JUDGMENT 1. - This appeal is directed against the judgment of Sessions Judge, Jaisalmer dated 17.12.92 in Sessions Case No. (6/90) 38/91 convicting each of the appellants under Section 304-B Indian Penal Code and sentencing them to 10 years' R.I. and a fine of Rs. 2,000/-. He also convicted the accused under Section 498A Indian Penal Code and sentenced them to 1 year's R.I. Both the sentences were ordered to run concurrently. 2. Facts giving rise to this appeal stated briefly are that on 13.11.89 at about 7 P.M. while she was in her room on the first floor her clothes caught fire as a result of which she received burn injuries on her person and was immediately got admitted in the Government Hospital, Jaisalmer were despite treatment she eventually died on 17.11.89 and as per post-mortem report she had received 90 to 95% burn injuries. 3. That on 13.11.89 at 8.30 P.M., a case was registered under Sections 307,326 and 498 Indian Penal Code vide F.I.R. No. 240 at the police station, Jaisalmer on the strength of the proposed statement of Smt. Sharda alleged to have recorded by P.W. 16 Shri Jagdish Ram Bhadu, A.C.M. (Executive Magistrate), Jaisalmer. 4. The entire evidence in this case is circumstantial, there is no eye-witness. Deceased Shanti Devi died of burns and hence, the appellants were convicted under section 304-B. The learned Judge while convicting the accused has accepted the evidence of the prosecution and heavily relied upon the dying declaration of Shanti Devi. While arguing the appeal, the learned counsel appearing on behalf of the appellants submitted that if the dying declaration is to be accepted, conviction under Section 304B is not possible. Section 304-B reads thus: "(1) 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 husband or any relative of her husbands 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. Explanation : For the purposes of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). Explanation : For the purposes of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life". 5. It was the statement of the learned counsel that there must be evidence that soon before the death, the deceased was subjected to cruelty or harassment by her husband # any relative of her husband in connection with any demand for dowry. The learned counsel submitted that even if the entire evidence of the prosecution is accepted such conclusion is not possible in the present case. He submits that the death cannot be called a dowry death even if, the dying declaration is to be accepted as correct. 6. The dying declaration of Shanti Devi reads as follows:- eq>s esjs nsoj us rsy NhM+d dj tyk;kA rsy dsjkslhu FkkA esjs nsoj dk uke vfuy dqekj gSA eSa ml le; lkM+h mrkj jgh FkhA tc esjs nsoj us esjs ij dsjkslhu rsy NhM+d fn;kA mlh le; nsoj us ekfpl tyk dj vkx yxk nhA nwljk NksVk nsoj ?kj ij Fkk og viuh eEeh ds ikl FkkA bl ls igys lqcg lk<+s nl cts ds djhc esjs 'olqj jk.khnku esjs nsoj vfuydqekj dks dqN dg dj ckgj x;s FksA fnu esa lkl us eq>s xkfy;ka nh rFkk >xM+k fd;kA ckn es 'kke dks djhc 7 cts dejs esa eSa tc lkM+h mrkj jgh Fkh rks esjs nsoj vfuy dqekj us rsy NhM+d dj vkx yxk nhA bldk dkj.k esjs 'olqj }kjk esjs ls iSls ekaxuk Fkk esjs 'olqj eq>s ihgj ls iSls ykus ds fy;s dgrs Fks rFkk ekjihV djrs FksA ;g iwNus ij fd iSls ykus ds fy;s rsjs ifr o lkl rax djrs Fks D;k] ij flj fgykdj gkWa esa tokc fn;kA blds ckn mijksDr c;kudrkZ csgks'k gks xbZA mijksDr c;ku esjs }kjk iqfyl o MkDVj }kjk bryk nsus ij 'kke dks 7-30 ih0,e0 ij fy;k x;kA c;ku ds le; MkDVj Jh gfjflag ikstnkj mifLFkr Fks ftUgksaus jksxh dks c;ku nsus dh fLFkfr esa gksuk crk;kA ,cksoislsUV bt fQV Vw fxo LvsVesaUV g0 13-11-89 7-30 ih0,e0 13-11-89 txnh'k jke Hkknw gLrk{kj 13-11-89 ,fl0 dysDVj ,.M ,DthD;wfVo eftLV~sV 7. A scrutiny of this statement will show that the deceased was put on fire by her brother-in-law named Anil Kumar. She has stated that while she was changing her saree, her brother-in-law came there sprinkled kerosene on her and put her on fire. She has stated that in the morning, her mother-in-law abused her and father-in-law has said something while going out to Anil Kumar, who in the evening at 7 P.M. put her on fire. There is no evidence on record to show that Ranidan the father-in-law of the deceased instructed his son Anil Kumar to burn the daughter-in-law Shanti Devi as she is not has not brought sufficient dowry. It cannot therefore, be said that the death of Shanti Devi was a dowry death. What is contemplated by Section 304-B is a dowry death even if, the entire evidence of the prosecution is accepted, such conclusion is not permissible. The learned Judge, therefore, erred in inferring dowry death from dying declaration of the deceased. 8. It has come in evidence of the father of the deceased that when he went to see his daughter, she was burning, he took her in his lap and then with the assistance of others, took to the hospital, she was crying in pain. It has come in evidence that it is thereafter, in hospital, she gave the dying declaration, she was in a position to give the dying declaration, she was in senses to state what she has stated. If this aspect of the evidence is accepted, it becomes extremely difficult to presume that she forgot to say anything about this to her father. She could have said in two sentences that she has been burnt for dowry to her father. However, I do not propose to go into the correctness or validity or acceptability of the dying declaration. I assume, for the shake of this case, that the dying declaration is the whole truth. I must add that I am not coming to a finding on merits of the dying declaration as the prosecution on Anil Kumar is pending in Juvenile Court. I assume, for the shake of this case, that the dying declaration is the whole truth. I must add that I am not coming to a finding on merits of the dying declaration as the prosecution on Anil Kumar is pending in Juvenile Court. Even if this declaration is thus considered to be truthful it unmistakeably points out to Anil Kumar putting the deceased on fire, unless there is cogent evidence on record to connect the other accused persons, present appellants, to the incident or that they aided or abated Anil Kumar in putting Shanti Devi on fire. Their conviction under Section 304-B is unsustainable. In my opinion, it is not possible to presume as contended by the learned Public Prosecutor that Anil Kumar must have done the act on the instigation of the present appellants because Anil Kumar who is the minor of 11 years old cannot do such act on his own inferential, inference of such kind is not permissible. 9. There is no evidence worth the name to warrant conviction under Section 498-A of the Indian Penal Code regarding cruelty or ill-treatment of the accused. 10. In the result, the appeal is allowed. The accused-appellants are acquitted of the offences punishable under sections 304-B and 498-A of the Indian Penal Code. They shall be released forthwith, if not required in any other case.Appeal allowed- Conviction set aside. *******