DILIP Vs. STATE OF M P

JUDGEMENT

(1.) This appeal under Section 374 of the Code of Criminal Procedure is directed against the judgment dated 5-12-1997, passed in Sessions Trial No. 120/1997, by IInd Additional Sessions Judge, Ujjain convicting the appellant under Section 304-B of IPC with Rigorous Imprisonment for 10 years. The prosecution story as alleged is that on 31-12-1996, deceased Manju was died by burns. The dying declaration (Exh. P-11) was recorded by Anil Patwa, Naib Tehsildar (P.W. 8) mentioning that the burn was caused by her husband because the father has not given dowry in marriage thereupon the offence under Section 307/498-A of IPC was registered. After death due to said injuries the offence under Section 307 read with Sections 302, 304-B as well as 306 of IPC was registered and the challan has been filed. On committal, it was sent to Competent Court for trial where the charges under Sections 306, 302 and 304-B of IPC were framed. The accused had abjured his guilt stating innocence and taken a defence of false implication after the death by his wife. The prosecution has examined 15 witnesses to prove its case and in defence no witness has been examined by the accused.

(2.) The Trial Court found that the dying declaration (Exh. P-11) cannot be relied upon to prove the charge under Section 302 of IPC. It is further held that the charges under Sections 302 and 306 of IPC has not been established by the prosecution bringing the cogent evidence on record, however, acquitted the accused but relying upon the statement of Rampal-father of deceased (P.W. 12) and Rambabu-brother of deceased (P.W. 13) and also partly relying upon the dying declaration convicted the appellant for the charge under Section 304-B of IPC and directed him to undergo Rigorous Imprisonment for 10 years.

(3.) Shri Vivek Singh, learned Counsel appearing on behalf of the appellant after reading the statement of Rampal-father (P.W. 12) and Rambabu-brother (P.W. 13) and also reading the dying declaration (Exh. P-11) and also the statement of Anil Patwa, Naib Tehsildar (P.W. 8) recorded dying declaration and further relying upon the statement of Prakashchandra Dubey (P.W. 9), Forensic Expert and Yashpal Sharma (P.W. 1) contended that the deceased was died in a bathroom pouring the kerosene over her. This neighbour reached on the spot first and found that the door of the bathroom was bolted from inside, which was broken by Yashpal Sharma (P.W. 1) with the help of Om Prakash and Sanjay Jadhav and as per the evidence brought, it is clear that at that time the accused was not present on the spot. In addition to it, it is submitted that in the statement of father and brother of deceased it has not been established that there is any demand of dowry, cruelty and harassment soon before her death, essential to bring the charge under Section 304-B of IPC at home and to draw the presumption under Section 113-B of Evidence Act. It is further said that by plain reading of dying declaration allegation of cruelty and harassment as well as demand of dowry is not there, therefore, the prosecution has not established the essential ingredients of Section 304-B of IPC. However, the presumption under Section 113-B of Evidence Act is not attracted. In such circumstances, conviction directed by the Trial Court is liable to be set aside. Shri Vivek Singh, Counsel has placed reliance on the judgments of Hon'ble the Apex Court in the case of Sham Lal Vs. State of Haryana, 1997 SCC(Cri) 759 Baljeet Singh and another Vs. State of Haryana, 2004 SCC(Cri) 692 State of Rajasthan Vs. Teg Bahadur and others, 2005 SCC(Cri) 218 and M. Srinivasulu Vs. State of A.P., 2007 AIR(SC) 3146 to buttress the said contention and prayed to acquittal of accused allowing this appeal.