Uma Nath Singh, J. - (1.) THIS application for leave to appeal arises out a judgment dated 19.12.2006 passed by learned Additional Sessions Judge, Jhajjar, in Sessions Trial No. 11 of 11.2.2005 (Sessions Case No. 3 of 2005), recording acquittal of the accused in respect of offences of bride burning and cruelty punishable under Sections 498 -A and 304 -B IPC.
(2.) THE prosecution case is based on an application (Ex.P1) dated 22.10.2004 made by one Ajit Kumar, brother of deceased Kiran, stating therein that the deceased was married to accused Anil son of Tulsi Ram, resident of Chaudhriyan Mohalla, Diamond Chowk, Jhajjar, on 13.4.2003. The deceased was turned out of her matrimonial home on account of demand of dowry earlier also. Just two months prior to the occurrence, she had been forced to leave the matrimonial home on that count. On 21.10.2004, accused Anil along with his brother -in -law (sister's husband), Ashok Batra, came to the parental house of the deceased and asked her parents etc. to send her back to her matrimonial home, which was refused. There was also an altercation for that. However, on an assurance, the deceased was again sent back to the matrimonial home. A day thereafter on 22.10.2004, at about 9.00 AM, the complainant received a telephonic message from a neighbourer of the deceased that she had been burnt. He also came to know that she had been taken to the PGIMS, Rohtak for treatment. When the complainant and other members of family reached the hospital, the deceased was conscious and was talking. She told the complainant that she was set ablaze by her husband Anil, brother -in -law Ashok Kumar, and the elder brother -in -law (jeth) for demand of dowry. Thereafter, she became unconscious. According to the complainant, the ladies of the house were also involved in the incident. On his application (Ex.P1), an endorsement (Ex.P1/A) was made and it was sent to the Police Station through Constable Rajesh Kumar for registration of the case. A fonnal FIR No. 356 dated 22.10.2004 was registered under Sections 498 -A and 307 read with Section 34 IPC. During the investigations, the statements of witnesses were recorded. On 23.10.2004, a V.T. Message was received by the Police Station, Jhajjar, that the deceased succumbed to the burn injuries. Thereafter the offence of Section 304 -B IPC was added in the FIR. A copy of the FIR was sent to the PGIMS, Rohtak. ASI Bijender Singh conducted the inquest of dead body, whereas further investigation was done by SI Rajender Singh. SI Rajender Singh visited the spot and on his directions, photographs of the scene of occurrence were also taken. He drew a correct site plan and seized a half burnt salwar, jumpher, a plastic container and match box which were lifted from the scene of occurrence. They were made into a parcel and taken in possession vide the memo (Ex.Pl7). The case property was finally deposited with the Moharrir Head Constable and the statements of witnesses were also recorded. The postmortem of the dead body was conducted on 23.10.2004. On 24.10.2004, the I.O. again visited the spot and arrested accused Anil and Ashok Kumar who suffered disclosure statements (Ex.P22 and Ex.P23). The police sought their remand. Anil made a further disclosure statement (Ex.P24) and got recovered some dowry articles on 25.10.2004, which were taken into possession vide recovery memo (Ex.P25). Statements of other witnesses were also recorded. A challan was laid after completion of the investigation against accused Anil and Ashok Kumar and the case was committed to the Court of Sessions. Accused Anil and Ashok Kumar were charge -sheeted under Sections 498 -A and 304 read with Section 34 IPC and the trial proceeded. During the course of trial, after 7 witnesses had been examined, an application under Section 319 Cr.P.C. was moved on 16.3.2005. Learned trial Court vide the order dated 2.6.2005, thus summoned accused Neelam wife of Gulshan and accused Gulshan, for the same offence and they were put on trial on the same charges. All the accused pleaded not guilty and claimed trial. The prosecution examined as many as 15 witnesses, namely, Ajit Kumar (PW 1), HC Vijay kumar (PW 2), HC Surender Kumar (PW 3), Dr. S.P. Chugh (PW 4), Constable Jai Chand (PW 5), HC Vikram Singh (PW 6), Constable Ram Kumar (PW 7), ASI Mahipal (PW8), Dr. Ravi Kanta (PW9), Dr. Asha Sehrawat (PW 10), Dr. Ashish Jain (.PW 11), SI/SHO Rajender Singh (PW 12), EHC Hem Chander (PW 13), Submit Kumar (PW 14), and ASI Bijender Singh (PW 15). However, some of the witnesses were given up as won over. The prosecution also placed reliance on the application (Ex.P1) given by the complainant and the endorsement (Ex.P1/A) thereon for recording -an FIR. Affidavit of one Vijay Singh, ASI, was also taken as evidence on record vide Ex.P2. Photographs (Ex.P3 to Ex.P5) and their negatives (Ex.P6 to Ex.P8), and the dying declaration (Ex.P9) were placed on record. The prosecution also pressed into service other materials like scaled site plan (Ex.P10), affidavit of Constable Ram Kumar (Ex.P11), FIR (Ex.P12), postmortem report (Ex.P13), application for postmortem (Ex.P13/A), inquest report (Ex.P13/B), MLR (Ex.P14), medical qua (Ex.P14/A), FSL report (Ex.P15), site plan (Ex.P16), and recovery Memos (Ex.P17 to Ex.P21) of half burnt clothes, plastic container, match box etc. etc. Disclosure statement (Ex.P22) suffered by accused Ashok Kumar, and that of accused Anil being (Ex.P23) and (Ex.P24), and recovery pursuant thereto vide recovery memo (Ex.P25), were also placed towards evidence by the prosecution. In their statements under Section 313 Cr.P.C., the accused denied all the allegations and pleaded innocent. They examined one defence witness Tek Chand Sahrma and also placed reliance on application (Ex.D1.). opinion of the doctor (Ex.D1/A), and affidavits of Smt. Shano Devi (Chanderkala (Ex.D2) and of one Ajit Kumar (Ex.D3) and then closed the defence evidence. During the course of trial, learned Additional Sessions Judge came across a dying declaration and noticed certain serious defects therein. Besides. the complainant (PW1) and his brother Satish Kumar (PW4) turned hostile. The trial Court did not find any cogent material to accept the prosecution case, and hence, by the impugned judgment, recorded the order of acquittal.
(3.) HEARD learned counsel for the parties and perused the Crl. Misc. and the grounds of appeal as also the documents submitted during the course of hearing.;