V.S.DAVE,J. - (1.) BRIEF facts giving rise to this appeal are that a First Information Report Ex. P. 3 was lodged at police station Kotwali, Alwar on llth August, 1989 by one Jivatram, PW 4, at 12.30 p.m. wherein it was alleged that be was staying in Jaipur, his sister Smt. Gopi was married six years before with Lila Ram (accused) son of Vishan Dass of Kherthal. Ever since after the marriage Lila Ram, his mother, father, brother Lalchand, cousin Sattu and his sister all used to harass her for not bringing dowry and used to pass sarcastic remarks. They also used to treat her with physical cruelty. Fifteen months before Gopi and her husband Lila Ram both came to Jaipur and settled down there. There also he used to beat Gopi and asked her to bring money from his place. Four months before Lila Ram alongwith his cousin Sattu overnight shifted his goods and children to Kherthal leaving behind Gopi. After the pursuation of the relations a couple of months before Gopi was dropped at Lilaram's place at Kherthal. On 10th August, 1989 at 2.00 in the noon he received a message by Wireless that Gopi is admitted in Alwar hospital with burns, hearing which he rushed with his relations. At 6.25 p.m there he learnt that sister had died at 3.30. She has been burnt to death by her in -laws. On receipt of this report at 12.30 a.m. at police station Kotwali, Alwar a case was registered for offences under Sections 498A 'and 304B IPC and investigation started. It is pertinent to mention here that Incharge police station Kotwali, Alwar was informed that Smt. Kanta, Hindu, famale, 40 years, wife of Lilawati (sic) (Lila Ram) resident of Kherthal who was admitted as a case of extensive burn had died at 3.30 p.m. This information was given by PW I, Dr. Raj Kumar Mishra the In -charge of police station Kotwali, Alwar who appeared in the hospital and prepared an inquest report under Section 174 Cr. P.C. He was informed by one Gangaram that Vishnu Sindhi informed that his daughter -in -law got burns and so was admitted to the hospital. Other document had also been prepared showing .the condition of the deceased etc. Postmortem of the dead body was got conducted on the same day and rest of the investigation was completed after the case was registered, as mentioned aforesaid on the report by Jivatram. It would further be pertient to mention here that one Ramesh chand had informed police station, Kherthal about burning on which police -wanted to record the statement of the deceased, but the Doctor informed at 12 45 p.m. (hat she was not in a position to give the statement and she should be removed to Alwar. Police was informed .and the Sub Divisional Officer also reached the spot for doing inquiry as required by law but she bad expired; therefore, the information was sent to her brother by wireless on which when became and lodged the F.I R. During investigation when the site -plan was prepared various goods were recovered such as kerosene oil cane. Stove, cane containing 5 It. of kerosene oil, match -box and another things. After completion of investigation a charge -sheet was submitted in the Court of Addl. Munsiff and Judicial Magistrate, Kishangarhbas who committed the accused to the Court of Addl. Sessions Judge, Kishangarhbas for trial.
(2.) IT may be pertinent to mention here that charge -sheet was submitted against six persons, namely, Lila Ram, Vishan Das, Bhagwati, Indra, Satu and Lalchand. All the accused persons were read over the charges for offence under Sections 498A and 304B IPC to which they pleaded not guilty. The prosecution examined 16 witnesses in support of its case. Accused staled that marriage had taken place more than seven years before. They denied the allegations of beating and did not offer any explanation. No evidence was led in defence. Learned Addl. Sessions Judge acquitted five accused persons but convicted and sentenced the accused -appellant as indicated above, aggrieved by which this appeal has been preferred. It is submitted by Shri Mathur, learned counsel for the appellant, that there is no evidence to connect the accused with the crime. His submission is that there is no positive evidence of marriage of the deceased having taken place with the accused within a period of seven year from the date of death so as to draws presumption under Section 113B of the Indian Evidence Act and presuming it to be a dowry death. It is submitted. that there is not an iota of evidence to suggest that the accused -appellant had demanded any dowry and for that purpose subjected the deceased for harassment or treated her with cruelty soon before the death. It is submitted that Jivatram has admitted in his cross examination that whenever she used to come to his place she never used to complain against her in -laws. He admitted that when she came from Kherthal the ornaments remained with him for which the letters were received. It has also been admitted that Lilaram's family was not a joint family and the charge of subjecting her with cruelty has already been found false, as a result of which all other accused persons in this case have been acquitted. It is submitted that this was not a case of bifurcating the offence in as much as the offence against all the six accused was identical and the witnesses have been disbelieved qua five of the accused persons, the sixth one has also been released on bail, it is contended that the prosecution examined PW 4 Jivatram, PW 5 Ishwari Devi, PW 6 Aasha, PW 8 Lakshman Das, PW 9 Ramesh Kumar and PW 10 Murlidhar. None of these witnesses could give consistent evidence in as much as they have contradicted on all material aspects of the case and otherwise their testimony is not worthy of reliance because they all are close relatives and are highly interested in the deceased. It is then contended that the learned trial court has placed reliance on some certain documents which have not been legally proved. Prosecution had moved an application under Section 311 Cr. P.C. for examining certain witnesses but the same has not been produced despite the fact that the learned trial court placed reliance on those documents. It is then submitted that in this case there is no evidence worth the name that the deceased was treated with cruelty soon before her death. It is submitted that before holding the accused guilty under Section 304B IPC and drawing presumption as to dowry death, under Section 113B of the Evidence Act it is -essential to establish two things that the death has been caused firstly - (a) by any burns of bodily injury, (b) occurs otherwise than in normal circumstances, (c) within seven years of her marriage and, secondly, she was subjected to cruelty or harassment by her husband or any relative of her husband soon before her death (underlining is mine) and therefore, these two ingredients not having been satisfied, these two ingredients not having been satisfied, conviction under Section 304B IPC is. bad in law. He placed reliance on a decision reported in Gurditta Singh v. Stale of Rajasthan, 1 (1992) CCR 471.
(3.) ON behalf of the State it is contended that in this case there is overwhelming evidence about the demand of dowry and the conduct of the accused has been such that he has been continuously treating the deceased with cruelty. It is a case where the husband and several vices and for fulfilling his needs regarding nefarious activity he regularly pressed for money from his in -laws. It is submitted that there is documentary evidence besides the oral evidencc to substantiate the prosecution case and the trial court has not committed any error in convicting the accused -appellant. It is submitted that the sentence imposed is also not excessive so as to call for in this case.;