(1.) In this appeal the appellant has assailed the judgment and order of the learned Sessions Judge, Kangra at Dharamshala dated 5-5-1998/14-5-1998 in Sessions Trial No. 1 of 1998 convicting him of the offence punishable under Sections 304-B and 498-A of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for seven years with a fine of Rs. 2,000/- under Section 304-B of the Indian Penal Code and to suffer rigorous imprisonment for one year under Section 498-A, I.P.C. and to pay fine of Rs. 500/-. In default of payment of fine, the appellant shall further undergo rigorous imprisonment for two months under both the counts. Both the sentences were ordered to run concurrently. The appellant Budhi Singh is the husband of deceased Smt. Veena Devi.

(2.) The deceased Veena Devi had married the appellant some time in 1992. Her parents are resident of Khadiar, Tehsil Jawali, District Kangra. Budhi Singh appellant is the resident of Kairan, Tehsil Nurpur, District Kangra. The incident giving rise to the criminal case took place on 19-7-1997 at about evening time when Veena Devi is alleged to have committed suicide by setting fire to herself in her husband's house, Kairan.

(3.) The gist of the prosecution case is that Veena Devi was brought to the Civil Hospital, Nurpur by her husband Budhi Singh on 19-7-1997 at about 10.40 p.m. after she had sustained extensive burn injuries. She succumbed to her burn injuries on the same night. Dr. M. K. Sexena (P.W. 1) informed the police telephonically, on which Inspector Jagan Nath, Station House Officer, Police Station, Nurpur rushed to the hospital. An application (Ext. PW-13/B) was moved by the Investigating Officer at about 11.15 p.m. seeking the opinion of the doctor whether Veena Devi was fit to give her statement, on which the doctor made an endorsement that

Veena Devi was fit to make the statement. The Investigating Officer recorded the statement of Veena Devi marked Ext. PW-8/A, which was attested by the doctor at point Ext. PW-18/D. Her statement was sent to Police station at 11.40 p.m. for registration of the case on the basis of which F.I.R. Ext. PW-8/B came to be registered at Police Station, Nurpur. In her statement Veena Devi disclosed that she was being harassed and tortured by her husband for not bringing sufficient dowry. He was demanding coloured Television, Cooler and Godrej Almirah and so she poured kerosene oil on herself and set herself on fire. The Sub-Divisional Magistrate, Nurpur was also informed by the Station House Officer who recorded the dying declaration statement Ext. 6/C of Veena Devi. In that dying declaration Veena Devi disclosed that due to the demand of dowry by her husband she poured kerosene oil on herself and thereafter set herself on fire.

(4.) During the course of the investigation, the police examined the witnesses, prepared site plan Ext. PW-13/B took into possession articles found lying scattered, namely, cany (Ext. P-1), burn clothes (Ext. P-3), bangles (Ext. P-4) and match box (Ext. P-5) etc. vide memo Ext. PW-7/A from the spot. On completion of the investigation and receipt of chemical examiner report Ext.PW-13/D, charge-sheet was submitted under Sections noted above against the appellant.

(5.) The appellant denied the charges levelled against him and claimed to be tried.

(6.) To establish the charges against the appellant the prosecution examined 13 witnesses of whom P.W. 1 was Dr. M. K. Sexena who medically examined Veena Devi, P.W. 2 Dr. Virender Gupta conducted autopsy on the dead body of Veena Devi, P.W. 3 Ami Chand was the father of Veena Devi, P.W. 4 Smt. Uttama Devi was the mother of Veena Devi, P.W. 5 Smt. Reeta Devi was sister-in-law of Veena Devi. P.W. 6 Shri P. D. Chaudhary was the Sub-Divisional Magistrate, Nurpur who recorded the alleged dying declaration statement (Ext. PW-6/C) and P.W. 7 Basheshwar Singh was the recovery witness of the articles seized by the Investigating Officer at the spot. P.W. 8 constable Mangal Singh, P.W. 9 constable Bishan Dass, P.W. 10 constable Joginder Singh, P.W. 11 ASI, Raghubir Singh who recorded F.I.R. Ext. PW-8/B on the basis of Rukka Ext. PW-8/A, P.W. 12 S.I. Vinod Kumar partly investigated the case and prepared inquest report Ext. PW-12/A and P.W. 13 Jagan Nath, Inspector who conducted and completed the investigation are all police officials. The prosecution also filed medico-legal certificate (Ext. PW-1/A), copy of application moved by the Station House Officer to the doctor (Ext. PW-1/B) and post-mortem report Ext. PW-2/A. The first dying declaration of Veena Devi Ext. PW-8/A, F.I.R. (Ext. PW-8/B, Rukka (Ext. PW-13/A), site map (Ext. PW-13/B and chemical examiner report (Ext. PW-13/D).

(7.) The appellant in his statement recorded under Section 313 of the Code of Criminal Procedure has admitted that on 19-7-1997 Veena Devi was taken by him to hospital where she was medically examined by Dr. M. K. Sexena who noticed 96% to 98% burn injuries on her body. He stated that Station House Officer came in the hospital and moved an application and Veena Devi made a statement in the presence of Nurse of the hospital that she had poured kerosene oil on herself and had set her body on fire and thereafter she became unconscious. He said that the Sub-Divisional Magistrate did not come in his presence in the hospital. He denied that Veena Devi made a statement Ext. PW-8/A to the Station House Officer and then second statement Ext. PW-6/C to the Sub-Divisional Magistrate and that at the time of making these statements Veena Devi was in her senses. However, he said that Veena Devi had made the statement before arrival of the Station House Officer to the Nurse in the hospital. His defence was that his wife used to help his sister-in-law Urmila, financially and since he himself was not well to do and could not afford financially to help Urmila so he used to tell his wife not to help her sister-in-law financially on which she used to remain indifferent and annoyed. He stated that his wife was of stubborn nature and so she committed suicide. He denied the prosecution case that he used to demand dowry either from her or her father. He further stated that this case had been planted against him by the Police as there was earlier similar case in the Illaqa and the Police wanted to avoid further confrontation with the public. He pleaded that due to enmity and the strained relations after the death of his wife, his parents in-law had deposed against him. He pleaded that

he was innocent. No defence witness has been examined by the appellant.

(8.) Assessing the evidence on record, the learned Sessions Judge held, inter alia, that Veena Devi died within seven years after her marriage by committing suicide due to harassment and torture by the appellant. Relying upon the two above-noticed dying declarations alleged to have been made by Veena Devi to the Police and the Sub-Divisional Magistrate, the learned trial Judge held that the prosecution has been able to bring home the charges under Secs. 304-B and 498-A, IPC against the appellant. Accordingly, the trial Judge convicted the appellant under the said sections and sentenced him in the manner noted earlier.

(9.) Feeling aggrieved, the appellant has filed the present appeal assailing the correctness and validity of the judgment and order of the trial Judge.

(10.) I have heard Mr. Ashutosh Burnathoki, learned Counsel for the appellant and Mr. J. K. Verma, learned Asstt. Advocate General for the State. Before assessing the evidence in the case and dealing with the rival submissions of the learned counsel on either side, it will be convenient to notice the relevant statutory provisions and discuss the legal position arising out of the legislative changes introduced in the Penal Code to combat the menace of dowry deaths. Section 304-B which deals with the offence of dowry death provides, inter alia, that where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death" and such husband or relative shall be deemed to have caused her death. On a bare reading of the section it is manifest that the ingredients to be established are : (i) that the death of the woman was caused by any burns or bodily injury or occurred otherwise than under normal circumstances within seven years of her marriage; and (ii) that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry.

(11.) Section 498-A provides, inter alia, that whoever being the husband or the relative of the husband of a woman, subjects such woman to cruelty, shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Under the Explanation to the section 'cruelty' is defined to mean (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or it on account of failure by her or any person related to her to meet such demand.

(12.) 'Abetment' as defined in S. 107 comprises (i) instigation to do that thing which is an offence, (ii) engaging in any conspiracy for the doing of that thing, and (iii) intentionally aiding by any act or illegal omission the doing of that thing.

(13.) Section 108 defines an 'abettor' as a person who abets an offence or who abets either the commission of any offence or the commission of an act which would be an offence.

(14.) The word 'instigate' in the literary sense means to incite, set or urge on, stir up, goad, foment, stimulate, provoke etc.

(15.) In the case of the State of Punjab v. Iqbal Singh, reported in AIR 1991 SC 1532 : (1991 Cri LJ 1897) the Apex Court dealing with the legislative changes to combat the menace of dowry deaths observed thus (at page 1536) at page 1900-1901 of Cri LJ :

". . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . .

The increasing number of such deaths was a matter of serious concern to our law-makers. Cases of cruelty by the husband and his relatives culminated in the wife being driven to commit suicide or being done to death by burning or in any other manner. In order to combat this menace the Legislature decided to amend the Penal Code, Criminal Procedure Code and the Evidence Act by the Criminal Law (Second Amendment) Act, 1983 (No. 46 of 1983). So far as the Penal Code is concerned S. 498-A came to be introduced whereunder 'cruelty' by the husband or his relative to the former's wife is made a penal offence punishable with

imprisonment for a term which may extend to three years and fine. The explanation to the section defines 'cruelty' to mean (i) wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to her life, limb or health, or (ii) causing harassment of the woman with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security. Thus, under this newly added provision if a woman is subjected to cruelty by her husband or his relative it is a penal offence and by the insertion of S.498-A in the Code of Criminal Procedure a Court can take cognizance of the offence upon a police report or upon a complaint by the aggrieved party or by the woman's parents, brother, sister, etc. The offence is made non-bailable. In so far as the Evidence Act is concerned, a new S. 113-A came to be introduced which reads as under ;

"113-A. Presumption as to abetment of suicide by a married woman- When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relatives of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband,

Explanation.- For the purposes of this Section, 'cruelty' shall have the same meaning as in S. 498-A of the Indian Penal Code (45 of 1860).'

(16.) On a plain reading of this provision it is obvious that if a wife is shown to have committed suicide within a period of seven years from the date of marriage and there is evidence that she was subjected to cruelty by her husband or his relative, it would be permissible for the Court to presume that such suicide was abetted by her husband or by such relative of her husband. The Amendment Act 46 of 1983 received the assent of the President on 25th December, 1983 and was published in the Gazette of India, Extra, dated 26th December, 1983. The trial Court rendered its judgment on 23rd February, 1984 and it does not appear if the prosecution concentrated on S. 113-A, Evidence Act, or otherwise it would have tried to place on record the exact date of marriage to take advantage of the presumption arising thereunder. The High Court referred to this provision but did not say anything in regard to its application. Being a rule of evidence it could perhaps have been invoked if proof regarding the exact date of marriage was laid. Since there is no cogent evidence that the marriage was solemnised within seven years from the date of incident we need not dilate on that point.

(17.) The law underwent a further change with the introduction of S. 304-B in the Penal Code and S. 113-B in the Evidence Act by the Dowry Prohibition (Amendment) Act, 1986. Where the death of a woman is caused by burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and evidence reveals that soon before her death she was subjected to cruelty or harassment by her husband or any of his relative for or in connection with any demand for dowry, such death is described as dowry death under Section 304-A for which the punishment extends to imprisonment for life but not less than imprisonment for seven years. By S. 113-B, Evidence Act the Court has to raise a presumption of dowry death if the same has taken place within seven years of marriage and there is evidence of the woman having been subjected to cruelty and/or harassment.

(18.) The legislative intent is clear to curb the menace of dowry deaths, etc. with a firm hand. We must keep in mind this legislative intent. It must be remembered that since such crimes are generally committed in the privacy or residential homes and in secrecy, independent and direct evidence is not easy to get. That is why the Legislature has by introducing Ss. 113-A and 113-B in the Evidence Act tried to strengthen the prosecution hands by permitting a presumption to be raised if certain foundational facts are established and the unfortunate event has taken place within seven years of marriage. This period of seven years is considered to be turbulent one after which the Legislature assume that the couple would have settled down in life. If a married woman is subjected to cruelty or harassment by her husband or his family members S. 498-A, I.P.C. would be attracted. If such cruelty or harassment was inflicted by the husband or his relative

for, or in connection with, any demand for dowry immediately preceding death by burns and bodily injury or in abnormal circumstances within seven years of marriage, such husband or relative is deemed to have caused her death and is liable to be punished u/S. 304-B, I.P.C. When the question at issue is whether a person is guilty of dowry death of a woman and the evidence discloses that immediately before her death she was subjected by such person to cruelty and/or harassment for, or in connection with, any demand for dowry, S. 113-B, Evidence Act provides that the Court shall presume that such person had caused the dowry death. Of course if there is proof of the person having intentionally caused her death that would attract S. 302, I.P.C. Then we have a situation where the husband or his relative by his wilful conduct creates a situation which he knows will drive the woman to commit suicide and she actually does so, the case would squarely fall within the ambit of S. 306, I.P.C. In such a case the conduct of the person would tantamount in inciting or provoking or virtually pushing the woman into a desperate situation of no return which would compel her to put an end to her miseries by committing suicide. . . . . . ."

(19.) The Apex Court in the case of Gurbachan Singh v. Satpal Singh, reported in 1990 SCC (Cri) 151 : (1990 Cri LJ 562) : (AIR 1990 SC 209) in a case u/S. 306, I.P.C. observed (at page 564 of Cri LJ) : "While civil case may be proved by mere preponderance of evidence, in criminal case the prosecution must prove the charge beyond all reasonable doubt. This is so even after the introduction of S. 498-A, I.P.C. and S. 113-A, Evidence Act. The Courts must strictly be satisfied that no innocent person, innocent in the sense of not being guilty of the offence of which he is charged, is convicted, even at the risk of letting of some guilty persons. There is higher standard of proof in criminal cases than in civil cases. But there is no absolute standard in either of the cases. The doubt must be of a reasonable man. The standard adopted must be the standard adopted by a prudent man which, of course, may vary from case to case, circumstances to circumstances. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicions and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice, according to law. Reasonable doubt is simply that degree of doubt which would permit a reasonable and just man to come to a conclusion. Reasonableness of the doubt must be commensurate with the nature of the offence to be investigated."

(20.) The Punjab and Haryana High Court in the case of Ashok Kumar v. The State of Punjab, reported in 1987 Cri LJ 1412 construing the provisions of S. 113-A, Evidence Act held that under the provisions of Sec-tion 113-A of the Evidence Act, as inserted with effect from December 26, 1983, unless the husband can be held guilty of subjecting the wife to cruelty, no presumption of abetting the wife in committing suicide is available under the provision.

(21.) The Bombay High Court in the case of Smt. Sarala Prabhakar Waghmare v. State of Maharashtra, reported in 1990 Cri LJ 407, held that it is not every harassment or every type of cruelty that would attract Section 498-A; it must be established that beating and harassment was with a view to force wife to commit suicide or to fulfil illegal demands of husband and in-laws.

(22.) A Division Bench of Orissa High Court in Babaji Charan Barik v. The State, 1994 Cri LJ 1684, held that a combined reading of S. 113-B of the Evidence Act, and S. 304-B, I.P.C. shows that there must be material to show that soon before her death the victim must have been subjected to cruelty or harassment. The expression 'soon before, is very relevant. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment, and only in that case the presumption will operate.

(23.) On a close look at the provisions of Sections 304-B and 498-A, I.P.C., it is evident that one of the essential ingredients to be established for the offences under both the sections is that the woman must have been subjected to cruelty or harassment by her husband or any relative of her husband in connection with any unlawful demand for any property or valuable security or on account of failure by her or any person related to her to meet such demand. The other ingredients like death having taken place in abnormal circumstances and within the statutory period of seven years for attracting Section 304-B have to be amply established

from the materials on record. The moot point, therefore, is whether from the materials on record it can be said that before her death Veena Devi was subjected to cruelty or harassment by the accused person on account of or relating to the demand for dowry. If the question is answered in the affirmative then the presumption under Section 113-A and B of the Evidence Act will also come to play.

(24.) The learned Counsel for the appellant vehemently contended that the dying declarations alleged to have been made by the deceased to the Police should not be accepted as these were not otherwise inspiring confidence and the dying declaration alleged to have been made by the deceased to the Sub-Divisional Magistrate should not be construed as such since the wife had not stated that she was subjected to cruelty soon before her death. He contended that the prosecution has failed to establish by leading cogent evidence that soon before the death of Veena Devi, there was any demand of dowry by the appellant. To support his submission the learned Counsel has relied upon decision in Gurmukh Singh v. State of Himachal Pradesh, 1997 (1) Sim LC 61; Prem Singh v. State of Haryana, 1998 Supreme Court Cases (Cri) 1714 : (1998 Cri LJ 4019); Inder Raj v. State of Rajasthan, 1996 Cri LJ 924; Ramesh v. State of Haryana, 1998 Cri LJ 165; Bajrang v. State of Rajasthan, 1998 Cri LJ 134 and Sham Lal v. State of Haryana, 1997 (3) JT (SC) 91 : (1997 Cri LJ 1927).

(25.) Per contra, learned Asstt. Advocate General has sought to support the reasoning and conclusion arrived at by the trial Judge. He contended that two dying declarations were made by Veena Devi, one to the Investigating Officer in the presence of the doctor and second to the Sub-Divisional Magistrate in the presence of the same doctor who certified that Veena Devi before making these dying declarations was in a fit state of mind and she thumb marked both the dying declarations and that from the close scrutiny of the evidence neither parents nor any other relative of the deceased were present when Veena Devi had made her statements and in such circumstances there was no possibility of tutoring Veena Devi to make these dying declarations. According to the learned State Counsel both the dying declarations inspire confidence and these have been rightly acted upon by the learned trial Judge in convicting the appellant. He next contended that a statement by a victim recorded before his death as F.I.R. can also be treated as dying declaration and is admissible under law. In support of his submission he has relied upon a judgment of the Supreme Court in Munnu Raja v. The State of Madhya Pradesh, AIR 1976 SC 2199 : (1976 Cri LJ 1718). In that judgment their Lordships held that it is well settled that though a dying declaration must be approached with caution for the reason that the maker of the statement cannot be subjected to cross-examination, there is neither a rule or law nor a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated. Thus Court must not look out for corroboration unless it comes to the conclusion that the dying declaration suffered from any infirmity by reason of which it was necessary to look out for corroboration. Reliance has also been placed by the learned Asstt. Advocate General on Ganpat Mahadeo Mane v. State of Maharashtra, 1993 Supp (2) SCC 242 : (1993 Cri LJ 298) in which it was held that three dying declarations recorded one by the doctor in the hospital, another by a police constable and the third one by Executive Magistrate after doctor certified that the deceased sustaining 90% burn injuries was in a condition to give statement and in the circumstances the contention that the deceased having 90% burn injuries would not have made so many dying declarations not sustainable. Their Lordships proceeded to hold that dying declaration cannot be assailed on the ground that it was not by way of questions and answers. The learned Asstt. Advocate General also relied upon a judgment of the Apex Court in Nawab Ali Jhinnu v. State of Uttar Pradesh, AIR 1994 SC 1607 : (1994 Cri LJ 2191) in which it was held that if the conscious state and good mental condition of the deceased before making dying declaration were certified by the doctor, and veracity of it effected merely by reason of certain infirmities in it, will not be sufficient to discard such dying declaration. The learned Asstt. Advocate General has also relied upon a judgment of the Apex Court in Betal Singh v. State of M. P. (1996) 4 SCC 203, in which it was held that in bride burning case dying declaration recorded by the police officials can be acted upon if the same is found to be

true, coherent and consistent and free from any effort to prompt the deceased to make such statement. The learned Asstt. Advocate General also contended that the prosecution has proved beyond reasonable doubt that Veena Devi died unnatural death and there is sufficient evidence showing that there was dowry demand on the part of the appellant, therefore, the presumption under Section 113-B of the Evidence Act is available and the appellant is liable to be convicted under Section 304-A, I.P.C. In support of this submission, the learned Asstt. Advocate General relied upon judgments of the Apex Court in Hem Chand v. State of Haryana, AIR 1995 SC 120 and State of Himachal Pradesh v. Nikku Ram, AIR 1996 SC 67 : (1995 Cri LJ 4184). In the later case their Lordships of the Supreme Court held that the demand made after solemnization of marriage would constitute dowry under Section 2 of Dowry Prohibition Act (28 of 1961). He also relied upon judgments of the Apex Court in Smt. Shanti v. State of Haryana, AIR 1991 SC 1226 : (1991 Cri LJ 1713) and Wazir Chand v. State of Haryana, AIR 1989 SC 378 : (1989 Cri LJ 809) to contend that the prosecution has also established the charge punishable under Section 498-A, I.P.C. against the appellant.

(26.) Now coming to the evidence, in the case on hand prosecution examined four witnesses, P.W. 1 Doctor, P.W. 6 Sub-Divisional Magistrate and P.W. 13 Investigating Officer to prove that two dying declarations Exts. PW-8/A and PW-6/C were made by Veena Devi in the hospital before her death. The first dying declaration was recorded by Investigating Officer who moved an application Ext. PW-1/B to the doctor seeking his opinion whether Veena Devi was in a fit state of condition to make statement, Dr. M. K. Sexena has stated in his deposition that though the patient was semi-conscious yet she was fit to make the statement and he recorded his opinion in Ext. PW-1/C in red ink in his handwriting. He testified that the dying declaration Ext. PW-8/A was attested by him. He also deposed that second dying declaration Ext PW-6/C recorded by the Sub-Divsional Magistrate on 19-7-1997 in the hospital was made by Veena Devi, after he recorded his opinion that Veena Devi was fit to make the statement and his endorsement was marked 'B'. P. W. 6 Shri P. D. Chaudhary who at the relevant time was Sub-Divisional Magistrate at Nurpur deposed that he recorded the statement Ext. PW-6/C of Veena Devi after ascertaining her fitness to make such statement from the doctor who certified that Veena Devi was in a fit condition to make the statement. A suggestion put to this witness on behalf of the appellant that Veena Devi was not in a position to make any statement as she was having extensive burn injuries on her body and was unable to see and talk as she was in semi-conscious condition was specifically denied by him. Another suggestion was also put to him that a few days prior to the present incident there was another similar type of incident in the area and the Mahila Mandal of the village and people had made a strong protest after that incident and that in order to satisfy the people, the present case was foisted upon the appellant giving colour of dowry death he denied such suggestion. P. W. 13 Jagan Nath, Inspector moved an application Ext. PW-1/B to the doctor for his opinion as to whether Veena Devi was in a fit condition to give the statement and the doctor opined that Veena Devi was in a fit condition to make the statement which was recorded by this witness and marked Ext. PW-8/A and the same was not attested from the doctor at marked Ext. PW-8/D. On the basis of statement Ext. PW-8/A the present F.I.R. came to be lodged against the appellant to the Police Station. In his cross-examination he stated that before the Sub-Divisional Magistrate could reach at the hospital, for recording second dying declaration of Veena Devi, he had already recorded the first statement which was sent to the Police Station for recording of the First Information Report. He also denied the suggestion of the appellant that there was tension in the Illaqa due to the cases of bride burning in the area and since the people raised slogans against the Police and the Administration, the alleged dying declarations were recorded by him and the Sub-Divisional Magistrate, Nurpur to satisfy the agitating people. From the reappraisal of the evidence of the witnesses connecting with the recording of the dying declarations of Veena Devi, who are all official witnesses and not connected with false involvement of the appellant either on their own or on the asking of the parent or other relative of deceased-Veena Devi, I find that both the dying declarations are to be accepted to be

trustworthy and reliable and no corroboration is required to discredit the statements made by the deceased in these dying declarations. In both these dying declarations Veena Devi stated that she was married to the appellant about six years prior to the year 1997 and a son was born out of their wed-lock whose age was about 31/2 years. She also stated that her husband-appellant was doing labourer work. She stated that her husband used to maltreat and harass her for bringing insufficient dowry and he was demanding Television, Cooler and Godrej Almirah after her marriage whereas her parents were poor people and she could not bring any dowry at the time of marriage. She also stated that she committed suicide on her own after pouring kerosene oil on her body when her two sister-in-laws by name Smt. Veena Devi and Reeta Devi were present and working in the house. From the bare perusal of the aforesaid two dying declarations I am of the considered view that Veena Devi made statements to the Investigating Officer and Sub-Divisional Magistrate in a fit condition as opined by the doctor and the trial Judge has rightly relied upon and accepted the dying declarations holding the appellant responsible for dragging his wife Veena Devi to commit suicide and, therefore, no fault is found in the reasoning of the trial Judge.

(27.) To prove the demand of dowry by the appellant from Veena Devi, the prosecution has relied upon the evidence of P.Ws. Amin Chand father of deceased Veena Devi and Smt. Uttama Devi mother of Veena Devi. Both of them have stated that their daughter had told them that the appellant used to demand dowry and used to torture her for not bringing the same and they never acceded to his demands as they being poor and were not able to provide the things or articles demanded by the appellant. However, they have admitted a suggestion of the appellant in their cross-examination that this was the second marriage of Veena Devi and also of Budhi Singh and that nothing was taken or given as dowry at the time of marriage. A suggestion was also given to P. W. Amin Chand that his second daughter Urmila is also married in the same village and the marriage was arranged through Smt. Veena Devi which he admitted to be true. Smt. Uttama Devi also admitted in her cross-examination that nothing was taken or given at the time of the marriage to the appellant. Both these witnesses have also stated that after about one year of marriage, the appellant started giving beatings to Veena Devi and a complaint was also made to the Panchayat about the beating and demand of dowry after about two years of the marriage and the Panchayat called the appellant and gave him some counselling in writing but when both these witnesses were confronted with their statements recorded by the Investigating Officer under Section 161, Cr.P.C. in which such allegations had not been made by them, they had shown their ignorance about their statements recorded u/S. 161, Cr.P.C. From the evidence of both these witnesses, it is manifest that the prosecution could not prove beyond reasonable doubt that there was any demand of dowry by the appellant and, therefore, their testimony is of no help and assistance to the prosecution to establish that the appellant who is admittedly a la

bourer has been making any demand of dowry from the parents of Veena Devi. For constituting an offence under Section 304-B, I.P.C. the prosecution has to prove that soon before the death of Veena Devi she was subjected to cruelty or harassment by the appellant for or in connection with any demand for dowry. In her dying declarations Veena Devi has only stated that before she poured kerosene oil and set her body on fire, there was some quarrel ensued between her and appellant and she had not specifically stated that soon before her death she was subjected to cruelty or harassment by the appellant for or in connection with any demand of dowry. Legal presumption under Section 113-B of Evidence Act as to dowry death of Veena Devi cannot be invoked to prove that soon before her death, Veena Devi was subjected to such cruelty or harassment as the prosecution has not brought on record any evidence to prove that it was imperative for invoking the aforesaid legal presumption. In Sham Lal v. State of Haryana, 1997 (3) JT (SC) 91 : (1997 Cri LJ 1927), their Lordships of the Apex Court said that it is imperative for invoking the legal presumption under Section 113-B of Evidence Act for attracting the provisions of said Section and fastening penal liability upon the accused under Section 304-B, I.P.C. That the prosecution has to prove that "soon before her death" the wife was subjected to such cruelty or harassment. In similar and identical facts the Apex Court found that the accused could not be convicted of the offence under Section 304-B I.P.C. Looking to the conduct of the appellant that after Veena Devi set her body on fire he immediately took her to hospital. The defence of the appellant that Veena Devi used to help his daughter-in-law Urmila Devi financially who admittedly was married in the same village and such marriage was arranged by Veena Devi as admitted by her parents in their deposition, and that the appellant used to ask her not to help her sister financially as he himself was not well to do person and that Veena Devi did not take it in good humour and started behaving indifferently and got annoyed, appears to be more natural and plausible in the facts of the present case, which has to be accepted. (28.) On re-appraisal of the entire evidence on record the reasoning of the trial Judge convicting the appellant under Sec. 304-B, I.P.C. cannot be held sustainable. The corollary of the aforesaid finding is that the appellant cannot be convicted of the offence under Section 304-B, I.P.C. (29.) As noticed above, from the evidence based on two dying declarations of Veena Devi which find corroboration from the oral testimony of Doctor, Sub-Divisional Magistrate and Investigating Officer, there is over-whelming evidence against the appellant that he has committed an offence under Section 498-A, I. P. C. and the evidence of these witnesses and dying declarations of deceased Veena Devi were found reliable, cogent and convincing, I hold that the prosecution has succeeded in proving the charge under Section 498-A, I. P. C. against the appellant. (30.) I, therefore, set aside the conviction and sentence of the appellant under Section 304-B, I. P. C. but I find him guilty of the offence under Section 498-A of the I. P. C. and the conviction and sentence recorded by the trial Judge to that extent is confirmed. It is needless to say that if the appellant has already completed the period of imprisonment under Section 498-A, I. P. C. including default of payment of fine, if not paid by him, the appellant shall be set at liberty forthwith, if not required in any other case. The appeal is accordingly allowed in part indicated hereinabove.Appeal partly allowed.