JUDGMENT 1. - Being aggrieved by the judgment of the conviction dated 9.6.1997 passed by the learned Sessions Judge, Jaisalmer in sessions case No. 39/95, the appellants have preferred this appeal on the grounds mentioned in the memo of appeal. 2. The appellants were prosecuted under sections 304-B 8r 498-A of the Indian Penal Code. It was alleged by the prosecution that a first information report was lodged on 28.7.1995 by one Om Singh stating that on 27.5.1995, his sister met homicidal death at the hands of her husband Lilu Singh and mother-in-law Sakhi Devi. It is alleged in the first information report that these persons were harassing and treating with cruelty the deceased Bhagwati for not bringing appropriate dowry. The marriage had taken place on 6.3.1992. Admittedly therefore, the death occurred within seven years of the marriage. After due investigation, challan was filed by the police against the appellants and the learned Judge recorded the evidence and on appreciation of the evidence found the accused-persons guilty as aforesaid. It is this order which is assailed by the learned counsel for the appellants on several grounds. It is submitted that the learned Judge has not appreciated the evidence on record completely. He has totally ignored the material evidence in the shape of dying declaration given by deceased Bhagwati in presence of Magistrate after being duly certified by the Doctor as capable of testifying. It was then submitted by the learned counsel that there are no eye witnesses in the present case. Majority of the witnesses have been declared hostile and there is no evidence on the basis of which a conviction can legitimately be ordered or maintained. 3. In view of the fact that the learned Judge has recorded the conviction, the evidence in its entirety will have to be re-appreciated to scrutinise the judgment impugned in appeal. PW 1 is one Jitendra Singh S/o Roop Singh who stated that he did not see the wife of Lilu Singh in a burnt state. He was declared hostile and cross-examined by the prosecutor. In his cross-examination, he stated that his police statement was forcibly recorded. Then he alleged in the cross-examination by the prosecutor that he does not know anything about the incident. He was declared hostile and cross-examined by the prosecutor. In his cross-examination, he stated that his police statement was forcibly recorded. Then he alleged in the cross-examination by the prosecutor that he does not know anything about the incident. He also denied the suggestion that whenever he visited the accused, he heard from the people in the vicinity that the accused-persons were torturing Bhagwati in connection with dowry. It will thus be seen that this witness does not state anything and was liable to be ignored. 4. PW 2 is Manohar Singh, who was also declared hostile. In his cross-examination, he stated that he is illiterate. This witness stated in his examination-in-chief that it is wrong to state that the accused tortured the deceased Bhagwati prior to her death. He was also declared hostile as aforesaid and has stated in the cross-examination that when he visited the house of accused, deceased Bhagwati was sitting in her room and was in a burn state. He states that he had taken his wife and mother to the hospital to see the condition the deceased. Afterwards he denies any knowledge of torture prior to death. This witness in his cross-examination by the accused states that when he asked Bhagwati, she stated that she was burnt while preparing food as the stove had over turned while she was filling kerosene in it. Ex. P/4 is a document written by this witness PW 2 which is report given by him to the Police Station, Jaisalmer who states the subject as taking action in relation to the death caused due to fire. It is stated in.Ex. P/4 that Bhagwati wife of Lilu Singh while she was preparing food at about 4.30 p.m. on 24.5.1995, her clothes caught fire and she was admitted to the hospital where she succumbed to the injury at about 11.30 p.m. Ex. P/4 is, therefore, the contemporary document executed by PW 2 in which it is recorded that Bhagwati was bUrned while preparing food. Probably because this witness was declared hostile. Ex. P/4 has not been properly appreciated. 5. PW 3 Babu Lal was declared hostile because he has stated that he knows nothing about cruel treatment given to Bhagwati by her-in-laws and has nothing to say about her death. In his cross-examination by the learned Public Prosecutor and the cross-examination also did not reveal anything relevant to the prosecution story. Ex. P/4 has not been properly appreciated. 5. PW 3 Babu Lal was declared hostile because he has stated that he knows nothing about cruel treatment given to Bhagwati by her-in-laws and has nothing to say about her death. In his cross-examination by the learned Public Prosecutor and the cross-examination also did not reveal anything relevant to the prosecution story. This witness had sworn on affidavit on 28.6.1995 which is exhibited as Ex. P/10 in which, he has stated that whenever Bhagwati is to come to her parents house, she complained of cruel treatment given to her by her in laws. But even in this affidavit, he has stated that:- " Hkxorh dks mldh lkl o ifr D;ksa ekjrs Fks bldk eq>s irk ugha gSA " He states in his cross-examination that Ex. P/10 was not read over to him. He does not understand what is stated in the affidavit and he had not stated what is mentioned in the affidavit. Consequently, Ex. P/10 does not corroborate the statement of the accused and he does not therefore form part of any evidence which can support the prosecution. 6. PW 4 is Dr. Chandra Shekhar Joshi who was functioning as Medical Jurist in Jawahar Hospital, Jaisalmer on 24.5.1995 when Smt. Bhagwati was admitted to that hospital. He states that when she was in conscious. He states that she was fit to depose. He also conducted the post mortem and states that her death was caused due to burn. His evidence, therefore, proved that death of Smt. Bhagwati was caused by fire. 7. PW 5 Jain Singh who states that Bhagwati was his niece. He states that when he came to home in the evening, he was informed that Bhagwati is admitted to hospital. She was burnt by her-in-laws. He then states that in between 4.30 and 5.00 p.m. accused Lilu Singh came to his house and said that I burnt your daughter, save her if you can. In his cross-examination, he states that he knows about the dates or the time when Bhagwati was tortured by her-in-laws for dowry. All that states therefore, is that the accused himself disclosed to him that he had burnt Bhagwati. Heavy reliance is placed on this witness by the prosecution and the learned Sessions Judge has accepted the testimony of this witness for coming to the conclusion of guilt. All that states therefore, is that the accused himself disclosed to him that he had burnt Bhagwati. Heavy reliance is placed on this witness by the prosecution and the learned Sessions Judge has accepted the testimony of this witness for coming to the conclusion of guilt. He has deposed in his cross-examination that when he went to the hospital Manohar Singh PW 2 was present. 8. PW 6 is Deen Dayal who was also declared hostile and in his cross-examination, he states that the conduct of the accused persons with the deceased was good. 9. PW 7 is Ghanshyam who was also declared hostile and stated that he knows about the incident and the conduct of the accused persons with the deceased was good. 10. PW 8 Bhagwan Singh is the Circle Inspector, Police Kotwali, Jaisalmer who received Ex. P/4 and has stated that is the first information recording death of deceased Bhagwati. This witness has also deposed that in the Rajput Society at Jaisalmer, information of crime is lodged only .after consultation with the people of the community. He thus, seeks to explain the delay caused in lodging the first information report by the brother of the deceased. 11. Here it may be noted that the learned Sessions Judge has inadvertently numbered two witnesses as PW 7. He has noted Ghanshyam as PW 7 who was examined on 24.1.1996 and Bhagwan Singh as PW 7 who was examined on 9.6.1996. This error has therefore, continued thereafter in the witness being wrongly numbered. I would refer the witnesses after correctly numbering them. 12. PW 9 is Ashok Kumar Gupta, Dy.S.P. who is the Investigating Officer. He has deposed to the entire process of investigation as undertaken by him. PW 10 is Sujan Singh. In his examination-in-chief, this man states that he does not know reason why the accused were ill-treating the deceased. He says that he heard about the ill-treatment from the deceased but then states that she did not state clearly anything. This witness had then stated that:- " yhyw flag ds diM+ksa ls dksbZ cq ugha vk jgh FkhA " 13. PW 11 is Om Singh, brother of the deceased, on whose evidence, heavy reliance was placed by the learned Judge for recording conviction. This witness had then stated that:- " yhyw flag ds diM+ksa ls dksbZ cq ugha vk jgh FkhA " 13. PW 11 is Om Singh, brother of the deceased, on whose evidence, heavy reliance was placed by the learned Judge for recording conviction. He states that whenever his sister came home, she used to tell them that she is being tortured by her in-laws for bringing inadequate dowry. He then alleges that his sister was burnt to death by the accused-persons. This witness states that at about 4.30 p.m., accused Ulu Singh came to his house and informed him that he has burnt Bhagwati and they should save her. He then states that at that time I came for taking meal and therefore, ignored the statements of the accused Lilu Singh. This witness had then stated that : " eSaus ;g ckr lquh ysfdu eSaus bl ckr dks egrk ugha nh D;ksafd igys Hkh yhyw flag nks&rhu ckj ,slh ckrs dg pqdk Fkk mlds ckn eSa vius vkWfQl pyk x;kA " He then states that he was mentally disturbed due to homicidal death of his sister and therefore, he lodged the report on the next day. In his cross-examination, he has admitted that he did not state before the police that Bhagwati was threatened before she was brought to hospital. He has, however, stated so in deposition in the Court. 14. PW 12 Smt. Nakko Devi who is mother of the deceased Bhagwati. This witness states that Bhagwati was burnt and was admitted in hospital. This information was given to the witness by accused Lilu Singh. She was not certain what was stated by the accused. She states that Lilu Singh either beaten Bhagwati or may be he has burnt Bhagwati. She says that due to ill-health, she did not go to the hospital to see her daughter. Thereafter, the statement of the accused under section 313 Cr.P.C. was recorded and the accused person examined two witnesses in support of his case that he did not at any point of time treat his wife cruelly or that she was tortured by any member of his family. This witness has also deposed that Bhagwati herself told about being burnt accidental while preparing food and the accused was not at home at that time. 15. This witness has also deposed that Bhagwati herself told about being burnt accidental while preparing food and the accused was not at home at that time. 15. It is on appreciation of this evidence that the learned Judge has come to the conclusion of guilt. I have hereinbefore, re-appreciated the entire evidence and on re-appreciation, I find it impossible to concurrent with the learned Sessions Judge. The evidence as it stands is grossly insufficient for coming to the conclusion of guilt. The only evidence which can be said to be in support of the story of the prosecution is of Om Singh, the brother of the deceased and Nakko Devi, the mother of the deceased. Both of whom alleged that the accused came to their house and told them that he burnt Bhagwati and yet they did not carry her to the hospital to ascertain the factual position and see the condition in which the victim Bhagwati lying in the hospital. This conduct on the part of the witnesses itself is so unnatural that their statements regarding information given to them while Lilu Singh himself in unbelievable. It has come on record that at the time when Bhagwati had caught fire, accused Lilu Singh was not at home. Their evidence even if accepted in totality would prove at the most that during the past, Bhagwati was tortured by her in laws in connection with insufficient dowry. This evidence in itself is grossly inadequate to come to the conclusion that the accused persons are guilty of offence under section 304-B. Doctor Shri Chandra Shekhar Joshi has deposed that when Smt. Bhagwati was admitted, she was in a position to depose and was in conscious state of mind. Her deposition has been duly recorded and she has stated that she was burn accidentally. The fact that she was so burnt accidentally also support in Ex. P/4 lodged with the police by PW 2 immediately after the death of Bhagwati. It is therefore, the contemporary record and it is an intrinsic evidence of the fact that deceased Bhagwati died accidentally. " eqLekr dslj o vU; cuke jktLFkku jkT; o vU; " 16. The learned Sessions Judge has not at all considered the dying declaration. 17. P/4 lodged with the police by PW 2 immediately after the death of Bhagwati. It is therefore, the contemporary record and it is an intrinsic evidence of the fact that deceased Bhagwati died accidentally. " eqLekr dslj o vU; cuke jktLFkku jkT; o vU; " 16. The learned Sessions Judge has not at all considered the dying declaration. 17. In order to find a person guilty of offence under section 304-B, it is necessary first to find that the death was caused by burns or bodily injury or occurs otherwise by normal circumstances and soon before her death she was subjected to cruelty or harassment by her husband or any relative. In the present case, there is no evidence whatever to show that Bhagwati was soon before her death was tortured or harassed by the accused persons or any of the relation in connection with dowry. Burn injuries on the body of the deceased have been explained by the deceased herself in her dying declaration which was not considered by the learned Sessions Judge. The prosecution has therefore, failed to prove that the burn injuries on the body of deceased were not accidental as it has been alleged by deceased herself nor any evidence is led by the prosecution to show that soon before the death, she was subjected to cruelty or harassment by her husband or any of her relative in connection with the dowry. The conviction under section 304-B is, therefore, unsustainable in law. 18. The finding given by the learned Judge that the accused persons are guilty of offence under section 498-A is also not sustainable as the evidence of Om Singh and Nakko Devi in this regard is unreliable, none of them is able to say in certainty that the manner is which, she was harassed or the approximate time when she was harassed or the approximate nature in which she was beaten or tortured in the absence of any such cogent evidence. Even conviction under section 498-A of the Indian Penal Code is unsustainable. lam unable to agree with the learned Sessions Judge that the accused persons are guilty as found by him. I find that they are not guilty. 19. In the result, the appeal succeeds and is allowed. The judgment of conviction and sentence dated 9.6.1997 is set aside. Even conviction under section 498-A of the Indian Penal Code is unsustainable. lam unable to agree with the learned Sessions Judge that the accused persons are guilty as found by him. I find that they are not guilty. 19. In the result, the appeal succeeds and is allowed. The judgment of conviction and sentence dated 9.6.1997 is set aside. The accused persons are in jail, they be set at liberty forthwith if not required for any other purpose.Appeal allowed. *******