Deo Narayan Thanvi, J. - (1.) BY the instant appeal, the accused appellants have challenged the legality of the conviction and sentences recorded against them for the offences under Sections 302 and 498A IPC by the learned Addl. Sessions Judge, Sangaria, District Hanumangarh, vide his judgment dated 23.7.03 delivered in Sessions Case No. 6/2002. For the offence Under Section 302 IPC, all the three accused appellants were sentenced to undergo life imprisonment alongwith a fine of Rs. 1000/ - each and in default, to further undergo six months' imprisonment, whereas under Section 498A IPC, they were sentenced to three years' S.I. alongwith a fine of Rs. 1000/ - each and in default, to further undergo S.I. for two months. Both the substantive sentences were ordered to run concurrently.
(2.) THE prosecution story in brief is that on 19.11.2001 at 5.15 PM, Dr. Sushila Choudhary, S.M.O., Govt. Hospital, Sangaria informed to Mahendra Dutt, Sub Inspector; Police Station, Sangaria that one lady Smt. Kamlesh w/o Subhash (accused), who consumed spray, was admitted in the hospital, therefore necessary action should be taken. Upon this, he went at the hospital and recorded the statement of Smt. Kamlesh in which she stated that she married three years back with Subhash son of Sri Ram. She was harassed by her husband and in -law for dowry and they demanded Rs. 50,000/ -. Her husband caught hold of her mouth and mother -in -law Bhagwati, father -in -law Sri Ram and sister -in -law Manju forcibly administered spray and, thereafter, they took her to the hospital in a private jeep. Upon this statement, a case under Sections 498A and 307 IPC was registered. The statement of Smt. Kamlesh was also recorded by the magistrate at the hospital itself. On the next day, Smt. Kamlesh died. The cause of death as the post mortem report was poison. The doctor opined that the nature of poison will be given after chemical examination report. Thereafter, the police investigated the case and filed chargesheet. After hearing the argument son charge, the learned trial Judge framed charges against the accused Under Sections 498A and 304B IPC and in alternative Under Sections 302 and 302/34 IPC, to which they pleaded not guilty. The prosecution examined 16 witnesses. The statements of the accused were recorded Under Section 313 Cr.P.C. They produced 4 witnesses in their defence. After hearing the arguments, the learned trial Judge convicted the accused appellants as above. During the pendency of appeal, accused appellant Bhagwati died and, therefore, the proceedings against her stood abated. With regard to the remaining two accused appellants viz. Subhash and Sri Ram, while questioning the legality of the order of conviction recorded by the learned trial Judge, it has bee*n submitted by the learned Counsel for the accused appellants that conviction is based on two dying declarations, which have been recorded at the time when the patient was not in fit condition to give the statement and also it is improved version of the deceased Kamlesh, when her parents came at the hospital. Had spray been administered by the accused appellants, she would have narrated it to the doctor, who met him earlier in the way or on reaching at the hospital to Dr. Sushila Choudhary. According to the learned Counsel, except the omnibus statements, there is nothing on record that any demand was made by the accused for dowry and on the contrary, when the deceased took the spray, she was immediately taken to the hospital by the accused appellants. In such a situation, it cannot be said to be a case of either dowry death or of culpable homicide amounting to murder punishable Under Section 302 IPC. In support of his contention, he has placed reliance on some citation, which will be referred later on.
(3.) PER contra, learned Public Prosecutor has supported, the judgment of the learned trial Court.;