JAIN, J. - (1.) ACCUSED-appellant Mohammad Saleem S/o Mukhtyar Ahmed has preferred this appeal under Section 374 of the Code of Criminal Procedure, challenging the judgment and order dated 16. 4. 2002 of his conviction and sentence passed by the Additional District & Sessions Judge (Fast Track) No. 2, Jaipur City, Jaipur, in Sessions Case No. 123/2001 (6/2002), whereby he was convicted and sentenced as under:- Under Section Sentence of imprisonment 304-B, IPc To undergo 7 years rigorous imprisonment and a fine of Rs. 5,000/- ; in default of payment of fine, to further undergo 6 months additional rigorous imprisonment. 498-A, IPc To undergo 3 years rigorous imprisonment and a fine of Rs. 1,000/- ; in default of payment of fine, to further undergo 2 months additional rigorous imprisonment. Both the sentences were ordered to run concurrently.
(2.) BRIEFLY stated the facts of the case are that PW-1 Safika Khatun W/o Mohammad Subedar, Resident of Lakshmipur, Police Station Bela, District Gaya (Bihar), lodged a report at Police Station Moti Dungari, Jaipur, on 28th April, 2001, alleging therein that her daughter Chando Khatun was married about two years ago to Mohammad Saleem S/o Mukhtyar Ahmed, Resident of Chaatar Ghat, Police Station Chandauli, District Gaya (Bihar), at present Resident of House No. J-38, Barkat Marg, Bhomiyonji-Ki- Chhatri, Jaipur. It was further alleged that soon after the marriage of her daughter, her husband (the appellant) Mohammad Saleem started taunting on her and demanded money threatening her of contacting second marriage with another lady, but her daughter tolerated all assaults and harassments of her husband. Her husband demanded Rs. 50,000/- from her in presence of her daughter stating that he wants to start business at Jaipur. Her daughter told that a huge amount has already been incurred in the marriage and it will be very difficult now to arrange for further money. Thereafter he brought her daughter at Jaipur. On 19. 4. 2001 when dead-body of her daughter reached the village Chaatar Ghat, they were informed about it and thereafter they immediately went there. Her daughter had already told her that Saleem would kill her and in fact now he has already killed her. Thereafter, she came at Jaipur and made an enquiry. The neighbours were telling that she fell down from staircase and sustained injuries and thereby she died but she suspects that her daughter has been killed by Saleem for and in connection with demand of dowry. On the basis of this information, the police registered FIR No. 72/2001 (Exhibit P-2) under Section 498-A and 304-B, IPC. It is relevant to mention that deceased Chando Khatun died on 17. 4. 2001 at Jaipur and the report in this regard was registered under Section 174 Cr. P. C. and a postmortem of the dead-body was also conducted and after completion of other formalities the deadbody was delivered, which was taken to village Chaatar Ghat (Bihar ). The place of occurrence was also visited by Shri V. N. Mathur, the Assistant Director, Serology Division, Police Forensic Science Laboratory, Rajasthan, Jaipur, along with his associates and photographs were taken and a report of scene of crime (Exhibit P-3) was prepared. After completion of investigation, the police filed a charge-sheet against accused. The trial court framed charge against the appellant under Section 498- A and 304-B, IPC, which were denied and the trial was claimed. The trial court, after considering the evidence of both the parties on the record and upon hearing their submissions, convicted and sentenced the accused appellants, as mentioned above. The learned counsel Shri S. S. Choudhary, appearing for the appellant, contended that the deceased fell down from the staircase in the house and sustained injuries and and on account thereof she died and a report in this regard was lodged and on an enquiry made under Section 174, Cr. P. C. , no one suspected and no complaint was made to the Sub Divisional Magistrate or the police about alleged dowry death of the deceased, but later-on PW-1 came at Jaipur and only after making a contact with the Advocate, the report Exhibit P-1 was lodged on 28. 4. 2001 with a delay of 11 days, which has not been explained satisfactorily also. He further contended that, in fact, it was an accidental death and the appellant is innocent. There is no prosecution evidence to connect the accused with the crime. The prosecution witnesses do not say that she was inflicted any injury by accused or that accused murdered her.
(3.) IT is further contended that there was no demand of dowry and the trial court has wrongly drawn a presumption under Section 113-B of the Indian Evidence Act. Alternatively, it is contended that as per the contents of Exhibit P-1 itself it is clear that the so-called demand of Rs. 50,000/- was for starting business at Jaipur and the said fact is also proved from the statement of PW- 1 Smt. Safika Khatun and PW-2 Moinuddin. Therefore, even if any demand was made by the appellant for rupees fifty thousand for starting business then the said demand cannot be termed as 'demand of dowry' in connection with marriage and the provisions of Section 304-B, IPC, are not attracted; in these circumstances no presumption could have been drawn by the trial court under Section 113-B of the Indian Evidence Act. It is further contended that there was no charge against the appellant under Section 302, IPC, as not a single witness is there to prove that the accused killed Smt. Chando Khatun. He, therefore, contended that the trial court has committed an illegality in convicting and sentencing the accused appellant and thus the impugned judgment passed by the trial court is liable to be set-aside, and the appellant is liable to be acquitted. The learned Public Prosecutor supported the judgment of the trial court and contended that there is overwhelming prosecution evidence to prove the charge against the accused-appellant. PW-1 Smt. Safika Khatun, PW-2 Moinuddin and other prosecution witnesses have specifically stated that soon after marriage of deceased, she was subjected to cruelty or harassment by the appellant for, or in connection with, demand of dowry. There was a specific demand of Rs. 50,000/- by the appellant which was not fulfilled and due to it the deceased was killed by him, therefore, it was contended that there is no merit in any of the contentions of the learned counsel for the appellant and the appeal is liable to be dismissed. ;