JUDGMENT K.N. Ojha, J.
1. Heard Sri Mithlesh Kumar Tiwari, learned Counsel for the applicant and Sri Virendra Singh, learned Counsel for the complainant, learned A.G.A. and have gone through the record.
2. Applicants Smt. Saima and Matloob are in jail in Crime No. 1702/2005 under Sections 498A, 307, 304B IPC and 3/4 Dowry Prohibition Act, P.S. Nazibabad, district Bijnor.
3. Since both applications have been moved in respect of same occurrence in crime No. 1702/2005, therefore, both these applications are to be disposed of by common order.
4. According to prosecution Jahangir resident of village Noor Basti, P.S. Kotwali Nagar, Saharanpur lodge FIR under Section 498A/307 IPC and 3/4 Dowry Prohibition Act containing the fact that he had married his sister Smt. Jahanara with accused Matloob on 30.11.1999. Abdul Quyyum is father-in-law of deceased Smt. Jahanara, Jafar is Devar, Rais is Jyestha and Smt. Saima who is applicant in this case is mother-in-law. It is said that since the time Smt. Jahanara went to the residence of the applicants and other accused persons of Mohalla Jaftaganj town, P.S. Najibabad, district Bijnor, they started to cause torture to her because demand of Rs. 2 lakhs and motorcycle was not satisfied. Whenever she went to her brother's residence she narrated the same plight. Two daughters were born from their wedlock. On 20.11.2005 at about 1 p.m. someone informed the brother of Smt. Jahanara that Smt. Jahanara was burned by accused persons by sprinkling kerosene oil and the occurrence was seen by the witnesses Jubair and Abdul Malik. The informant went to Safdarjang hospital, New Delhi where Smt. Jahanara was admitted. Later on she died on 29.11.2005. Then section under Section 304B IPC added in the crime applicant Smt. Saima, mother-in-law and Matloob her husband. According to applicant Smt. Saima the victim sprinkled kerosene oil on herself and set herself on fire. When shrieks were heard witnesses and family members ran to the room, broke the gate then husband Matloob carried her to Najibabad hospital wherefrom she was brought to district hospital Bijnor and in the meantime Doctor Rizwan, brother of Smt. Jahanara reached there who carried her to Safdarjang hospital where her treatment went on but she expired on 29.11.2005.
5. Learned Counsel for the applicant submits that never any demand for dowry was made. The allegation of exercise of cruelty and torture is devoid of truth. When she herself set on fire by sprinkling kerosene oil on her, she was carried by the husband to community health Centre, Bijnor on 20.11.2005 at 2.00 p.m. and the doctor gave certificate that it was accidental burn and the patient was carried there by husband applicant Matloob. In medical examination superficial deep burn injury on the whole body except head and back was found and there was 80% burn. Thereafter from there she was sent to Meerut for better treatment but in the meantime first dying declaration was recorded by Naib Tahsildar, district Bijnor on 20.11.2005 at 7.15 p.m. in which she made statement that being fed-up with the cruel conduct of Jyestha Rais, Devar Jafar and others she decided to commit suicide and in the noon of 20.11.2005 at about 1.30 p.m. she sprinkled kerosene oil on herself and before it she was beaten by Jyestha Rais. In dying declaration no allegation was made against husband Matloob. Naib Tehsildar has written that she expressed her desire that action be taken against guilty persons. The Doctor had certified that she was in a position to make statement. When she was admitted in Safdarjang hospital, New Delhi on 20.11.2005 at 4.30 p.m. S.D.M. recorded her statement and the doctor of the hospital gave certificate that she was capable to make statement. This statement was made by Smt. Jahanara in question and answer form. She told her age to be 26 years and stated that she was married about six years before. She further stated that her mother-in-law Smt. Saima, father-in-law Kallu, Jyestha Rais and Devar Jafar had beaten her and had sprinkled kerosene oil on her and thereafter they set her on fire. Her mother reached there and she alongwith husband Matloob carried her to hospital and when there was no improvement in her health she was shifted to Safdarjang hospital. When question was asked as against whom action should be taken by the police, she stated that action be taken against all accused persons including her husband because all persons used to quarrel with her and used to say that she had created disturbance in their family.
6. Learned Counsel for the applicant submits that first dying declaration is wroth to be relied on because it was natural one in which Smt. Jahanara has stated that being fed-up with the conduct of her Jyestha, Devar and others she set her on fire by sprinkling kerosene oil. The learned Counsel for the complainant submits that the first dying declaration dated 20.11.2005 was recorded by Naib Tahsildar under the influence of family members of the accused. It has not been written in question and answer form. It is vague also. Emphasis has been laid that when it was asked as who caused torture to her, according to first dying declaration Jyestha Rais and Devar Jafar and others have exercised cruelty. Thus it is not clear who are other persons of the family who exercised cruelty. It is further submitted that the second dying declaration recorded at Safdarjang hospital is in question and answer form and there is specific statement about role of the each accused.
7. Learned Counsel for the complainant has placed reliance on Khushal Rao v. State of Bombay wherein it was held by the Apex court that dying declaration is to be judged in the light of surrounding circumstances. It is to be recorded by a competent Magistrate in the form of question and answer and so far as practicable in the words of maker of the declaration. If it is recorded so, it stands on a much higher footing than a declaration which depends upon oral testimony which may suffer from all the infirmity of human memory and human character. It is to be ascertained as to whether the victim had the opportunity for observation, the capacity to remember the facts and whether his or her statement remained consistent throughout, if he/she had several opportunity of making a dying declaration. It is submitted that first dying declaration has not been recorded in the form of question and answer. It is merely in the form of opinion of Naib Tahsildar, while second dying declaration recorded at Safdarjang hospital is in the form question and answer in the words of the maker.
The learned Counsel for the applicant submits that Rizwan, brother of deceased Smt. Jahanara is posted at Safdarjang hospital, New Delhi, therefore, he influenced the doctor and Magistrate and got the statement recorded in his own way.
8. Without making any observation as to whether it is a case of suicide or burn caused by the accused persons and which of the two dying declarations is worthy to be relied on, it may be observed that some points are common and consistent in both dying declaration that death of Smt. Jahanara at died take place at the residence of her husband and other accused persons including applicant Smt. Saima, mother-in-law/the death of Jahanara is unnatural within 7 years of her marriage. Whether being fed-up with the conduct of the accused persons she committed suicide by sprinkling kerosene oil on herself and setting her on fire or kerosene oil was sprinkled by accused persons and they set her on fire, in both circumstances the death of Smt. Jahanara is not natural under Section 304B IPC. If unnatural death of lady takes place within seven years of her marriage at the residence of her in-laws and husband is the accused person he has to explain as how the death did take place because if there is allegation of exercise of cruelty due to demand of dowry being not satisfied, it may be presumed that unnatural death was the result of constant exercise of cruelty made by the husband, in-laws and other family members. A lady aged about 26 years who had two children met her death in unnatural circumstances. No person has pleasure to commit suicide unless he/she looses hope of happiness in the life. No relation wants to keep his or her relation in jail unless really his or her sister or daughter has been subjected to cruelty. In this case no explanation has been given by the applicant except that Smt. Jahanara was insisting on her husband Matloob to shift residence to Saharanpur and take accommodation on rent so that they may live their life peacefully. Even this conduct shows that she was fed-up with the life at her in-laws house and it shows prima-facie the exercise of cruelty by the accused persons.
9. Neither of the two dying declaration makes complete exemption from the liability of exercise of cruelty because even though no active participation of husband is shown in exercise of cruelty but being husband it was his duty to protect her.
10. Now question is upto what extent both these applicants were active in exercise of cruelty which was the cause of unnatural death of Smt. Jahanara inside the house of the applicant.
11. In the first dying declaration recorded by the Naib Tahsildar on 20.11.2005 at Bijnor her statement shows that she had no complaint against the conduct of her husband Matloob. The second dying declaration recorded on 21.11.2005 at 4.30 a.m. shows that when she was set on fire Matloob remained silent spectator. Record shows that it was Matloob who carried Smt. Jahanara to Najibabad hospital and got her admitted and thereafter Dr. Rizwan brother of the deceased reached at Najibabad and the victim was being discharged. Matloob also gave consent by putting his signature for better medical treatment. That she should be discharged from the hospital at Najibabad (Binjor) and she be shifted to Safdarjang hospital, New Delhi. If Matloob would have intention that Smt. Jahanara should die, she would not have carried. Smt. Jahanara to the hospital nor would have easily given consent for shifting her to Safdarjang hospital, New Delhi. Besides it, if conduct of Matloob would have been cruel one, she would not have preferred to live with her husband at Saharanpur, at a place away from Bijnor where Smt. Saima was living. The affidavit filed by the applicant that Smt. Jahanara wanted to live with her husband at Saharanpur is not denied. This shows that the conduct of the husband was not such, which would have compelled Smt. Jahanara to commit suicide by burning herself or Matloob also actively participated in burning the victim. Even though husband has a greater liability for safety of the wife but considering these circumstances, it would be proper to enlarge Matloob on bail.
12. Smt. Saima has filed copy of the Ration Card to show that she lived separate from her son Matloob and deceased Smt. Jahanara. It is submitted that she carried on business in the name of "New Janta Machinery Stores, Najibabad" while the shop of the husband is in the name of "Golden Machinery Stores, Najibabad". Having different ration cards or different shops is a matter of convenience in a family for different purposes. There is specific evidence of the family members of the deceased and two witnesses who are said to have reached the spot at the time Smt. Jahanara was being taking away from the room where she suffered burn injury. Prima-facie it appears that the whole family including husband and other accused persons were not only living together but also they had concern with each other. If it would not have been so, these witnesses would have made statement under Section 161 Cr.P.C. against Smt. Saima that victim was living with her, as family members of the deceased. They would have been separate no grievance in case of living of Smt. Saima with the deceased Smt. Jahanara, A dying person will not have grievance against a person who has not caused torture to such person. In both dying declarations the allegation is against the applicant Smt. Saima. In first dying declaration it is in general term and in second dying declaration it in specific term, therefore, on the ground that Smt. Saima had no concerned with the deceased does not prima-facie appear to be correct.
13. The learned Counsel for the applicant submits that Smt. Saima is a lady and aged about 60 years, therefore, she should be enlarged on bail. It has been laid down in 1992 (29) ACC 527 Smt. Paniben v. State of Gujrat by Hon'ble Apex Court that in a case of dowry death Mother-in-law was aged about 58 years, plea on taking a lenient view was taken, it was observed that it would be a travesty of justice if sympathy is shown when such cruel act is committed, therefore, the nature of the offence is not such that on the ground of being lady Smt. Saima be enlarged on bail. Smt. Saima has main role in the family and her position has been such that husband Matloob could not actively oppose the exercise of cruelty on Smt. Jahanara.
14. Considering the role of Smt. Saima in unnatural death of Smt. Jahanara, it would not be proper to enlarge her on bail. Therefore, bail application moved by Smt. Saima is rejected.
15. Applicant Matloob is admitted to bail in the abovementioned crime on his furnishing bail bonds of two sureties and a personal bond in the like amount to the satisfaction of the C.J.M. concerned.
16. It is added that whatever observation has been made in this order is on prima-facie consideration of the papers and the learned Sessions Judge concerned will not be influenced by this observation while deciding sessions trial on merit. It is further observed that the learned Sessions Judge concerned will make endeavour to decide the session trial expeditiously, if possible within four months from the date a copy of the order is filed by the accused in the Court concerned provided the accused co-operate with expeditious disposal of the trial.