JAIN, J. - (1.) THE Additional District & Sessions Judge (Fast Tack), Baran, vide its judgment and order dated 6-8-2002, in Sessions Case No. 125/2001, while acquitting the accused Bhupenpal S/o Gorpal, convicted and sentenced the accused- appellant Mayadevi W/o Gorpal, as under:- Under Section Sentence 304b, IPc To undergo 10 years rigorous imprisonment and a fine of Rs. 500/-, in default of payment of fine, to further undergo three months additional rigorous imprisonment 498a, IPc To undergo one year's simple imprisonment and a fine of Rs. 500/-; in default of payment of fine, to further undergo one month's additional simple imprisonment
(2.) BOTH the sentences were ordered to run concurrently. Being aggrieved with the above judgment passed by the trial court, the accused-appellant Mayadevi challenged her conviction and sentence in S. B. Criminal Appeal No. 1112/2002 and the State Government preferred Leave to Appeal against accused Bhupenpal S/o Gorpal. The leave to appeal has not been granted so far and the learned Public Prosecutor was also heard on it. Both the cases are directed against the common judgment passed by the trial court, therefore, they are being disposed of by this common judgment. Exhibit P-10, a written-report, was lodged by PW-17 Dipankar Mandal at Police Station Bhanwargarh, wherein it was mentioned that his cousin-sister Rekha was married with Bhupenpal about one-and-half-year ago; they used to quarrel with each other for demand of dowry. It was further stated that a day before the date of the incident a quarrel took place in between the mother-in-law and daughter-in-law. On 19th of September, 2000, at about 9. 30 AM, poison was mixed in the rice and the same was given to Rekhadevi by her husband to eat. Thereafter poison was also administered to Rekha forcibly. Vishnu Sardar and Vibhuti Mandal were going to their agriculture field and when they were passing nearby the house of Rekha they heard some hue and cry. They entered the house of Rekha. She was alive and, on asking, she stated to Mukesh, Vishnu and Vibhuti about the incident. She was taken to Kelwada Hospital, where the Doctor declared her dead. Therefore, report be registered and action be taken according to law. On the basis of above written-report, F. I. R. No. 104/2000 (Exhibit P-11), was registered at Police Station Bhanwargarh, District Baran, under Section 304b, IPC. The accused Bhupenpal and Mayadevi, both, were arrested vide arrest-memo Exhibit P-12 and Exhibit P-13, respectively. The postmortem of deceased Rekha was conducted on 19-9-2000. The viscera was preserved and sent for chemical examination. Exhibit P-14 is the FSL Report dated 14-11-2000. After completion of investigation, the police filed a challan against both the accused-persons. The trial court framed charge against them for the offence under Sections 304b and 498a, IPC; the accused-persons denied the charge and claimed to be tried.
(3.) THE prosecution, in support of its case, examined 18 witnesses and Exhibited 15 documents. THE trial court recorded the statements of the accused persons under section 313, Cr. P. C. , wherein they stated that Rekha took poison at the agriculture field of her maternal-uncle Tapashrai and thereafter Tapashrai brought her dead-body to their residence. THE accused Bhupenpal stated that he was in service at Kota and was not present on the day of the incident at his residence. He came back in the evening on receiving the message of the incident. THE rice, mixed with poison, and small container, containing poison, were brought by Tapashrai to their residence. THEy were given beating by Tapashrai and they were locked. THEir door was opened by the police. THE accused, in defence, examined DW-1 Samiran and DW-2 Santosh Mandal. The trial court, after considering the prosecution evidence, on the record, recorded a finding that the presence of accused Bhupen, at the place of incident, was doubtful and there is no consistent evidence against him with regard to the offence for which he has been charged, and consequently acquitted him; so far as accused Mayadevi is concerned, the trial court recorded a finding that charges framed against her are fully proved on the basis of the prosecution evidence and consequently convicted and sentenced her, as mentioned above. The learned counsel for the accused-appellant Mayadevi contended that so far as death of Rekha within 7 years from the date of her marriage under abnormal circumstances is concerned, it is proved in the case, but there is no evidence of the prosecution to prove cruelty or harassment with Rekha by her husband or relatives of her husband soon before her death for or in connection with demand of dowry, therefore, presumption under Section 113-B of the Evidence Act cannot be raised against the accused persons, and, in absence of any consistent evidence in respect of cruelty or harassment with Rekha soon before her death for or in connection with demand of dowry, the offence under Section 304b IPC is not made out; and the learned trial court has committed an illegality in convicting the accused Mayadevi for the above offence. ;