Vikramaditya Prasad, J.@mdashThis criminal appeal is directed against the order of Shri Vinod Kumar Sinha, the 5th Additional Sessions Judge,
Giridih dated 25.5.1999 and 26.5.1999 whereby and whereunder the learned Court held the appellants guilty in Sessions Trial No. 251 of 1994
and convicted all of them under Sections 304B and 498A of the Indian Penal Code and sentenced each of them to undergo rigorous imprisonment
for nine years u/s 304B of the Indian Penal Code and fine of Rs. 2,000/- each and in default simple imprisonment for three months and further to
undergo rigorous imprisonment for three years u/s 498A of the Indian Penal Code and a fine of Rs. 500/- and in default one month''s
imprisonment. However, both the sentences were ordered to be run concurrently.
2. The conviction arose out of the following prosecution story as appearing in the Fardbeyan (Ext. 1) lodged by Ghanshyam Mandal, the father of
the victim
3. It is not at all in dispute that the deceased Anita Devi was not married to appellant No. 1 and she did not die within seven years of the marriage.
The autopsy of the dead body of Anita Devi was conducted by P.W. 5 Doctor who also proved the Post-mortem report (Ex. 2) and found no
evidence of any injury on the person of the deceased and he could not ascertain the cause of death and consequently preserved the viscera but the
viscera report did never reach the Trial Court and, therefore, whether the viscera contained poison supporting the prosecution allegation of
administering of poison to the deceased remains absence. The conviction is mainly based on the oral dying declaration of the deceased and its
corroboration by the statement of doctor before the police (Ext. 8) who examined the deceased when she was first brought to him.
4. In the aforesaid circumstance the following questions do require answer in this appeal:
(1) Whether the oral dying declaration in the facts and circumstances of the case is reliable piece of evidence on which conviction can be based?
(2) Whether the Ext. 8 which is the statement of the doctor before police who examined the victim is admissible evidence and can be relied upon,
when the doctor did not turn up before the Court to depose?
(3) Whether there is any nexus between the death and torture for the demand of dowry?
5. Fardbeyan (Ext. 1) was recorded on the statement of the father of the victim on 1.12.1992. This is a detailed Fardbeyan as it appears from the
prosecution story (supra) but it does not disclose that the daughter of the informant had made any dying declaration before her death. This simply
says that the informant got information (Pata chala) that her in-laws had administered some poison. The learned Counsel for the appellant has
argued that since the Fardbeyan made much after the death of the victim and contains every detail even of the previous year happening then had
there actually been a dying declaration this would have been mentioned specifically in the FIR and its non-mentioning makes the dying declaration
subsequent concoction and doubtful. To the contrary the learned Counsel for the State has argued that a Fardbeyan is not the Bible and it may not
contain the entire fact and, therefore, on this score alone the dying declaration cannot be disbelieved. But it is clear that the Fardbeyan does not
make any mention as to in whose presence the girl made the dying declaration. Therefore, the specific evidence that has come on the record has to
be scrutinized carefully.
6. P.W. 1 is the brother of the victim. In paragraph 2 he says that on 18.10.1992 in night he got information that his sister had consumed poison
then he and his elder brother Jay Prakash Mandal P.W. 2 went to the sasural of their sister where they found her unconscious and they removed
her to the dispensary of Dr. Ramashankar and during the course of treatment there she regained sense and she uttered that at about 9 p.m. her
mother-in-law and father-in-law had throttled poison to her and then during treatment she died. In paragraph 10 in examination-in-chief he said
that the dying declaration if at all relates to the administration of poison by the mother-in-law and the father-in-law. In paragraph 6 of his cross-
examination this witness says that when his sister made the aforesaid declaration that her mother-in-law and father-in-law had administered poison
at that time there were his mother, his brother and father also present besides doctor Ramashankar From this evidence it is found that only the
mother-in-law and father-in-law were named and at the time of that declaration the aforesaid three persons were also present including the father
(informant). If he was present then in Fardbeyan the father in all fairness was expected to state that his daughter had made such a statement which
he did not. This witness in further cross-examination (in para 12) says that he has stated before the police that after assaulting the mother-in-law
and father-in-law had made Anita to drink poison. P.W. 9 is the I.O. in paragraph 13 he says that during investigation he (P.W. 1) had not stated
specifically that her mother-in-law and father-in-law had administered poison rather he had stated that after assaulting, in-laws had administered
poison. Thus it is found that his evidence before the I.O. was quite omnibus which became categorical in Court.
7. P.W. 2 is another brother of the victim who says that victim was removed to the clinic and there when she regained sense for some time she had
declared that her mother-in-law and father-in-law and her husband had administered jahar and died then and there. In paragraph 10 of his cross-
examination he says that he has stated before the police that after regaining sense she had disclosed that her mother-in-law and father-in-law and
husband had jointly administered poison to her. P.W. 9 the I.O. in his evidence vide para 14 has said that this witness Jay Prakash had not stated
before him that when Anita regained sense she said that the mother-in-law and father-in-law and Ram Lakhan (husband) had jointly administered
poison rather he had stated before the police that she had made the statement that in-laws has committed atrocities and administered poison.
8. P.W. 3 is the father of the victim girl. In paragraph 3 of examination-in-chief he says that it was Ram Lakhan (appellant No. 1) who came and
said that his daughter had consumed poison and then he started fleeing away. At that time it was 12 p.m. in night. Then Jay Prakash Mandal (P.W.
2) and Rajeev Mandal (P.W. 1) went to the sasural of his daughter and from there took her to Dr. Ramashankar and they also went there and the
girl regained sense and stated that she has been put to atrocities and they had administered poison to her. According to him this was a dying
declaration. To a Court question he clarified that among the administrators of the poison there was mother-in-law, father-in-law and husband then
the girl died. In his cross-examination he says that he does not remember whether he made such statement before the police that when he reached
the hospital her daughter regained sense and said that she was put to great julm and they had administered poison to her. In paragraph 4 at page 4
of cross-examination he says that the girl said the name of sas, sasur and pati and this was told to him by his sons (Bachhe). The I.O. vide
paragraph 15 has said that he (father) had not given the statement before him that in the meantime his daughter regained sense and told him that she
was put to great atrocities and in his presence Anita had not stated that poison was administered to her. Thus from his evidence three things
emerge; (1) As per his own statement in para 4 of cross-examination he got information of the alleged dying declaration from his sons. (2) Meaning
thereby he was not present at that time when such declaration was made. (3) He also did not make such a statement before the I.O. or even in his
Fardbeyan.
9. P.W. 4 is the mother of the victim girl. In paragraph 3 in examination-in-chief she says that after coming to know at about 2 a.m. in night (though
according to P.W. 3 it was 1 a.m. in the night and P.W. 2 it was 12 p.m. in the night) from her damad, Rajeev Mandal (P.W. 1) and Jay Prakash
Mandal (P.W. 2) went to her sasural and took her to Dr. Ramashankar''s clinic and when he regained sense she told that her father-in-law and
mother-in-law and husband had administered poison to her and thereafter she died. In cross-examination (Para-8) she says that when she regained
sense she had told her two sons that it was her mother-in-law, father-in-law and husband who had administered poison to her thereafter she died.
In paragraph 10 of cross-examination she was confronted with her previous statement made before the I.O. The I.O. simply said in paragraph 16
that she has said only this much that her daughter had been married in the year 1986. Before the I.O. she did not say about the dying declaration,
but as per own evidence it appears that Whatever dying declaration was made it was made in presence of two sons and she had got information
from her sons regarding it.
Here I find that though in his examination-in-chief the father (P.W. 3) says that victim has said that her in-laws has committed julm and
administered poison, but in his answer to a Court question on that very moment he became elaborate in telling the names of the persons. Evidence
on oral dying declaration should come in the form in which it was heard and then the Court appreciating it may come to a conclusion as to what
was the meaning and indications of the deceased when he or she made it. Any Court question at the time of recording the trial though intended to
remove ambiguity but, in fact, spoils the chastity of the statement, because the witnesses may use such an opportunity for adding or substracting
something which may give a entire different meaning to what was actually said.
10. Uptil now it appears that two persons P.W. 1 and P.W. 2 were the persons in whose presence the dying declaration was made which is clear
from the evidence of P.W. 4 also. The presence of P.W. 3 appears to be doubtful but to be safe I wish to compare the statement (dying
declaration) as was heard by these three witnesses. P.W. 1 categorically said that her sas, sasur had administered poison (paragraph 1 and
paragraph 6) though he did not speak this before the police. P.W. 2 says (paragraph 3) that sas, sasur and husband administered poison while
father P.W. 3 says that she said she was put to great atrocities and they had administered poison. The variation in the statement is not difficult to
decipher. While P.W. 1 completely excludes the husband, P.W. 2 includes the husband. P.W. 3 gives a general statement and that general
statement was got specified by the Court. Anything said by the victim is expected to be heard in the same wards in which it was said. Here three
witneses are hearing three things, therefore, I am of the view that these variations are due to conjectures and feeling of these three witnesses and
not based on the real facts and, therefore, when the FIR was being drawn at that time also this dying declaration did not come in picture and,
therefore, the father though he claims that he was present at the alleged time of dying declaration did not specifically disclose it though he gave
every detail of the happenings right from the date of the marriage.
11. In the aforesaid circumstances it is held that their oral dying declaration is doubtful and not dependable and non-disclosure of such a dying
declaration at the earliest in the Fardbeyan adds more doubt to this claim of the defence that no dying declaration was made. It is also held that the
oral dying declaration when is stated before the Court by interested witnesses must come in its original form, a bit variation notwithstanding then it
should be appreciated when the trial is concluded. The Court should not prompt a witness to give a particular meaning of that oral dying
declaration and thus enlarging the scope of the dying declaration at the time of examination-in-chief of the witnesses. Such promptness, though may
be inquisitive on the part of the Court but it helps the prosecution.
12. Question Nos. (2) Whether the Ext. 8 which is the statement of the doctor who examined first the victim can be admissible evidence and relied
upon when doctor himself did not turn up before the Court to say it?
By now it is found that according to the P.W. 2, Doctor Ramashankar was also present when the dying declaration was made by the victim, when
other witnesses aforesaid are the interested witnesses and could be prompted to concoct a story, the doctor was an independent witness, his
statement before the police is contained in case diary. It has been admitted as (Ext. 8). The Trial Court used this statement (Ext. 8) as the
corroborating evidence coming from an independent witness. This witness never was produced as a witness and on scanning the entire order sheet
or the evidence I have not been able to find that this witness is either dead or untraceable or it was difficult to find out his whereabout. The
statement recorded u/s 161 of the Cr.P.C. can be used for the purposes of contradicting the person who made the statement and not for
corroborating him or any other witness. It is settled principle of law that the statement made during the police investigation are not substantive
evidence and cannot be treated as such and it can be used for the purpose of contradiction of its manner. The proviso Section 162(1) can be used
for the purposes of contradiction of the witnesses. Section 33 of the Evidence Act permits admission of such evidence given by a witness in judicial
proceeding or before any person authorised by law to take it, when the witness is dead or cannot be found or incapable to give evidence or kept
out of the way by the other party or his presence cannot be obtained.
13. Here the statement before the police is not evidence and such statement cannot be treated as an evidence before person authorised by law to
take it. The police is authorised by law to collect the statement but not to record the evidence. Therefore, Section 33 of the Evidence Act is not
applicable, consequently the admission of Ext. 8 as evidence is illegal and so corroboration of the witnesses (supra) by this piece of evidence is
also illegal. This second question is answered accordingly. Thus the learned Trial Court has erred in admitting this evidence and using it for the
purpose of corroborating other witnesses in arriving at the finding.
14. Question No. (3): Whether there is any nexus between the death and torture for the demanded of dowry?
The FIR (Ext. 1) clearly states that one year prior to the occurrence the accused persons after assaulting Anita had. broken her leg and it were the
parents who got her treated and in-laws had not even come to see her. This was the affair of one year ago, according to the FIR. According to the
FIR further on 16.10.1992, two days prior to the occurrence the mother-in-law, father-in-law and husband had abused her. The FIR does not
show that this abuse was for the purpose of demand of dowry.
15. P.W. 1 the brother in his examination-in-chief says the story of the fracture of leg one year earlier had made a general allegation that they used
to torture her for dowry. He does not give any specific time of such torture though one year prior they fractured her leg is stated categorically. In
paragraph 8 this witness says that he came to know from the neighbour that Anita was tortured time-to-time. No neighbour has been examined
and even no name of such witness has been disclosed. In paragraph 10 he admits that no panchayati was even called for to deal with the situation
and in his evidence before I.O. he did not say that Anita was being tortured from time-to-time (paragraph 13 of the I.O. read with paragraph 9).
Thus he is making the statement for the first time before the Court that from time-to-time Anita was being tortured and he had come to know this
fact from the neighbours.
16. P.W. 2, another brother of the victim girl in paragraph 3 states making the allegation of one year prior to death makes statement that from
time-to-time she was put to cruelty by the in-laws and they also used to demand dowry and one room. He also says that no panchayati was done.
In cross-examination he says that in-laws always used to demand one room and for that they caused cruelty. The father says that in-laws
demanded land for constructing a house. To a Court question in his examination-in-chief he said that he had executed a sale deed of some land in
the name of daughter in the year 1992. In paragraph 5 in cross-examination he says (para 4) that he had never spoken earlier that her in-laws had
demanded land but actually he had given the land. While the other two brothers (supra) deny any panchayati this witness says in paragraph 8 that
there was a panchayati but he does not remember in which year the panchayati was done. In paragraph 13 he says that regarding the atrocities he
came to know from the neighbour of the accused persons but he cannot say their names nor the date on which they said it. The mother P.W. 4
says in paragraph 6 that her daughter was tortured which was told by neighbour of the accused but she does not know the name of any person. In
paragraph 12 she says that in-laws demanded dahej but no complaint was made against such demand. P.W. 7 through her wife came to know that
she was being tortured but that wife has not come to say so and thus this witness is only hearsay witness on this point.
17. By now it appears that about the cruelty the knowledge was gained by the prosecution witnesses from the neighbour of the accused persons,
but the prosecution failed to examine any such witness or even to name them as a witness. To the contrary the defence examined no witnesses.
D.W. 1 proved that there was a partition though the partition deed was not proved it was simply marked for identification and said that accused
persons were living at the same place but in the different houses and when the partition among the accused had taken place many other witnesses
were also present (D.W. 1, Paras 2 and 3). The informant P.W. 3 was confronted with the question that whether the accused persons lived
separately which he had denied. D.W. 2 also said that they lived separately and in this regard Ext. A was produced in which name of husband,
wife and two children aged about 10 years and 7 years appears. This Ration Card is completely a doubtful document for the reasons that it
appears to have been prepared in the year 1996 but it contains the name of the deceased who had already died in the year 1992. The sale deed
by which the informant claims to have given land to his daughter on the demand for such by in-laws had not been brought on record which could
have been a very convincing piece of evidence, that demand was made and corresponding to that such a deed was executed. Thus this withholding
of the deed is not explained. Thus it is not proved that soon before the occurrence there was the atrocities to some demand of dowry, of course,
one year prior to the death, there is allegation of fracture of leg by the in-laws but that time, distance and the death are wide apart. Under the
aforesaid circumstances it is held that the most essential ingredient (soon before the occurrence) for proving the offence has not at all been proved.
Thus it is held that there is no immediate nexus between the death and any cruelty perpetrated for demand of dowry.
18. Thus in the entirety of the discussion made above I find that the learned Trial Court''s reliance on oral dying declaration is unjust because there
were inherent contradictions among the witnesses about the exact declaration made and that cannot be attributed to variation due to lapse of time
and it was further vitiated by putting a question in the examination-in-chief whereby the prosecution witnesses got an opportunity to give a larger
meaning to the dying declaration and it was further vitiated by its corroboration by a non-admissible evidence. The Trial Court also erred in finding
that there was nexus between the death and demand of dowry and the atrocities pertaining thereto.
Thus I find that because of these errors, the learned Trial Court came to a wrong decision. The death of a young lady is no doubt is a cause of
concern but in holding conviction the Court should be cautious that section is not misused.
19. In the result I find that prosecution has failed to prove the charge u/s 304B and also u/s 498A of the Indian Penal Code beyond all reasonable
doubts and consequently the convictions under these sections and the sentence have to be set aside, which are hereby set aside. This appeal is
allowed. The appellants are already on bail, they are acquitted of the charges and discharged from their bail bonds.