GARG, J. - (1.) THE abovenamed accused appellant has preferred this appeal against the judgment and order dated 18. 2. 1998 passed by the learned Judge, Special Court (Women Atrocities & Dowry Cases), Bhilwara in Sessions Case No. 229/97, by which he acquitted the accused appellant of the charge under Section 498a IPC, but convicted him under section 306 IPC and sentenced to undergo seven years' RI and to pay a fine of Rs. 2,000/-, in default of payment of fine, to further undergo six months' SI.
(2.) THE facts giving rise to this appeal, in short, are as follows:- On 28. 12. 1994 (from 5. 15 PM to 6. 00 PM), PW 5 Mahaveer Prasad Sharma, A. D. M. Bhilwara recorded the statement of Smt. Chandrakala (hereinafter referred to as the deceased) W/o Ramphal (accused appellant), aged 17 years, resident of 3e-19, New Housing Board, Shastri Nagar Bhilwara, in the MG Hospital, Bhilwara, in which she stated as follows:- 1. That deceased was married with Ramphal (accused appellant) before four years back and out of four years, she has remained at her parents' house for three years and she has one child. 2 That her husband used to come to house after taking liquor and thereafter, her husband used to torture and humiliate her and for the last four months, she was in her parents' house and she came on 20. 12. 1994 to her in-law's house and her husband (accused appellant) promised to her father PW 3 Ramavtar that accused appellant would keep her properly and happily. But, thereafter also, her husband (accused appellant) used to come to house after taking liquor and make quarrel, harass and humiliate her and, therefore, she wanted to die and her Jeth also abetted. 3 That her son, after her death, be handed over to her parents and her dead body be also handed over to her parents and age of her son is one year six months. 4 That when she put fire on her body, accused appellant was there, but he did not save her. On this report, police registered the case and started investigation and on the same day, deceased died at about 10. 10 PM. After death, post mortem of her dead body was got conducted on 29. 12. 1994 through Medical Board and the post mortem report is Ex. P/5, where the cause of her death opined by the Medical Board is that she died of shock which could be because of 100% burn on all parts of body. The panchayatnama of the dead body of the deceased is Ex. P/1. The site plan is Ex. P/2. The fard of seizure of stove with kerosene, clothes and slipper etc. is Ex. P/3. Thereafter, accused appellant was arrested. After usual investigation, police submitted challan against the accused appellant in the Court of Magistrate and from where the case was committed to the Court of Session and, thereafter, the case was transferred to the Special Court (Women Atrocities & Dowry Cases), Bhilwara. The learned Trial Judge on 14. 5. 1997 framed charges u/s. 498a and 306 IPC against the accused appellant. The charges were read over and explained to the accused appellant, who pleaded not guilty and claimed trial. In support of its case, the prosecution examined as many as seven witnesses and got exhibited several documents. Thereafter, statement of the accused appellant u/s. 313 Cr. P. C. was recorded, where he took the following plea:- ***
(3.) NO evidence in defence was produced. However, some documents were got exhibited by accused appellant in defence. After conclusion of trial, the learned Judge, Special Court (Women Atrocities & Dowry Cases), Bhilwara through his judgment and order dated 18. 12. 1998 acquitted the accused appellant of the charge under section 498a IPC, but convicted him under section 306 IPC and sentenced in the manner as stated above holding inter-alia:- 1. That when dying declaration of the deceased Ex. P/4 was recorded by PW 5 Mahaveer Prasad Sharma, ADM on 28. 12. 1994, deceased was in a fit state of mind to give the said statement and accordingly, he relied on dying declaration Ex. P/4. 2. That from the statement of other witnesses, the fact that accused appellant was in habit of taking liquor and thereafter, he used to beat and torture deceased, is proved. Thus, he draw the presumption that deceased committed suicide and for that, accused appellant abetted. 3. That at the time when deceased committed suicide, accused appellant was present there. 4. That the prosecution has proved its case beyond reasonable doubt against the accused appellant for the offence under section 306 IPC. Aggrieved from the said judgment and order dated 18. 2. 1998 passed by the learned Judge, Special Court (Women Atrocities & Dowry Cases), Bhilwara, the present appeal has been filed by the accused appellant. In this appeal, the following submissions have been made by the learned counsel for the accused appellant:- 1. That the prosecution has failed to establish any abetment or instigation by the accused appellant by cogent and reliable evidence and since the accused appellant was also having 40% burns in his hands, therefore, no abetment or instigation can be attributed on the part of the accused appellant. 2. That the learned trial court has erred in relying on the dying declaration Ex. P/4 as PW 5 Mahaveer Prasad Sharma, ADM did not take certificate from the doctor on duty to the effect whether she was able to given statement or not or at the time of recording alleged dying declaration, she was conscious or not. 3. That there are material contradictions in the statements of PW 2 Sundeep Kumar, PW3 Ramavtar and PW 4 Urmila and thus, from the evidence on record, the findings of conviction recorded by the learned trial Judge against the accused appellant cannot be sustained and thus, he is entitled to acquittal. Hence, it was prayed that this appeal be allowed and accused appellant be acquitted of the charge framed against him. ;