A.N.Jindal, J. - (1.) Out of five accused, namely, Vinod, Anita Kumari, Raghbir Dayal, Tarawati and Subhash Chand, two accused Vinod and Anita Kumari being juveniles were sent to Juvenile Court for trial whereas the remaining three accused were tried by the Additional Sessions Judge, Faridabad for executing dying declaration of Aruna on 22.7.1988. Consequently, the learned Additional Sessions Judge, vide judgment dated 7.2.1991, acquitted accused Subhash Chand and convicted appellants (hereinafter referred to as the `accused') under Section 304-B IPC and sentenced both of them to under go rigorous imprisonment for seven years. Aruna was bound in nuptial tie with Subhash Chand accused on 5.12.1987 and a sum of Rs.70,000/- was spent by her parents at that time. PW8 Rup Chand also paid Rs.10,000/- to Raghbir Dayal, fahterCr. in-law of deceased-Aruna on his demand on 25.5.1988. Raghbir Dayal visited the house of Rup Chand, complainant on 25.5.1988 and took the deceased to Palwal with the assurance that she would not be harrased in future. On 19.7.1988, Bimla Devi, mother of the deceased went to Palwal to see Aruna. But, she was not allowed to see her. On 21.7.1988, the accused Raghbir Dayal again visited the house of Rup Chand and raised a demand of Rs.40,000/- for construction of a room on the first floor of the house. But, both Mahesh Chand, PW7 and Rup Chand PW8 refused to oblige him,therefore, they threatened them with dire consequences. On 22.7.1988, at about 4 or 4.30 p.m., Aruna got burn injuries while cooking vegetables and was admitted in the Civil Hospital, Palwal where she remained admitted from 5.00 p.m. to 6.15 p.m. and then was referred to Jai Parkash Narain Hospital, New Delhi. She was admitted in the Burn ward at 10.00 p.m. However, she succumbed to her injuries on 23.7.1988. Rup Chand and his family members cremated her on 24.7.1988 at Delhi after post-mortem examination by Doctor George Paul. During her admission in the hospital, the deceased had made a dying declaration. PW10 Smt. Rashmi Krishnan recorded dying declaration of Aruna (Ex.PD) on 23.7.1988, the translation of which reads as under:- " I was married on December 5,1987. Since then there was a dispute in the house regarding dowry. My mother-in-law, father-in-law used to demand dowry. My husband did not quarrel with me. Earlier also my father-in-law had sent her to my parents' house for three months after quarrelling with me. A day before yesterday, my sister-in-law (Nanand) told me to prepare vegetable etc. quickly. My mother-in-law had already lowered the flame of the stove. When the vegetable was cooked, I thought that I should accelerate the flame of the stove with the help of a pin and when I went for this purpose then my clothes caught fire. I do not know as to how I caught fire. It appears to me that perhaps some person from behind had set me on fire. At that time, my sister-in-law (Nanand) and brother-in-law (Devar) were in the kitchen. I ran outside crying `Aag-Aag'. Then my husband removed my silken Sari by pulling and my mother-in-law inspite of the fact that she was asked not to do so, poured water. My husband and the neighbours brought me to the hospital. My mother-in-law used to harass me to a greater extent. My father-in-law used to say that I would not be allowed to live in peace perhaps they had got a hand in burning me. RO&AC Signature Smt.Aruna Signed Smt.Rashmi Krishnan 23.7.88' On the application of Mahesh Chand, PW7 dated 30.7.1988 Ex.PF presented before Ram Kumar, Sub Inspector, FIR (Ex.PF/1) was recorded at Police Station City Palwal against the aforesaid five accused under Section 304-B IPC. He inspected the spot and prepared the rough site plan. He also recorded statements of Maya Devi, Rup Chand, Yogesh Kumar and Smt. Bimla Devi. He apprehended the accused Raghbir Dayal, Cr.A.No.57-SB of 1991 -4- Subhash Chand and Tarawati on 31.7.1988 and on completion of investigation, challan was presented in the Court. Charges under Section 304-B IPC was framed against accused Raghbir Dayal, Subhash Chand and Tarawati whereas challan against the remaining two accused was submitted before the Juvenile Court. In order to seek conviction of the accused, the prosecution examined PW1 Doctor George Paul, Assistant professor, PW2 Doctor Joy Tuli, PW3 Doctor Sanjay, PW 4 N.K.Sharma, Collector of Stamps, PW5 Balbir Singh, Sub Inspector, PW 6 Doctor Dinesh Kumar Sharma, PW7 Mahesh Chand, PW8 Roop Chand, PW9 Ram Kumar SI and PW10 Smt.Rashmi Krishnan Under Secretary. After giving up Ram Kumar, ASI Smt. Bimla Devi, Yogesh Kumar and Smt. Maya Devi as unnnecesary, Laxmi Narain has won over by the accused and after tendering affidavit Ex.PE into evidence, the prosecution closed its case. When examined under Section 313 Cr.P.C., all the accused had denied all the incriminating circumstances appearing against them. During prosecution evidence, the accused pleaded their false implication in the case and Subhash Chand further explained as under:- " After the marriage he had always treated Smt. Aruna Kumari with love and affection and since she was Asthmatic patient, so, he got her treated from Doctor Aggarwal at Palwal; that she wanted to appear in B.A. Examination at Delhi and he personally took her to the house of her parents in March, 1988 and brought her back in May, 1988; that his father, mother, younger brother and sister all treated her with Cr.A.No.57-SB of 1991 -5- love and respect and never harassed or maltreated her; that he was employed since long as Conductor in Delhi Transport Corporation at Delhi and for this purpose, used to leave Palwal early in the morning with his father and returned late in the evening to Palwal; his father never demanded any amount from the parents or relatives of Smt. Aruna nor demanded any dowry; his wife had regular correspondence with her father; sister Saneh and they also used to write letters regularly to her and there was never any complaint from their side for the maltreatment etc; on 22.7.88 he was on medical leave and was present at his house while his father was on duty and at about 4.15 p.m. is mother had gone in the neighbourhood and his wife Smt. Aruna went to the kitchen at about 4.30 p.m. to prepare meals and got accidental burns from the stove and on her shriekes, he rushed to the kitchen and pulled her Sari and in that process his hands were burnt; on his shouting, his mother along with Rajinder and his wife Sumita rushed to his house and his mother threw a bucket of water and then they took her to Civil Hospital Palwal and was put on glucose and she remained there from 5 p.m. to 6.15 p.m.; they were advised to take her to Safdarjang Hospital, Delhi and then accordingly took her there and reached at about 7.30 p.m. but since no bed was available there so, she was taken to Lok Nayak Jai Parkash Narain Hospital, Delhi and Doctor Dinesh Kumar Sharma examined her at about 8.30 p.m. and she told him that she had Cr.A.No.57-SB of 1991 -6- got accidental burns by cooking meals; she was admitted in the Burn Ward at about 10 P.M. and was given injections and she died at 11.30 a.m. on 23.7.1988; he along with his father and mother had cremated her at Delhi on 24.7.1988 and she was never conscious till her death while she remained in Burn Department of the Lok Nayak Jai Parkash Narain Hospital, Delhi." Accused Tarawati and Raghbir Dayal also took similar pleas as set up by accused Subhash Chand. In defence, accused examined DW1 Doctor Arun Aggarwal, DW2 Anand Sarup Anand, DW3 Rajinder Kumar, DW4 Nathi Singh, DW 5 Doctor Majula Mishra, DW 6 B.Biswas, Accounts Officer and DW 7 Doctor Rajesh Gupta and closed their evidence. On scrutiny of the judgment, the trial Court convicted the accused Raghbir and Tarawati and acquitted Subhash Chand. Hence, this appeal. Having heard the rival contentions of the learned counsel for the parties, it transpires that there is no dispute that the accused Subhash Chand was married to deceased on 5.1.1987. It was a middle class family. Deceased aged 28 years was admitted in the hospital on account of burn injures on 22.7.1988 at 10 p.m. and expired on 23.7.1988 at 11.30 a.m. within 7 months of her marriage at her in laws house. Doctor George Paul, Assistant Professor conducted the autopsy on the dead body of Smt. Aruna on 24.7.1988 at 12.50 p.m. and found the following injuries on her person:- "1.Superficial dermo epidermal burns present all over the body except scalp upper parts of forehead and temple region, creases of faces especially around eyes, nose and mouth, middle front part of chest between both breast regions, public and perineal and adjacent grown regions and both soles. Cuticles pealed off at places, base showed redness at margins, blackening present in unpealed areas. Scalp hair signed at tips, eye lashes, eye brows and pubic hair singed at tips, axillary hairs singed and burnt approximate area of burns about 87 to 88 percent.
(2.) Stitched cat open drip wound 2.8 x 0.3 cm on the lower inner spect of left leg." The only fact which remains to be decided in this case is whether the deceased died on account of harassment caused by the accused on account of demand of dowry. In this regard, I will trace back to the statement of dying declaration made by Aruna before the Executive Magistrate on 23.7.1988. It is not in dispute that Aruna received 87-88 burn injuries and she was fit to make the statement and the statement was recorded by the Executive Magistrate. She had animus against the accused at the time of recording of the statement. She had clearly testified that the deceased was fit to make the statement before recording the statement. What has transpired to me to hold that it is not a case of forced suicide on account of demand of dowry and it may be a case of cruelty on account of demand of dowry. The deceased in her dying declaration has no where stated that (1) either the accused by their own act or conduct much less omission set her ablaze (2) any of the accused made mischief while throwing her to flame when she was working on the stove. She has deposed in her dying declaration that she does not know as to how she caught fire but it appears that some persons from behind set her on fire. But this fact stands contradicted from the medical evidence as according to autopsy report conducted by Doctor George Paul, the burn injuries were only on the frontal portion of the deceased. This is indicative of the fact that she caught fire accidentally and not on account of continuous harassment due to demand of dowry by the accused. As such, this cannot be termed as dowry death. However, the accused in the given circumstances of the case cannot escape liability for causing cruelty to her on account of demand of dowry. Besides the dying declaration, dated 23.7.1988 recorded in the police station, evidence led on the record also indicates that the accused used to harass the deceased on account of bringing insufficient dowry. Mahesh Chand has also reiterated about harassment given to the complainant on account of the demand of the dowry. Faced with the situation, Mr.T.S.Sangha, learned counsel for the appellants has also not challenged the evidence led by the prosecution regarding harassment caused to the deceased on account of the demand of dowry. Therefore, it would not be inappropriate to convict the accused under Section 498-A IPC even in the absence of specific charge against the accused, as the said offence is of speices to check main charge under Section 304 B IPC.
(3.) I have also heard the counsel for the accused on the quantum of the sentence. The counsel has pleaded that they being of old age have various responsibilities to perform. As the accused are old, they have already suffered lot of agony for the longevity in the trial. While giving thoughtful consideration to the aforesaid contention, though sufficient time has passed over the judgment of the conviction awarded against the accused yet the agony of the parents of the deceased also cannot be lost site and exonerating the accused would altogether amount to wiping out the penal provisions of the crime against the fair sex and it will encourage atrocities against the newly married women.;