JAIN, J. - (1.) THIS appeal is directed against the judgment and order dated 8th of July 2002 passed by the Additional District & Sessions Judge (Fast Track) No. 2, Dholpur, in Sessions Case No. 300/2001, whereby he convicted and sentenced the accused appellant under Section 304-B of the Indian Penal Code (for short, `ipc'), to ten years rigorous imprisonment.
(2.) BRIEFLY stated, the facts of the case are that on 9th April 2000 PW-1 Deep Singh lodged a written report (Exhibit P-1) at Police Station Kotwali Dholpur, wherein it was alleged that his daughter Rekha was married with Bhola @ Dilip Singh about three years ago. Bhola @ Dilip Singh started harassing her daughter Rekha by saying that her father has not given dowry. He used to tell her daughter to bring dowry in cash as well as scooter. it was further alleged that his daughter was ousted from the house and she remained with him for about four months but she was taken back by Bhola @ Dilip Singh about twenty days ago and he came to know that today she has been killed. She was set at fire. On the basis of this information, a case under Section 304-B and 498-A of the IPC was registered and investigation commenced. After completion of investigation, the police filed a charge-sheet against the accused, in the Court of Chief Judicial Magistrate, Dholpur, who committed the case for trial to the Court of Sessions Judge, who, in turn, transferred it for disposal to the Court of Additional District & Sessions Judge (Fast Track) No. 2, Dholpur. The trial Court framed charge against the accused appellant under Section 302 IPC, and in alternative Section 304-B IPC. The accused appellant denied the charge and claimed to be tried. The prosecution examined ten witnesses and produced documentary evidence Exhibit P-1 to Exhibit P-11. Thereafter statement of accused was recorded under Section 313 of the code of Criminal Procedure (for short, `cr. P. C. ' ). In defence, the statement of Pancham Singh (DW-1) and Dr. Vijay Singh (DW-2) were recorded and documentary evidence Exhibit D-1 to Exhibit D-3 was filed. After hearing the arguments, the learned trial Court convicted and sentenced the accused appellant as stated above. The learned counsel for the accused appellant contended that from the prosecution evidence it is clear that financially the accused appellant was well placed, whereas the parents of the deceased were not that much comfortable financially, therefore, there was no question to demand dowry by accused from them. he further contended that brother of the deceased was residing with accused for his education and her grandmother resided with them for her medical treatment. In fact, the accused was helping them. He referred the statement of PW-1 Deep Singh, father, PW-2 Dhan Devi, mother, PW-4 Ram Khiladi, uncle, and PW-7 Anil Kumar, brother of the deceased. These witnesses stated that the marriage of accused with the deceased solemnized in a Sammellan (combined marriage programme ). These witnesses have admitted that financially they were very weak and they married Rekha in Sammellan. The contention of the learned counsel for the accused appellant is that looking to the status and family background of the parents of the deceased no one can believe that any person will make demand of dowry from them, therefore, the allegations against the accused appellant about demand of dowry are false. In support of his contention the learned counsel for the accused appellant referred the decision of the Hon'ble Supreme Court in the case Sunil Bajaj vs. State of M. P. ( (2001) 9 SCC 417 ). The learned counsel for the accused appellant further contended that when the accused came back from his office and saw his wife in burning condition, he immediately came in her rescue and while doing so he also sustained burn injuries. He referred the statement of DW-2 Dr. Vijay Singh, who examined him on 11. 4. 2000. The injury report of the accused was placed on the record as Exhibit D-3. He, therefore, contended that looking to the conduct of the accused appellant it cannot be presumed that he set Rekha at fire and he has been falsely implicated in the matter.
(3.) THE learned counsel for the accused appellant further contended that there is lack of evidence in respect of demand of dowry made by the accused from the deceased. He referred the statements of PW-1 Deep Singh, PW-2 Dhan Devi, PW-4 Ram Khiladi, PW-5 Lal Kumar and PW-7 Anil Kumar, in this connection. PW-4 Ram Khiladi stated that the amount of Rs. 20,000/- was demanded soon before the death of Rekha but before it, no demand of cash or scooter was made at any point of time. PW-7 Anil Kumar stated tat accused appellant Bhola @ Dilip Singh demanded Rs. 20,000/- and told them that he has to repay some loan. On the basis of these statements the learned counsel for the accused appellant contended that there was no demand of dowry in cash or scooter but even if the statements of prosecution witnesses are believed to be true then it was a demand of money for repayment of some loan amount. He also contended that the prosecution failed to prove that the marriage of Rekha with accused Bhola @ Dilip Singh solemnized within seven years of the date of incident. He referred the statement of PW-1 Deep Singh, father of the d, and the statement of DW-1 Pancham Singh, in this regard, who stated that the accused married with Rekha about 9 years ago of the date of incident. he also contended that it was the accused, who himself, informed the complainant party about the death of Rekha and in this regard he referred the statement of PW-4 Ram Khiladi and PW- 9 Laxman Das, the Circle Officer. He also referred the decision of the Hon'ble Supreme Court in the case of Arvind Singh vs. State of Bihar ( (2001) 6 SCC 407), wherein it was held that firstly the burden lies on the prosecution to prove the husband's guilt beyond reasonable doubt before assuming presumption against him under Section 113-B of the Evidence Act. Learned Public Prosecutor, on the other hand, contended that the learned trial Court has considered the oral and documentary evidence and rightly convicted and sentenced the accused appellant in the facts and circumstances of the present case. ;