JAIN, J. - (1.) THE Additional Sessions Judge (Fast Track) No. 2, Jaipur City, Jaipur, vide its judgment dated 5. 2. 2002 in Sessions Case No. 5/2002 (56/2001), convicted and sentenced, both, accused-appellants Naveen Kumar and Smt. Durga Devi, under Section 304b of the Indian Penal Code (for short, `ipc') to seven years rigorous imprisonment and a fine of Rs. 1000/-, in default of payment of fine, to further undergo three months' rigorous imprisonment; and under Section 498a IPC to three years rigorous imprisonment and a fine of Rs. 1000/-, in default of payment of fine, to further undergo three months' rigorous imprisonment. Being aggrieved with the same, the accused-appellants have preferred this appeal before this Court.
(2.) BRIEFLY stated the facts relevant for disposal of this appeal are that PW-6 Govind Ram, the father of deceased Maya, lodged a typed report (Exhibit P-5), to the Station House Officer, Police Station, Brahmpuri, Jaipur, wherein it was alleged that in the marriage of his daughter Maya, which was solemnized on 21. 7. 1999 with Naveen Kumar son of Jai Kishan, he gave sufficient dowry as per his capacity but her in-laws started harassing his daughter for not bringing sufficient dowry. He further stated that as and when his daughter came to her maternal home, she always complained of her in-laws about demand of scooter and cash of Rs. 50,000/-; the members of her in-law's family used to beat her. It was further alleged that about four months ago the members of her in-law's family told her that she should bring scooter and cash of Rs. 50,000/- otherwise she need not come to their house. On 24. 1. 2001 he received a telephonic message from Ram Prasad, the uncle-in- law, of Maya, at about 5. 00 P. M. that Maya has been admitted in hospital and she is in serious condition. Thereafter they reached at 9. 00 P. M. in S. M. S. Hospital and saw that she had burnt badly. On asking, she stated that her mother-in-law and husband set her on fire by pouring kerosene oil on her body, therefore, in the written report he prayed that necessary action may be taken in the matter. The police registered F. I. R. No. 33/2001 under Section 498a and 307 IPC. During investigation of the case, the statement of Maya (Exhibit P-17) was recorded by PW-10 Shri Ajay Kumar Sharma, Additional Civil Judge (Junior Division) and Judicial Magistrate, First Class, No. 9, Jaipur City, Jaipur. She succumbed to the injuries and her postmortem was conducted. As per postmortem report (Exhibit P-15) the deceased sustained 60% burn injury. After completion of investigation the police submitted a charge- sheet against Naveen Kumar, the husband, and Smt. Durga Devi, the mother-in-law of the deceased. The learned Trial Court framed charge against the accused- appellants under Sections 498a and 304b and, in alternative, under Section 302 IPC. The accused-appellants denied the charge and claimed to be tried. In support of the case, the prosecution examined 11 witnesses and produced documentary evidence Exhibit P-1 to Exhibit P-22. The accused persons, in their statements under Section 313 of the Code of Criminal Procedure (for short, `cr. P. C. ') contended that they have falsely been implicated in the matter. After hearing both the parties, the learned Trial Court convicted and sentenced the accused persons, as mentioned above. The learned counsel for the accused-appellants contended that death of Maya was accidental death and not homicidal. Maya died as her `saari' caught fire while she was preparing tea. He contended that there was no evidence of demand for dowry in the present case as well as cruelty and harassment or ill-treatment with deceased Maya by her in-laws. He referred the statements of PW-6 Govind Ram, the father, PW-7 Roop Narain, the uncle, PW-8 Shanti Devi, the mother, PW-9 Prem Chand, the brother, and PW-1 Laxmi Narain, the brother-in-law of the deceased, who all were declared hostile, except PW-7 Roop Narain. He contended that PW-7 Roop Narain has not supported the prosecution story and he was not declared hostile, therefore, his statement is binding on the prosecution. On the basis of the evidence of the prosecution, he contended that there is no iota of evidence about demand for dowry or cruelty and harassment with deceased and, therefore, the basic ingredients to prove the offence under Section 304b IPC are missing in the present case and the learned Trial Court has wrongly convicted the accused-appellants. He further contended that the learned Trial Court has convicted the accused persons only on the basis of dying-declaration of deceased (Exhibit P- 17), recorded by PW-10 Ajay Kumar Sharma, Judicial Magistrate, whereas, as per the contention of the learned counsel for the accused-appellants, the statement of deceased Maya recorded by the Investigating Officer has not been placed on the record for the reasons best known to the prosecution. He referred the statement of PW-11 Ramesh Chand Sharma, the Investigating Officer, who admitted that he recorded the statement of deceased but the same has not been placed on the record, meaning thereby the prosecution deliberately withheld the another dying- declaration of the deceased and, therefore, a presumption be drawn against the prosecution that, had the said dying- declaration been produced on the record, it would have been read against the prosecution. He also contended that there was third dying-declaration in the present case as when the deceased was admitted in the hospital then she narrated the story to her father, mother and uncle. The parents of the deceased have been declared hostile and PW-7 Roop Narain, the uncle, has not been declared hostile and he stated in the court that he asked Maya as to how she received burn injuries then she told that her `saari' caught fire while preparing tea. He contended that there is oral dying-declaration of the deceased which is clear from the statement of PW-7 Roop Narain but the learned Trial Court has not considered the effect of non-filing of dying-declaration recorded by PW-11 Ramesh Chand and oral dying-declaration, which is clear from the statement of PW-7 Roop Narain. He, therefore, contended that the learned Trial Court converted the accidental death of Maya into homicidal death and in this view of the matter the accused-appellants are entitled to be acquitted.
(3.) THE learned Public Prosecutor, on the other hand, contended that Maya was married with accused Naveen on 21. 7. 1999 and she died within one-and-half year. He further contended that it was not a natural death of Maya. He also read the statement of PW-2 Prahlad to show the conduct of the accused-appellants that they did not come in her rescue when her `saari' caught fire or she was set on fire. He further contended that the learned Trial Court has rightly believed the dying-declaration (Exhibit P-17), which has been proved by the PW-10 Ajay Kumar Sharma, the Judicial Magistrate. He contended that there is no reason to disbelieve the testimony of PW-10 Ajay Kumar Sharma in the facts and circumstances of the case and in these circumstances even if the parents and relatives of the deceased have been turned hostile during trial then still looking to the heinous crime relating society, the conviction of the accused persons recorded should be upheld. I have considered the rival submissions and minutely scanned the record and the impugned judgment of the Trial Court. Section 304-B IPC relates to dowry death wherein it is prescribed that where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death. Section 304-B IPC makes it clear that to connect an accused for the above offence it must be established in the case that (1) the death of a woman caused by any burns or bodily injury or in such circumstances which are not normal, (2) such death occurs within seven years from the date of her marriage, (3) that the victim was subjected to cruelty or harassment by her husband or any relative of her husband, (4) such cruelty of her husband should be for or in connection with demand for dowry, and (5) it is established that such cruelty and harassment was made soon before her death. ;