session Court in compliance of Section 209 of Code of Criminal Procedure, 1973 (hereinafter referred to as 'Code'), after providing the copies of relevant police papers to appellants and other co-accused. 5. Charges were framed by the Trial Court under Sections 498-A, 304-B I.P.C. alternatively u/s 302 I.P.C. and u/s 3⁄4 D.P. Act, against the appellants as well as Subhash Gaur (since acquitted) who denied the prosecution case and claimed for trial. 6. In order to prove the prosecution case the prosecution examined Asha Devi (PW-1), Hari Kishan (PW-2), Dr. Ramesh Kr. Singh (PW-3), Anoop Kumar Gaur (PW-4), Mayaram (PW-5), Ramesh Chand Yadav (PW-6), Ram Kailash (PW-7), Vinod Saroj (PW-8), wherein PW-1, PW2, PW-4 and PW-7 are witnesses of fact whereas rest witnesses are formal witnesses. 7. After the prosecution evidence, the statements of appellants and Subhash Gaur (since acquitted) were recorded under Section 313 of Code. They denied the prosecution story and stated that they have been falsely implicated. Appellant Kusum Devi further stated that she used to support her father and was residing at village Kanaura due to which deceased and her husband were annoyed with her. She had not set deceased ablaze. She has been falsely implicated, on the instigation of Hari Kishan (PW-2), by the informant Asha Devi (PW-1). Same statement/explanation was also given by appellants Brijbhan Gaur and Premsheela @ Guddi. They have further stated that they did not reside with deceased. Subhash Gaur (since acquitted) also stated that he was falsely implicated, he had not committed any offence and used to reside separately from the deceased. 8. Appellants were given opportunity by Trial Court to lead evidence in their defence but they did not produce any evidence. Upon considering the prosecution evidence, the Trial Court vide aforesaid impugned judgement and order, convicted and sentenced the appellants as above and acquitted the accused Subhash. Aggrieved by the said judgment and order these appeals have been preferred. 9. Heard Sri Kusumayudh Krishna Singh, Advocate holding brief of Sri Anjali Singh, learned counsel for appellant, Sri Asheesh Mani Tripathi, learned AGA and perused the record. 62 INDIAN LAW REPORTS ALLAHABAD SERIES 10. Learned counsel for the appellants has submitted that appellants are innocent and have been falsely implicated. Informant is not an eye witness; she had not disclosed that how she got the information of occurrence and her statement is not reliable because she has not supported the prosecution case in cross-examination. Learned counsel further submitted that the statement of Hari Kishan (PW-2) is also not reliable because he has also not supported the prosecution story in his cross-examination and his statement is contradictory also. It is submitted that the dying declaration of deceased is not reliable because it was tutored and tampered; circumstances under which Ram Kailash Saroj (PW-7) got the information/direction for recording the dying declaration are highly suspicious and doubtful; Asha Devi (PW-1), Hari Kishan (PW-2) and Anoop Kumar (PW-4), who were continuously present in hospital with deceased, have not stated anything about recording of dying declaration and Dr. Prabhat who had given fitness certificate regarding mental status of deceased as well as her capability to give statement, was not examined. Learned counsel further submitted that F.I.R. has been lodged by delay of more than 24 hours and no explanation has been given for such inordinate delay. Learned counsel further submitted that appellants are neither husband nor family members of deceased, they are nanad-nandoi and daughter of nanad of deceased hence there is no opportunity and justification to demand of dowry as well as to cause any harassment and cruelty to the deceased. Learned Trial Court has not appreciated the evidence available on record properly and has convicted the appellants in violation of settled principle of criminal law. 11. Per contra, learned A.G.A. has submitted that death of the deceased has been caused due to burn injury, within 7 years of her marriage, the place of occurrence is near the house where appellants used to reside and there is sufficient evidence available on record that prior to death of deceased she was subjected to cruelty, due to demand of dowry. Learned A.G.A. further submitted that prosecution case is well supported by the prosecution witnesses including Hari Kishan (PW-2) who is nearest relative of appellants and also husband of deceased. Learned AGA further submitted that dying declaration of deceased, recorded by Ram Kailash Saroj (PW-7) is wholly reliable. Learned A.G.A. further submitted that merely non-examination of doctor who had certified physical and mental capability of deceased to give statement, is not material in this case. Ocular evidence is wholly supported by the medical evidence. Prosecution has succeeded to prove its case beyond reasonable doubt. The impugned judgment and order requires no interference and appeals are liable to be dismissed. 12. I have considered the rival submission of learned counsels for both the parties and perused the record. 13. Asha Devi (PW-1), mother of deceased, has stated that her daughter Pratiksha was married in 2007 with Hari Kishan (PW-2). Whenever her daughter used to come to her maternal house, she used to state that appellants Kusum Devi (nanad), Premsheela (daughter of Kusum Devi), Brijbhan (nandoi) and Subhash Gaur (Jeth) (since acquitted) used to demand motorcycle in dowry and on account of that demand they used to harass and beat her. She has further stated that 1 All. Prem Sheela @ Guddi & Ors. Vs. State of U.P. 63 she tried to pacify the appellants but they did not stop harassing the deceased. On 8.6.2013 at about 7-7:30 p.m., her daughter (deceased) called upon her and when she reached, she found that appellants Kusum Devi, Brijbhan and Premsheela and Subhash (since acquitted) had caught the deceased, carried her inside the house and just thereafter deceased came outside the house in crying and burning state. She further stated that she raised alarm and at that time her son-inlaw (Hari Kishan) came there and put off the fire. They rushed with deceased by ambulance to government hospital, Kerakat and thereafter, to district hospital, Jaunpur where her daughter was admitted for treatment but during treatment she (deceased) succumbed to injuries on 16.6.2013. She further stated that she got F.I.R. (Ex.ka 1) written by some unknown person and after putting her signature filed the same at P.S. Chandvak. 14. In cross-examination, she admitted that information regarding occurrence was given to her, on phone, by Hari Kishan (PW-2) and on getting information, she came to Chandvak from Jaunpur, where she learnt that her daughter was taken away by villagers to Sadar (District) Hospital, Jaunpur, thereafter she rushed to Sadar Hospital and found that her daughter's husband and in-laws were getting her medically treated. She further admitted that, it was 9:00 p.m. of 8.6.2013, when she reached hospital; she had not given any information at Chandvak (police station). Rather she returned from Chandvak to Hospital. She further admitted that house of Subhash (since acquitted) is 100 feet away from house of Hari Kishan and between those two houses, there is house of Banarasi. Upon being questioned about F.I.R. she replied that she got the report written by some unknown bye-passer and at that time neither her daughter was present there nor her opinion was taken. She further deposed that she had gone, one hour before, to lodge F.I.R. from District Hospital Jaunpur to Chandvak (police station); Darogaji (Police) took her away Chandvak (police station) and got F.I.R. lodged by her. On the point of statement of deceased she replied that at that time condition of her daughter was not well due to severe burn injury; Darogaji (police) and other police personnels were present there with her daughter who had gone back after recording statement of her daughter and again returned on next day and took her (PW-1) to police station Chandvak and got F.I.R. written. This witness further admitted that Saas (mother-in-law), Sasur (father-in-law), Nandoi (appellant Brijbhan), Nanad (appellant Kusum) and Nanad's daughter (Premsheela) of deceased used to demand motorcycle but she did not implicate Saas and Sasur of deceased as accused in F.I.R. Finally she fairly admitted that, on 8.6.2013 at 7:30 p.m. she was at her home in Jaunpur; appellants Kusum Devi, Brijbhan and Premsheela had never put any demand of dowry to her; and she had lodged report at police station on the instigation of some people. 15. Hari Kishan (PW-2), husband of the deceased, has stated that he was married to deceased Pratiksha on 12.12.2007. He further stated that he did labour work on brick kiln whereas deceased was a graduate. He further stated that on 8.6.2013 he was doing labour work at brick kiln of one Uma Singh, at that time his neighbour one Vikki s/o Gopal Harijan informed him that his brother-inlaw (appellant) Brijbhan and other family 64 INDIAN LAW REPORTS ALLAHABAD SERIES members were quarreling with deceased. On that information he rushed to his house and saw that his wife (deceased) was burning; he put off the fire and carried her to Community Health Centre, Kerakat. He further stated that appellants Brijbhan, Kusum Devi and Premsheela and Subhash (since acquitted) wanted to kill his wife by setting ablaze as they used to torture her due to demand of dowry i.e. sikadi (golden chain), ring and motorcycle. He further stated that on the date of occurrence i.e. 8.6.2013 at about 7-7:30 p.m., they (appellants and one Subhash) set ablaze his wife (deceased) who succumbed to the burn injuries during treatment. Information of occurrence was given by his mother-inlaw Asha Devi (PW-1) at P.S. Chandvak; upon that information Police and Naib Tehsildar (Executive Magistrate) had conducted the inquest proceeding and prepared inquest report (Ex.Ka 2) whereupon he had also put his signature. He further stated that police had recovered kerosene oil plastic jerrycan and match box from place of occurrence and had prepared seizure memo (Ex.Ka 3) whereupon he had also put his signature. 16. In cross-examination he admitted that appellants Brijbhan, Kusum and Premsheela used to reside at their house at Madho Tanda and they neither demanded any motorcycle or golden chain as dowry from his wife (deceased) nor did they torture her in that regard. He further stated that at the time of occurrence he was at brick kiln and one Vikki Harijan, resident of his village informed him and after getting information, he came to his house from brick kiln and found that his wife had been burnt; and she was unable to speak. He further stated that due to severe burn injury, his wife could not speak, she pointed out to kerosene oil jerrycan but she neither pointed out to anyone nor did she disclose any person as accused. He further stated that he was in hospital and his mother-in-law (PW-1) got F.I.R. written herself. He also admitted that on 8.6.2013 at about 7:30 p.m., appellants Brijbhan, Kusum and Premsheela had not set on fire Pratiksha, by pouring kerosene oil but they were at their house. He further admitted that when his wife was burnt, he was not present in his house hence he could not disclose as to how she got burnt; he reached his house on the information given to him by one Gopal's son, resident of his village. He further stated that when he reached hospital, treatment of his wife (deceased) was continuing. 17. Dr. Ramesh Kumar Singh (PW3) has stated that, on 17.6.2013, he was on post mortem duty and conducted the post mortem of dead body of Smt. Pratiksha Gaur, aged about 24 years, wife of Hari Kishan, at 4:30 p.m. to 5:00 p.m. He further stated that fallowing ante mortem injuries were found on the body of the deceased:- "Infected flamed burn injuries present over whole of face, fore head, whole upper limb involving neck, whole abdomen and back and both upper part of ante thigh except occipital region of head and lower part of both leg and sole shingled hair present about 70% burn present all over body." According to him death of the deceased was caused due to septicemic shock as a result of ante mortem injury infected flamed burn wounds. Stating that at the time of postmortem he had prepared post mortem examination report (Ex.ka 4) in his own hand writing, he further stated that deceased was admitted in hospital on 8.6.2013 at 10:00 p.m. for medical 1 All. Prem Sheela @ Guddi & Ors. Vs. State of U.P. 65 treatment and died on 16.6.2013 at 4:30 p.m. as mentioned in post mortem report. 18. Anoop Gaur (PW-4), brother of the deceased, stating that his sister Pratiksha was married to Hari Kishan (PW-2) in 2007, in mass wedding ceremony, organized by Zebra Group, her nanad appellant Kusum and her nandoi used to beat her due to dowry but he did not know their demands, he stated that he was informed by his mother that Pratiksha had been burnt by her in-laws with kerosene oil. Thereafter he reached the hospital and saw that she had got 80% burn injuries. He further stated that Pratiksha had died in hospital. Darogaji (I.O.) had seized kerosene oil jerrycan, match box, stove and a tin box from place of occurrence and had prepared seizure memo (Ex.Ka 3) which was also signed by him. In cross-examination he stated that at the time of occurrence he was at Siddiquepur and his mother was at his house who informed him in the night of 8.6.2013, upon such information, he rushed to the hospital where his sister was admitted and when he reached at 7-7:30 p.m. he found that deceased was conscious. He further admitted that when he asked her about occurrence she said to look after her child. He further admitted that he was present in hospital from 8.6.2013 till death of his sister. 19. Const. Vinod Saroj (PW-8) has stated that he was posted on 8.6.2013 at P.S. Chandvak, District Jaunpur; he had prepared chik F.I.R. (Ex. Ka 8) pertaining to Case Crime No. 371 of 2013, under Section 498A, 307 I.P.C. and 3⁄4 D.P. Act, on the written information dated 9.6.2013 of Asha Devi (informant), against appellants Kusum Devi, Brijbhan Gaur and Prem Sheela and Subhash (since acquitted) and also entered the said information in G.D. Report (Ex.Ka 9). He further stated that S.I. Mata Prasad Singh was also posted with him and he was acquainted with his writing and signature. According to him, the investigation was started by S.I. Mata Prasad Singh who prepared the site plan (Ex.Ka 10) in his own handwriting and during investigation, offence under Section 304B I.P.C. was added by S.I. Mata Prasad Singh on 17.6.2013 vide G.D. Report No. 40 at 19:30 p.m. 20. Ramesh Chandra Yadav (PW-6) (Executive Magistrate) has stated that on 16.6.2013 he was posted as Tehsildar Sadar, Jaunpur. According to him, on that day at about 6:00 p.m., information was received by him regarding death of deceased Pratiksha. He further stated that inquest was conducted in his supervision by S.I. Vijay Bahadur Singh, in the presence of the family members of deceased. He further deposed that deceased was aged about 24 years and she had died due to burn injuries, in the opinion of Panchan. He stated that after inquest proceeding, inquest report (Ex.ka2) and other relevant documents i.e. photonash, sample seal, letter to R.I., letter to C.M.O. (Ex.Ka 6 to Ka 10), necessary for postmortem examination were prepared; dead body was sealed and was sent for post mortem examination. 21. Ram Kailash Saroj (PW-7) has stated that he was posted as Naib Tehsildar, Jaunpur on 9.6.2013 and in compliance of direction of Sub-Divisional Magistrate, Sadar, he reached the District Hospital, Jaunpur. According to him, deceased Pratiksha was admitted in burn ward where emergency medical officer was present. He further stated that after 66 INDIAN LAW REPORTS ALLAHABAD SERIES getting certificate from the doctor that deceased was mentally and physically fit for giving statement, he recorded the statement/dying declaration of deceased (Ex.Ka 11) (noted in previous paragraph No. 3 of this judgement), in his own handwriting. 22. Mayaram Verma (PW-5), (II I.O.), has stated that on 20.6.2013 he was posted as Dy S.P., Jaunpur, and undertook the investigation of Case Crime No. 371 of 2013 under Section 498A, 304B, I.P.C. and 3⁄4 D.P. Act, P.S. Chandvak, District Jaunpur, which was being investigated by S.I. Mata Prasad Singh. According to him during the investigation he recorded the statements of witnesses Asha Devi (PW-1), Hari Kishan (PW-2), Anoop Gaur (PW-4) and other witnesses including the witnesses of panchnama; he inspected the dying declaration of deceased with permission of Court, on 3.7.2013. He further stated that during the investigation he also recorded the statements of Ramesh Chand (PW-6), Dr. Ramesh Kumar Singh (PW-3), Dr. Alha Prasad and S.I. Mata Prasad. He further stated that after investigation he filed charge sheet (report u/s 173(2) of the Code) against the appellants Kusum Devi, Brijbhan Gaur & Premsheela @ Guddi and Subhah Gaur (since acquitted). 23. Thus the prosecution story is based on the evidence of Asha Devi (PW1), Hari Kishan (PW-2), Anoop Gaur (PW-4) who are the witnesses of fact and evidence of Sri Ram Kailash Saroj (PW-7) who recorded the dying declaration of the deceased. The trial Court, relying the statements of above witnesses as well as dying declaration (Ex.ka 11), has convicted the appellants for the offence of dowry death, demand of dowry and for cruelty or harassment to the deceased. 24. The offence in question in this case is related to demand of dowry, dowry death, cruelty and harassment to deceased for demand of dowry by appellants. Before expressing any opinion on the evidences available on record, led by the prosecution, in the light of argument advanced by the learned counsels for the parties, it is necessary to refer the relevant provision of law relating to the offence in question i.e. 304-B and 498-A I.P.C. and 113-B of Indian Evidence Act which are as under:- Section 304-B (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death. Explanation.--For the purpose of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961. (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life. Section 498-A Husband or relative of husband of a woman subjecting her to cruelty.--Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.--For the purpose of this section, "cruelty" means 1 All. Prem Sheela @ Guddi & Ors. Vs. State of U.P. 67 (a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. Section 113-B of Indian Evidence Act-Presumption as to dowry death.--When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. Explanation.--For the purposes of this section, "dowry death" shall have the same meaning as in section 304B, of the Indian Penal Code. 25. The above provisions clearly show that if death of any women is caused within 7 years of her marriage by burn or bodily injury or otherwise than under normal circumstances and it is shown that if soon before her death such women was subjected to cruelty or harassment by her husband or any relative of her husband, in connection with demand for dowry and if the prosecution succeeds to prove the above ingredients, such death shall be called as dowry death. In addition to above, Section 113-B of Indian Evidence Act, further provides that in such cases, if it is shown that a women was subjected soon before her death to cruelty or harassment by the accused in connection with any demand for dowry, the Court shall presume that such person had caused the dowry death. 26. Cruelty or harassment, soon before death of deceased for demand of dowry as required in Section 304-B I.P.C. and 113-B Evidence Act for dowry death, does not mean just soon before death, but there must be proximity between death of deceased and cruelty or harassment related to demand of dowry. It is settled principle of law that insufficient evidence of demand of dowry or harassment and cruelty or a long time gap between demand of dowry and harassment or cruelty before death of deceased will be fatal to the prosecution case to prove the dowry death. 27. In FIR (Ex.Ka 1) no specific time has been mentioned by the informant as to when cruelty or torture was caused to deceased by the appellants before her death. According to Asha Devi (PW-1) the deceased, after her marriage, had been to her matrimonial house 6-7 times and whenever she returned to her maternal house, she used to disclose that appellants and one Subhash Gaur (Jeth) used to demand the motorcycle in dowry. This witness in her cross examination on 31.1.2017 has specifically admitted that appellants had never demanded any dowry from her and the application filed against them by her was on the enticement of some people. She has also stated that appellants were living separately from the deceased Pratiksha, in their house and there was no tension (dispute) between them. 28. Hari Kishan (PW-2), in cross examination, has also admitted that appellants had neither demanded 68 INDIAN LAW REPORTS ALLAHABAD SERIES motorcycle, golden ring and golden chain nor had committed any cruelty to the deceased. 29. Anoop (PW-4) has also not specifically stated anything regarding demand of dowry or cruelty committed by the appellants to deceased. 30. In dying declaration (Ex.Ka-11) deceased Pratiksha has stated that about one year prior to the occurrence the appellants had tortured her due to demand of dowry and they also had beaten her. She has also stated that she wanted to study but appellants were creating hinderance in her study and under different excuses got her separated from her family. From perusal of dying declaration, it further transpires that on the day of occurrence, the deceased and the appellants had quarreled; one Gappu Singh with two constables had come to the house of deceased; they hurled abuses and instigated the appellants to beat her as the deceased was quarrelsome and as they had left, the appellants had beaten the deceased brutally. She had not stated that at any time soon before the occurrence any demand of dowry was made to her or she was harassed or tortured by appellants in this regard whereas she has narrated so many reasons for dispute between her and appellants. 31. In addition to above, appellants are neither husband nor family members of deceased. They are sister-in-law (nanad), brother-in-law (nandoi) and niece of deceased. They do not reside with deceased.