1

AFR

Reserved on 20.09.2019

Delivered on 07.11.2019

Court No. - 1

Case :- CRIMINAL APPEAL No. - 5021 of 2011

Appellant :- Kunwar Pal

Respondent :- State Of U.P.

Counsel for Appellant :- Abhitabh Kumar Tiwari,Ajay Kumar

Mishra,Amit Rana,Lokesh Kumar

Mishra,Noor Mohammad

Counsel for Respondent :- Govt. Advocate

With

Case :- GOVERNMENT APPEAL No. - 7242 of 2011

Appellant :- State Of U.P.

Respondent :- Smt. Leelawati And Others

Counsel for Appellant :- Govt. Advocate

Counsel for Respondent :- Ayank Misra

Hon'ble Ramesh Sinha,J.

Hon'ble Ajit Kumar,J.

(Delivered by Ramesh Sinha,J.)

1.The present Criminal Appeal has been preferred by the

appellant Kunwar Pal against the judgment and order dated

12.8.2011 passed by the Additional Sessions Judge, Court

No.11, Meerut in S.T. No.346 of 2007 (State Vs. Kunwar Pal

and Others), by which he has been convicted and sentenced to

undergo for life imprisonment under Section 304B I.P.C. and

further to undergo imprisonment for three years and fine of

Rs.5000/- under Section 498A I.P.C. and in default of payment

of fine further undergo imprisonment for six months and to

undergo imprisonment for one year and fine of Rs.1000/- under

Section 4 of D.P. Act and in default of payment of fine further

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undergo imprisonment of one month. All the sentences have

been ordered to run concurrently.

2.The State Government has also preferred a Government

Appeal being aggrieved by the aforesaid judgement and order

of the trial Court by which the trial Court has acquitted the

accused respondents no.1 to 3, namely, Smt. Leelawati, Smt.

Omwati and Hirday Kumar from the aforesaid charges, which is

also connected with the present appeal.

3.The prosecution case as has been set-forth in the written

report which has been lodged by the complainant Pintoo, son of

Mahendra Singh, resident of Village Khanauda, Police Station

Daurala, District Meerut is that on 5

th

May, 2004 his sister,

namely, Smt. Pinki was married to Kunwar Pal, son of Ram

Singh, resident of Village Saini, Police Station Inchauli

according to Hindu rites and traditions and in the marriage

sufficient dowry was given but the in-laws of Smt. Pinki were not

happy with the dowry and they started pressurizing Smt. Pinki

for demand of a colourT.V., motorcycle and Rs.50,000/- from

her father. The husband of Pinki, namely, Kunwar Pal, mother-

in-law Smt. Leelawati, who were resident of Village Saini and

sister-in-law, namely, Smt. Ompati and brother-in-law, namely,

Hirday Kumar presently residing at Village Saini used to cruelly

treat her and assault her for dowry. Pinki had told to her parents

about the said fact, on which the informant and his family

members had tried to pacify the in-laws of Smt. Pinki but they

still used to assault and mentally torture her. On 7.12.2006 at

10.35 a.m. all the accused persons poured kerosene on her and

set her ablaze and information regarding the same was given to

the father of Pinki on phone by the villagers of Village Saini. On

which, father and family members of Smt. Pinki reached at the

in-laws house of Smt. Pinki in Village Saini and admitted her for

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medical treatment in District Hospital Pyare Lal Sharma,

Meerut. The doctor after seeing her in badly burnt condition,

referred her to Medical College, Meerut and during treatment

on 8.12.2006 in the morning at about 4.45 a.m. Pinki

succumbed to her burn injuries. Kunwar Pal had also committed

murder of his first wife Smt. Anju, D/o Gajraj Singh, R/o

Bulandshahr and with regard to the said case an FIR was also

registered against him at police station Inchauli being Case

Crime No.172 of 1997, under Section 304B I.P.C. and the said

fact came in the knowledge of the informant after the marriage

of his sister Pinki. Thus, he prayed that the First Information

Report be registered and proper action be taken.

4.In pursuance of the said written report, the First

Information Report was registered on 8.12.2006 at 14.45 p.m.

being Case Crime No.378 of 2006, under Sections 323, 498A

and 304B I.P.C. and under Section ¾ Dowry Prohibition Act,

Police Station Inchauli, District Meerut against the accused

husband Kunwar Pal, mother-in-law Smt. Leelawati, sister-in-

law (nanad) Smt. Omwati and brother-in-law (Bahnoi) Hirday

Kumar respectively.

5.The Investigating Officer after investigation, submitted

charge sheet against the appellant and other three accused

persons for the offence punishable under Sections 323, 498A,

304B I.P.C. and ¾ D.P.Act in the Court of C.J.M, Meerut and

C.J.M. Merut on 16.3.2007 committed the case of the accused

to the Court of Sessions for trial.

6.The trial Court framed charges against the appellants

Kunwar Pal and accused respondents no.1 to 3, namely, Smt.

Leelawati, Smt. Omwati and Hirday Kumar for the offence under

Sections 498A, 323, 304B I.P.C. and ¾ D.P. Act. The accused

denied charges and claimed their trial.

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7.The prosecution in support of its case examined PW1-

Pintoo (the informant and brother of the deceased), PW2-

Mahendra Singh (father of the deceased), PW3-Constable

Maroof Ali, PW4-Dr. Satendra Satyaveer Savyasachi, PW5-Dr.

Vikram Singh, Senior Pathologist, District Government Hospital,

Meerut who conducted the post mortem of the dead body of the

deceased Smt. Pinki, PW6-Rakesh Kumar, Naib Tehsildar,

Meerut under whose supervision the panchayatnama of the

deceased was prepared, PW7-Mahendra Bahadur,Tehsildar,

Meerut who recorded the dying declaration of the deceased

Smt. Pinki, PW8-Dr. Ajeet Kumar who gave the fitness

certificate regarding the mental condition of the deceased,

PW9-Rajesh Kumar Srivastava, Circle Officer who started the

investigation, PW10-B.P.Singh, Circle Officer who concluded

the investigation and submitted the charge sheet against the

accused persons.

8.The statements of the accused were recorded under

Section 313 Cr.P.C. and in their statements the accused have

stated that they never demanded any colour T.V., motorcycle

and Rs.50,000/- cash as dowry from the deceased or her family

members and further stated that they have not committed the

murder of the deceased Smt. Pinki and on the advice of some

persons, a false report was lodged against them. It was also

stated by the accused that a false dying declaration of the

deceased Smt. Pinki was recorded as she was not in a

condition to give the statement. The investigating officer

submitted a wrong charge sheet against them. The accused

intended to adduce evidence in evidence but on 8.6.2011 they

stated that no evidence in defence is to be adduced on their

behalf.

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9.The trial Court after examining the prosecution as well as

defence evidence arrived at a conclusion convicting and

sentencing the appellant Kunwar Pal for the offence under

Sections 498A, 304B I.P.C. and 4 D.P.Act, whereas it acquitted

the accused respondents no.1 to 3, namely, mother-in-law Smt.

Leelawati, sister-in-law (Nanad) Smt. Omwati and brother-in-law

(Bahnoi) Hirday Kumar.

10.The appellant Kunwar Pal being aggrieved by his

conviction and sentence preferred the present criminal appeal

against the judgement and order of the trial Court and the State

Government has filed the Government Appeal against the

acquittal of the accused respondents no.1 to 3, namely, mother-

in-law Smt. Leelawati, sister-in-law (Nanad) Smt. Omwati and

brother-in-law (Bahnoi) Hirday Kumar of the deceased Smt.

Pinki respectively. Thus, both the appeals arise out of the

common judgement and order, hence, are being decided by this

common judgement and order.

11.Learned counsel for the appellant has mainly argued the

appeal on behalf of the appellant Kunwar Pal on the question of

sentence. He submitted that the appellant Kunwar Pal who is

husband of the deceased has been in jail since 31.12.2006

near about 13 years. He submitted that the minimum

punishment provided under Section 304B I.P.C. is 7 years and

the trial Court has erred in recording the conviction of the

appellant under Section 304B I.P.C. and sentencing him for

maximum period of life imprisonment, which is too severe,

hence he should be released to the period already undergone

as he has already served almost 13 years in jail for the ofence

under Section 304B I.P.C.

12.He next submitted that even if the dying-declaration of the

deceased is believed, then perusal of the same goes to show

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that there appears to be some quarrel between the appellant

and the deceased as the deceased was issue-less and

marriage between the deceased and appellant Kunwar Pal was

solemnized two years prior to the incident and due to frustration

the deceased had set ablaze herself, though it has been stated

by the deceased that she was set ablaze by her husband

Kunwar Pal because of demand dowry and a child.

13.He has also drawn the attention of the Court towards

another fact that though the deceased has stated that the

appellant Kunwar Pal had set her ablaze by pouring kerosene

oil and thereafter she ran outside the house, but none had

come to save her and to extinguish the fire and it was the

appellant Kunwar Pal who himself extinguished fire on the

deceased and thereafter he ran away from the place of

occurrence. Thus, he argued that if the dying declaration of the

deceased is taken to be true, then an effort was made by the

appellant himself to extinguish the fire of the deceased and

since he has already undergone about 13 years in jail, his

period may reduce to already undergone and sentence for life

imprisonment be set aside.

14.So far as the argument of learned counsel for the

appellant with respect to the accused respondents no.1 to 3,

namely, mother-in-law Smt. Leelawati, sister-in-law (nanad)

Smt. Omwati and brother-in-law (Bahnoi) Hirday Kumar against

their acquittal by the trial Court from the charges are concerned,

against which the State Government has preferred the

aforesaid Government Appeal, he argued that as per the dying

declaration of the deceased, the mother-in-law of the deceased

was not present on the date and time of the incident as she was

out of the house, whereas sister-in-law Smt. Omwati and

brother-in-law Hirday Kumar are concerned, there appears to

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no allegation against them in the dying declaration, hence they

have been falsely implicated in the present case as accused

by the complainant PW1 Pintoo and PW2 Mahendra who are

brother and father of the deceased respectively who have given

evidence regarding the involvement of the said accused on the

basis of the information given by the deceased to the PW1 that

the said accused also participated in the crime, is belied. Thus,

he argued that acquittal of the said accused respondents no.1

to 3 by the trial Court does not suffer from any perversity which

may call for this Court to interfere with the acquittal by the trial

Court and prayed that Government appeal be dismissed.

15.Per contra, learned AGA on the other hand, has

vehemently opposed the arguments of learned counsel for the

appellant Kunwar Pal with respect to his conviction and

sentence under Section 304B I.P.C. is concerned and

submitted that the trial Court has rightly convicted and

sentenced the appellant Kunwar Pal under Section 304B I.P.C.

for life imprisonment taking into account the dying declaration of

the deceased which was recorded by the PW7-Mahendra

Bahadur Tehsildar (PW7) and fitness certificate was given by

PW8-Dr. Ajeet Kumar and on the strength of the evidence he

submitted that the dying declaration specifically mentions the

appellant Kunwar Pal for setting ablaze the deceased by

pouring kerosene oil who also fled away from the place of

occurrence and the deceased was admitted in the hospital by

her father who arrived at the place of occurrence on receiving

an information from the villagers after the incident.

16.He next submitted that the marriage of the appellant with

the deceased was solemnized two years prior to the incident,

i.e.on 7.4.2004 whereas the incident had taken place on

7.12.2006 and the deceased was subjected to cruelty for want

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of dowry and succumbed to her injuries on the next day, i.e., on

8.12.2006, hence, the trial Court has rightly convicted and

sentenced the appellant under Section 304B I.P.C. for life

imprisonment. Thus, the appeal of the appellant is liable to be

dismissed.

17.So far as the acquittal of the accused respondents no.1 to

3, namely, mother-in-law Smt. Leelawati, sister-in-law (Nanad)

Smt. Omwati and brother-in-law (Bahnoi) Hirday Kumar which

has been challenged in the Government Appeal preferred by

the State Government are concerned, he argued that the

statements of PW1-Pintoo (brother of the deceased) and PW2-

Mahendra (father of the deceased) respectively goes to show

that the deceased was harassed, beaten and tortured for the

demand of dowry in the form of colour T.V., motorcycle and

Rs.50,000/- cash soon after the marriage, for which the

deceased had also told to her father Mahendra.

18.He further submitted that when PW1 along with his father

PW2 reached the house of in-laws of the deceased after

receiving the information from villagers, the deceased was done

to death by the said accused respondents no.1 to 3 along with

her husband Kunwar Pal, hence, their acquittal by the trial Court

appears to be wrong and be set aside and they be convicted.

19.In order to appreciate the arguments advanced by learned

counsel for the parties in the aforesaid two appeals, it would be

appropriate to consider the evidence adduced by the

prosecution witnesses before the trial Court.

20.PW1-Pintoo who is brother of the deceased and

complainant of the case, in his evidence before the trial Court

has reiterated the prosecution case as has been stated in the

FIR. He stated before the trial Court that the marriage of his

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sister Pinki was solemnized with accused Kunwar Pal on

7.4.2004 but since marriage the accused were harassing his

sister and were demanding motorcycle, colour T.V. and

Rs.50,000/- in cash and when their demand was not fulfilled, on

7.12.2006 at about 10.35 a.m. they poured kerosene oil on the

deceased Smt. Pinki and set her ablaze. On receiving

information, he reached at the house of his sister’s in-laws

where he found his sister in a burnt condition, who told that it

was the accused persons who have burnt her death. She was

immediately rushed to the Pyare Lal Sharma District Hospital,

Meerut where she was admitted but since her condition was

critical, she was referred to Medical College, Meerut where she

died on 8.12.206 at 14.45 a.m. PW1 Pintoo proved the written

report lodged by him at police station Inchauli District Meerut

which was marked as Ext. Ka.1.

21.PW2-Mahendra Singh who is father of the deceased,

deposed before the trial Court that Pinki was his elder daughter

and her marriage was solemnized with accused Kunwar Pal on

7.4.2006 but since her marriage accused Kunwar Pal

(husband), Smt. Leelawati (mother-in-law), Smt. Omwati (sister-

in-law) and Hirday Kumar (brother-in-law) of the deceased

respectively were not happy and were demanding colour T.V.,

motorcycle and Rs.50,000/- in cash as dowry and continuously

harassed and tortured his daughter. He stated that he received

a telephonic message that his daughter Smt. Pinki has been

burnt by the accused and when he reached at the house of the

accused, his daughter was found lying on the floor in burnt

condition and she informed that it was all the accused persons

who burnt her. He further deposed that Smt. Pinki was admitted

in District Government Hospital, Meerut and thereafter she was

referred to Medical College where she succumbed to her

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injuries in the morning during treatment and prior to it her dying

declaration was recorded by the Naib Tehsildar (PW8) .

22.PW3- Constable Maroof Ali is the formal witness who has

proved the FIR lodged about the incident and relevant G.D.

which have been marked as Ext. Ka.2 & 3.

23.PW4-Dr.Satendra Satyaveer Sabyasachi deposed before

the trial Court that on 7.12.2006 he examined the deceased

Smt. Pinki wife of Kunwar Pal at District Hospital Meerut at

about 2.10 p.m. an found that she was burnt about 60-70% and

proved the injury report which has been marked as Ext. Ka.4.

He found the following injuries on her person:-

“Superficial to deep burn (80%) all over body, skin peeled

off at places. Burn is all over body except right side face,

right thigh, middle hand, left thigh, middle lower both legs

and both foot and both sole and both legs.

24.He also stated that he noticed the smell of kerosene oil on

the person of the deceased and he has also proved the injury

report.

25.PW5-Dr. Vikram Singh, Senior Pathologist posted at

P.L.Sharma Hospital,Meerut deposed before the trial Court that

he conducted the post mortem of the dead body of the

deceased Smt. Pinki on 8.12.2006 at about 3.15 p.m. and

proved the same as Ext. Ka.5 and stated that the deceased

died due to superficial burn injuries about 80% and found the

following the following anti mortem burn injuries:-

1.Body is covered by surgical dressing except

front half face, right and left buttock umblicus, right

side thigh lateral aspect and right knee, right leg, left

thigh posterio lateral aspect, left knee joint, left leg,

right and left sole, lower part of back.

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2.Superficial to deep burn (80%) all over body

except injury no.1,

___Line of redness present at burn wound margins.

___ Small blisters present (vesicles).

___Singing of scalp hairs and eye-lashes present.

In the opinion of the doctor, the cause of death

of the deceased is due to asphyxia as a result anti

mortem burn injuries.”

26.PW6-Rakesh Kumar has deposed before the trial Court

that on 8.12.2006 he was posted as Naib Tehsildar in District

Meerut and inquest report of the deceased was prepared in his

supervision and he has proved the inquest report, copy of the

G.D in this regard, letter to C.M.O., letter to R.I., photolash, form

no.77, specimen seal, which have been marked as Ext. Ka.6 to

Ka.12.

27.PW7-Mahendra Bahadur has deposed before the trial

Court that he was posted as Naib Tehsildar, Meerut on

7.12.2006 and further stated that on receiving the information

he reached at Medical College Hospital, Meerut for recording

the dying declaration of Smt. Pinki and found that she was

conscious and was in a position to give statement and PW8-

Dr.Ajeet Kumar also certified her mental fitness and thereafter

he recorded dying declaration on 7.12.2006 between 6.05 p.m.

to 6.35 p.m. and proved the said dying declaration and which

has been marked as Ext. Ka.13.

28.PW8-Dr. Ajeet has deposed before the trial Court that he

was on duty in the emergency at Medical College Hospital,

Meerut on 7.12.2006 and Tehsildar Mahendra Bahadur (PW7)

arrived for recording the statement of Smt. Pinki when she was

in a burnt condition and he further gave certificate that she was

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able to make statement and her statement was recorded from

6.05 p.m. to 6.35 p.m. by which time the same was completed

and he again certified about her mental condition which was

found to be a sound one. He has proved the said two

certificates of the mental state of the deceased firstly given at

7.12.2006 at about 6.05 p.m. and the second after which her

statement was completed at 6.35 p.m. on the same day as Ext.

Kha.14 & 15.

29.PW9-Rajesh Kumar Srivastava, Circle Officer who was

also examined by the trial Court has deposed that he was

posted as Circle Officer, Daurala on 8.12.2006 and had taken

over the investigation of the present case and informant of the

case, i.e., PW1 Pintoo and he has proved the marriage card

(calendar wherein programme of the marriage of Smt. Pinki with

accused Kunwar Pal dated 7.4.2004 was published) and proved

the same as Ext. Ka.16.He further proved the site plan of the

place of occurrence as Ext. Ka.17 and has also shown the

place where the deceased was found to be burnt in the house

of the accused. He proved memo of piece of floor, place of

occurrence and memo of open closing of lock of the house of

the accused which has been marked as Ext. Ka.18 & 19.

30.PW10-B.P.Singh, who is the second Investigating Officer,

has deposed before the trial Court that on 23.12.2006 he was

posted as Circle Officer, Daurala and he had taken over the

investigation of the case after the earlier Circle Officer Rajesh

Kumar Srivastava was transferred. He completed the

investigation and submitted the charge sheet against the

accused persons for the offence under Sections 498A, 304B

I.P.C. and ¾ D.P.Act and proved the same as Ext. Ka.20.

31.Heard Sri Ajay Kumar Mishra, learned counsel appearing

for the appellant Kunwar Pal in the present criminal appeal and

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holding brief of Sri Ayank Mishra, learned counsel appearing for

the accused respondent no.1 to 3 in Government Appeal and

Sri G.P.Singh, learned AGA for the State .

32.As the learned counsel for the appellant has confined his

argument only to the extent on the question of sentence of the

appellant Kunwar Pal under Section 304B I.P.C. for life

imprisonment awarded by the trial Court, as has been referred

above, the Court proceeds to consider the said argument of the

learned counsel for the appellant to that extent.

33.It is admitted to the parties that the deceased Smt. Pinki

was married with the appellant Kunwar Pal on 7.4.2004 and the

incident had taken place on 7.12.2006 at about 10.35 a.m. and

she was found in a burnt condition in the house of the accused

appellant Kunwar Pal and thereafter she succumbed to her

injuries on 8.12.2006 on at about 4.45 a.m. in the morning. Prior

to it, the dying declaration of the deceased was recorded by

PW7-Mahendra Bahadur, Naib Tehsildar, Meerut and fitness

certificate regarding her mental state was also given by Dr.

Ajeet Kumar (PW8) on 7.12.2006 firstly before recording her

statement at 6.05 p.m. and thereafter again at 6.35 p.m. on the

same day after her statement was completed. The dying

declaration has been proved by PW7 as Ext. Ka.13 and fitness

certificate has also been proved by PW8 as Ext. Ka.14 & 15

respectively.

34.The dying declaration is in question and answer form in

which the deceased has categorically stated that her husband

Kunwar Pal had set her ablaze by pouring kerosene oil on her

in the morning at 10 a.m. and set her ablaze for for want of

dowry and for a child. She further stated that she ran outside

but none had come to save her or to extinguish her fire and her

husband had extinguished her fire and fled away. She further

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deposed that her father-in-law and mother-in-law were not

present in the house as they had gone outside. Further, from

the dying declaration it is evident that she was admitted in the

hospital by her parents. The presence of the accused

respondents no.1 to 3, namely, mother-in-law Smt. Leelawati,

sister-in-law (nanad) Smt. Omwati and brother-in-law (Bahnoi)

Hirday Kumar were also not disclosed by her in the said dying

declaration.

35.The trial Court after considering the dying declaration of

the deceased has convicted the appellant Kunwar Pal for the

offences in questions and sentenced him for life imprisonment

under Section 304B I.P.C., whereas the trial Court has

acquitted the accused respondents no.1 to 3, namely, mother-

in-law Smt. Leelawati, sister-in-law (nanad) Smt. Omwati and

brother-in-law (Bahnoi) Hirday Kumar as it did not found their

participation or presence in the house on the date of time of the

incident except the husband Kunwar Pal. Hence, involvement of

the appellant Kunwar Pal for setting ablaze his wife Smt. Pinki

by pouring kerosene oil is well established beyond reasonable

doubt. Thus, the conviction of the appellant Kunwar Pal under

Section 304B I.P.C. along with other offences is fully justified in

the facts and circumstances of the case, which has also not

been assailed and disputed by learned counsel for the

appellant, but he has assailed the impugned judgment and

order of the trial Court on the question of sentence arguing that

minimum sentence provided under Section 304B I.P.C. is 7

years R.I. and the trial Court has committed error in sentencing

the appellant Kunwar Pal for life imprisonment and as he is on

the verge of completing 13 years of sentence as he is in jail

since 31.12.2006, hence, his period of sentence may be

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reduced to already undergone, hence, sentence for life be set

aside and he be released accordingly.

36.Learned AGA on the other hand, has though opposed the

argument of learned counsel for the appellant on the question of

sentence but he could not dispute the fact that as per the dying

declaration of the deceased it is quite apparent that though the

deceased was set ablaze by the appellant Kunwar Pal for want

of dowry and a child and when the deceased ran outside the

house, none had come to rescue her or to extinguish her from

fire and it was her husband Kunwar Pal who had extinguished

fire from her body and thereafter had fled away from the place

of occurrence.

37.Learned AGA has further pointed out that as per the FIR it

is apparent that the appellant Kunwar Pal had also earlier

murdered his first wife in the year 1997 for want of dowry for

which a case was also registered under Section 304B I.P.C.,

hence, the said factor was considered by the trial Court in

sentencing the appellant for life imprisonment, to which learned

counsel for the appellant submitted that in the said case he was

acquitted by the trial Court.

38.The two circumstances which have been mentioned in the

dying declaration of the deceased for setting ablaze the

deceased earlier by the appellant Kunwar Pal that she was

burnt by her husband only on account of dowry and a child goes

to show that the deceased was issueless and it appears that in

heat of passion the deceased was burnt by the appellant

Kunwar Pal, but it was the appellant Kunwar Pal who had

extinguished the fire from the body of the deceased, goes to

show that he tried to realize his mistake and after extinguish fire

from the deceased he fled away. The said conduct of the

appellant Kunwar Pal goes to show that the incident had taken

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place on account of heat of passion and the sentence of the

appellant Kunwar Pal by the trial Court for life imprisonment

under Section 304B I.P.C. appears to be too severe.

Thus, while upholding the conviction of the appellant Kunwar

Pal by the trial Court, but considering the facts and

circumstances of the case we are of the considered opinion that

it would meet the ends of justice that the sentence of the

appellant Kunwar Pal under Section 304B I.P.C. be modified

from life imprisonment to 14 years R.I. and, therefore, his

sentence for life imprisonment under Section 304B is hereby

modified accordingly to the extent of an imprisonment upto 14

years R.I.

39.So far as the argument of learned AGA with respect to

acquittal of the accused respondents no.1 to 13, i.e., mother-in-

law Smt. Leelawati, sister-in-law (nanad) Smt. Omwati and

brother-in-law (Bahnoi) Hirday Kumar in the aforesaid

Government Appeal by the trial Court is concerned, the same

does not find force as it is evident from the dying declaration

that the said three accused respondents were not found to be

present on the date and time of the incident at the place of

occurrence and the deceased has only levelled allegation

against her husband Kunwar Pal for setting her ablaze and

evidence of PW1 and PW2 that it was the deceased who had

informed them that the accused respondents have set her

ablaze, is belied by the dying declaration itself.

40.Learned AGA also could not dispute the fact that except

the husband Kunwar Pal against whom allegation of burning the

deceased finds mention in the dying declaration, the presence

of the other accused respondents does not find mention and

hence the argument raised by learned counsel for the accused

respondents no.1 to 3 that the judgement and order of the trial

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Court does not suffer from any perversity with respect of the

said appellants, has merit and we find justification in their

acquittal by the trial Court.

41.In view of the above, the appeal with respect to appellant

Kunwar Pal is partly allowed.

42.The Government Appeal with respect to accused

respondents no.1 to 3, i.e., mother-in-law Smt. Leelawati, sister-

in-law (nanad) Smt. Omwati and brother-in-law (Bahnoi) Hirday

Kumar of the deceased respectively, is hereby dismissed.

(Ajit Kumar, J.) (Ramesh Sinha,J.)

Order Date :- 07.11.2019

NS