JAIN, J. - (1.) THIS appeal, on behalf of accused-appellant Suresh Rawat S/o Ganga Ram Rawat, is directed against the judgment and order dated 18th January, 2002, passed by the Additional Sessions Judge (Fast Track), Alwar, in Sessions Case No. 104/2001 (64/2001), whereby the appellant was convicted as under:- Under Sections Sentence of Imprisonment 304-B IPc To undergo 10 years rigorous imprisonment 498-A IPc To undergo 2 years rigorous imprisonment and a fine of Rs. 1, 000/- ; in default of payment of fine$$ to further undergo 3 months additional rigorous imprisonment.
(2.) BOTH the sentences were ordered to run concurrently. The learned counsel for the accused-appellant contended that although deceased Anita died within a period of 7 years from the date of her marriage and her death was abnormal, but there is no iota of evidence that she was subjected to cruelty or harassment by the appellant soon before her death for, or in connection with, demand for dowry, and in absence of such evidence, the presumption under Section 113-B of the Evidence Act was not attracted, but the learned trial court, without considering the said aspect of the matter, convicted the accused-appellant only on the basis of presumption under Section 113-B of the Evidence Act, which is absolutely illegal and the impugned judgment passed by the trial court is liable to be set-aside. The learned counsel referred the statements of PW-1 Krishnaotar (brother), PW-2 Rajkumar (brother-inlaw), PW-3 Radheyshyam (brother-in-law), PW-4 Kumari Babita (sister), PW-5 Ramaotar (uncle), PW-6 Mukesh and PW-7 Sita Devi (mother), and contended that these prosecution witnesses, in their statements, have stated that Anita was married with Suresh Rawat in a 'sammelan' about 5 to 6 years ago; Suresh Rawat used to beat Anita; he was unemployed. On 21-4-2001 a telephonic message came from Anil that Anita sustained burn injuries. Thereafter they went and saw Anita, who had already died. He contended that although two ingredients of Section 304-B, IPC, are proved in the case, but none of the prosecution witness states that she was subjected to cruelty or assault soon before her death for, or in connection with demand for dowry, therefore, conviction of the accused- appellant under Section 304-B, IPC, is liable to be set aside. The learned counsel for the appellant, alternatively, contended that in case this Court does not agree with his submission and the appellant is not acquitted from the charge of offence under Section 304-B, IPC, then at-least, the case of the appellant for reduction of his sentence of imprisonment may be considered. It is contended that the appellant is in judicial custody since 22nd April, 2001, and he has already remained in custody for six years, therefore, looking to the entire facts and circumstances of the case including the quality of prosecution evidence, the sentence of imprisonment awarded by the trial court for 10 years rigorous imprisonment be reduced to a minimum period of sentence of 7 years rigorous imprisonment. The learned Public Prosecutor supported the impugned judgment passed by the trial court and contended that there is no merit in this appeal and the same be dismissed.
(3.) I have considered the submissions of learned counsel for both the parties and examined the impugned judgment as well as the record of the trial court. Exhibit P-1, a written-report, was lodged by PW-1 Krishnaotar, brother of deceased Anita, on 22-4-2001, wherein it was mentioned that marriage of his sister took place in the year 1996 with Suresh Rawat, who was drunkard and beat his sister. He received a telephonic message from Alwar yesterday from the shop- owner of Suresh, where Suresh was working, that at about 9'o clock, in the night, his sister has burnt badly. It was further mentioned that it appears to him that Suresh Rawat has set his sister on fire deliberately. On the basis of this information, FIR No. 29/2001 (Exhibit P-2) was registered under Section 304-B, IPC. The site-plan (Exhibit P-6) was prepared. The inquest-report was also prepared. Anita Rawat was medically examined and in the postmortem-report (Exhibit P-9), the Medical Board has opined as under:- " We the members of Medical Board are of opinion that cause of death is shock due to extensive burn as mentioned in PMR sufficient in ordinary course of nature to cause death. However, viscera are preserved, sealed and handed over to police. " As per FSL Report (Exhibit P-10), the result of examination was that - "on chemical examination, portions of viscera (1-5) from two packets marked A and B gave negative tests for metallic poisons, ethyl and methyl alcohol, cyanide, alkaloids, barbiturates, tranquillizers and insecticides. " ;