JUDGMENT R.K. Rastogi, J.
1. The applicants, Vijai Pal Singh and Smt. Vimala Devi have applied for bail in this case crime No. 404 of 2006 under Sections 498A, 304B I.P.C and 3/4, Dowry Prohibition Act. of police station Katghar district Moradabad.
2. The prosecution case starts with a F.I.R. lodged by Satyendra Singh Yadav at police station Katghar district Moradabad at 4.05 P.M. It is stated therein that marriage of his daughter, Girish Kumari had taken place with Rakesh son of Vijai Pal Singh and Smt. Bimla Devi on 20.2.2002. Sufficient dowry was given in the marriage but the accused were demanding a Pulsar motor cycle and Rs. 50,000/- cash. Two children were also born out of this wedlock, but the accused were demanding money and committing atrocities upon her. On 2.4.2006 at about 8.30 P.M. Smt. Girish Kumari made a phone call from a P.C.O. on mobile phone of Satyendra Singh that her life was in danger and so he should reach there immediately because her husband, father-in-law and mother-in-law were doing Marpit with her. Upon receipt of this information Satyendra Singh came to Moradabad. Upon inquiries neighbours told him that the accused after burning his daughter had taken her to get her admitted in the district hospital Moradabad, but when he went to the district hospital Moradabad he came to know that she has been referred to Delhi for treatment. He tried to establish contact on phone with the accused persons but no contact could be established and then he lodged this report at the police station Katghar against the accused persons on 3.4.2006 at 4.05 P.M.
3. Smt. Girish Kumari was admitted in Maulana Azad Medical College ( Lok Nayak Hospital), New Delhi. It is alleged that her dying declaration was recorded on 3.4,2006 at 10.45 A.M. and in that dying declaration she stated that a Chirag was burning in the worship room of the house and at about 9 P.M. her younger son was playing in that room and doing mischief, so she rushed to that place to protect him but her Saree caught fire and then her husband protected her. Her father-in-law and mother-in-law, who resided on upper storey of the house also rescued her. Her husband covered her body with a blanket. She was first taken to private hospital and then to that hospital.
4. Smt. Girish Kumari died on 8.4.2006 at 11.15 A.M. and then the charge under Section 304B, I.P.C. was added.
5. The applicants have alleged that they are innocent and have been falsely implicated in this case. Their learned Counsel submitted that it is a case of accidental burn injuries as is apparent from dying declaration. It was further submitted that the applicants are father-in-law and mother-in-law of the deceased and so bail should be granted to them on the ground of their old age.
6. The learned A.G.A. has opposed the bail application. He submitted that it is a case of demand of dowry and of burning in connection with this demand. He has further submitted that the above dying declaration is completely a forged document. He made the following submission in support of this contention:
(1) According to medical examination report of Smt. Girish Kumari when she was brought to the district hospital Moradabad for her treatment, there was smell of kerosene-oil present upon her body. He submitted that if Smt. Girish Kumari caught fire from a small Deepak in the room of worship, there could not come smell of kerosene oil from her body.
(2) According to the description of burn injuries present at the time of admission of Girish Kumari in Maulana Azad Medical College ( Lok Nayak Hospital) New Delhi, that she had superficial to deep burn injuries on the face, both upper limbs 90-95%. He contended that a person whose upper limbs had 90 - 95% burn injuries could not be in a position to speak.
7. The learned Counsel for the applicant has referred to the postmortem examination report of the deceased prepared on 9.4.2006, in which it has been stated that approximate area of burn injuries was 70% only and there was no smell of kerosene oil.
8. It was submitted by the learned Counsel for the prosecution in reply that it is immaterial that on 9.4.2006 no smell of kerosene oil was found on the dead body because sufficient time had passed from the time of incident and so smell of kerosene oil would have been disappeared by that time. Moreover, it was contended that in the admission slip 90-95% burn injuries were shown upon upper limbs but it has been stated in the postmortem report that percentage of burn injuries on the entire body was 70%. He submitted that according to postmortem report there were infected superficial to deep ante mortem burning present all over the body except outer front of right thigh, front back of both legs, buttock and back of abdomen. He further submitted that the above description of burn injuries goes to show that almost upper portion of the deceased was totally burnt while lower portion was partly burnt and this fact goes to show that kerosene oil was poured upon the deceased from her head and that is why upper portion was burnt 90 to 95%. He further contended that if accidental fire incident had taken place from a Deepak kept in the worship room, the burn injuries would have been on the lower portion of legs and not on the upper portion of the body of the deceased.
9. As regards the dying declaration the learned A.G.A. contended that a person whose upper limbs have been 90-95% burnt could never be in a position to give statement. But in the present case the deceased was admitted in the hospital at Delhi for treatment on 3.4.2006 at 9.15 A.M. and soon thereafter her dying declaration was recorded at 10.45 A.M. and after recording of this so called statement she never gained senses during the period of entire treatment at the hospital and all these circumstances go to show that this dying declaration was obtained in collusion with the doctor and the Magistrate.
10. The learned Counsel for the applicant has submitted that even a lady having 90-95% burn injuries could give statement. He cited before me following rulings of the Hon'ble Supreme Court in support of his contentions:
(1) P.V. Radhakrishna v. State of Karnataka 2003 SCC (Crl.) 1679;
(2) Sree Vijaya Kumar and Anr. v. State, by Inspector of Police, Kanya Kumari 2005 SCC (Crl.) 1896;
(3) Gaffar Badshah Pathan v. State of Maharashtra 20043 SCC (Crl.) 2037;
(4) Sohan Lal v. State of Punjab 2004 SCC (Crl.) 226;
(5) Muthu Kutty v. State of Tamilnadu 2005 SCC (Crl.) 1202;
(6) Shanti and Ors. v. State of Haryana 2006 (1) SCC (Crl.) 557;
(7) Luxman v. State of Maharashtra 2002 SCC (Crl.) 1491.
11. I have carefully gone through all these rulings. In P.V. Radhakrishna v. State of Karnataka (supra) it was held in para 16 that physical state or injuries do not by themselves become determinative of mental fitness of the declarant. In Sree Vijaya Kumar v. State (Supra) the deceased having 90% burn injuries had named the accused persons and it was believed holding that she had no motive to falsely implicate them and spare the real culprits. In Gaffar Badshah Pathan v. State ( Supra ) it has been held that where the dying declaration is in favour of the accused the burden lies on the prosecution to prove that it is concocted and forged. In Sohan Lal v. State ( Supra ) it was held that where there is nothing on record to suspect bona fides of the officers recording the dying declaration, there is no reason to discard it. In Muthu Kutti v. State ( Supra ) there were 90% burn injuries, but it was held that if the officer recording the statement was satisfied about the declarant's mental condition, the dying declaration was reliable. In Shanti v. State (supra) it was held that where dying declaration is found to be absolutely coherent, cogent and inspiring confidence and there is nothing to discredit or disbelieve it, it is to be relied upon. In Luxman v. State ( supra ) it has been held that a dying declaration shall be valid even in the absence of the doctors certificate if the authority recording it was satisfied about mental condition of the declarant.
12. Let me now consider the applicability of the above rulings to the facts of the present case. It is true that a final verdict on the dying declaration can be recorded only after examining the doctor who certified the condition of the declarant and the Magistrate who recorded it. But at this stage there are the following circumstances which create doubt regarding its genuineness:
(1) Presence of smell of kerosene oil upon the body of the deceased which would not have been there if she had accidentally caught fire from a Diya in the worship room.
(2) In case of accidental fire from that small diya, the deceased would have first received burn injuries on her lower limbs and so burn injuries would have been more dense on lower limbs than on upper limbs. In the present case, bum injuries are more dense on upper limbs then on lower limbs and the presence of kerosene oil on the body leads to conclusion that she was burnt after pouring kerosene oil upon her head.
(3) The deceased had 90 - 95% burn injuries on her upper limbs including her scalp, face, eyes, neck, chest, abdomen and it appears highly improbable that having so much burn injuries on her upper vital part of the body she could give a statement just after her admission in the hospital. It is noteworthy that this dying declaration was recorded before arrival of her parents in the hospital in their absence. She remained alive for six days thereafter in the hospital but she never regained senses to speak.
13. All these circumstances prima facie cast serious doubts regarding genuineness of the dying declaration. Hence, I am of the view that no benefit can be given to the accused at this stage of bail on the basis of this dying declaration.
14. It was further submitted that the husband of the deceased had also received burn injuries while rescuing his wife. He was also medically examined. A copy of his medical examination report has been filed as Annexure No. 6 to the affidavit in support of the bail application. It goes to show that he was medically examined on 8.2.2004 and superficial to deep injuries were found on the fingers of his right and left hand. The injuries were about ten days old. It is not clear as to why he had not got himself medically examined earlier.
15. The learned Counsel for the applicants further submitted that the husband of the deceased has deposited money in the name of the deceased in Sahara India Ltd. and in the LIC policies he has made Smt. Girish Kumari as nominee and this goes to show that he had love and affection for her.
16. It was argued by the learned A.G.A. that after the death of Smt. Girish Kumari her husband was to get the entire amount of the aforesaid deposit and policy in case of death of Girish Kumari in his life time, so these documents do not have any effect upon the merits of the case.
17. The learned Counsel for the applicants further submitted that the present applicants are father-in-law and mother-in-law of the deceased and there are general allegations against them , so taking into consideration their old age, bail should be granted to them.
18. In reply the learned A.G.A. has submitted that the applicants and were residing in the same house where the deceased was residing with her husband. They committed atrocities upon her. The deceased complained to her parents regarding demand of dowry and atrocities committed upon her The witness Govind Kumar Sharma has stated that about two months ago Girish Kumari had come to the house of her father at Noorpur and she was weeping stating that her in-laws had throwin her out of their house after beating her and atrocities were being committed upon her for not bringing Rs. 50,000/- in cash and motor cycle and they had also snatched both the children from her, so the applicants should not be granted bail on the ground of being father-in-law and mother-in-law of the deceased.
19. Without expressing any opinion on the merits of the case but taking into consideration the facts and circumstances pointed out above, I am of the view that the applicants do not deserve to be bailed out.
20. The bail application is, therefore, rejected.
21. However, it is directed that the court below will try to conclude the trial of the case within six months from the date of receipt of certified copy of this order. In case the trial is not concluded within the said period for no fault of the applicants, then the applicants will be entitled to move fresh application for bail.