JUDGMENT Having convicted for an offence under Sec.304-B, I.P.C. and sentenced to undergo rigorous imprisonment for a. period of nine years by the learned third Additional Sessions Judge, Pondicherry in S.C.No.75 of 1991 dated 28.8.1992, the appellant has preferred this appeal. 2. The facts in brief are: The occurrence took place on 27.4.1991 at about 8.30 P.M. Three years before the occurrence, the marriage of Vasuki was celebrated with the appellant. A girl child was born through the marriage. P.W.4 is the mother and P.W.5 is the grand father of the deceased. At the time of the marriage, P.Ws.4 and 5 promised to give five sovereigns of jewel to the deceased as dowry. As the jewel was not given, the appellant used to abuse and beat the deceased. On the evening of the date of occurrence, the deceased went to the house of her grand father and asked him to give the five sovereigns of jewel. However, he was unable to give the same. On her return to the house, the appellant asked her whether she has brought the jewel. When she replied the jewel was not given, he told her they promised to give five sovereigns and why you have not brought the same and abused her. Unable to bear the harassment and the nagging insult, at 8.30 P.M. the deceased doused herself with kerosene and set fire on her. The deceased was rushed to the Government Hospital, Pondicherry, P.W.1, the duty doctor sent the intimation, Ex.P.1 to the Kalapet Police Station. P.W.10, the Sub-Inspector of Police received information at 10.15 P.M. from the Outpost Police Station attached to the Government Hospital, Pondicherry, and went to the hospital. As the condition of Vasuki was very serious, P.W.10 recorded the dying declaration of Vasuki in the presence of the doctor, P.W.2 after satisfying himself that she was conscious and she is able to answer the questions, which is Ex.P.2. Thereafter, P.W.10 returned to the police station at 11.30 P.M. and registered a case in Crime No. 42 of 1991 under Secs.498-A and 309, I.P.C. Ex.P.11 is the printed first information report prepared by him. He despatched the original first information to the Magistrate and copies to the Inspector of Police, Special Branch. Thereafter, P.W.10 returned to the police station at 11.30 P.M. and registered a case in Crime No. 42 of 1991 under Secs.498-A and 309, I.P.C. Ex.P.11 is the printed first information report prepared by him. He despatched the original first information to the Magistrate and copies to the Inspector of Police, Special Branch. On 1.5.1991 at 3.30 p.m. he arrested the appellant at Peria Kalapet and produced him before the Inspector at about 3.45 P.M. At 04.30 hrs, on 28.4.1991, Vasuki succumbed to the injuries and P.W.11 received the death intimation, Ex.P.3. Then he altered the Sec. as 304-B, I.P.C. Ex.P.12 is the report prepared by P.W.11. P.W.11 inspected the scene of occurrence at 7.30 A.M. on 28.4.1991 and prepared the observation mahazar, Ex.P.5 in the presence of the witnesses and seized M.O.1, the kerosene lamp, M.O.2, small pieces of burnt petticoat, M.O.3 series (2 in number) broken piece of mud pot and Ex.P.13, guarantee card issued by the National Jewellery bearing the date 6.1.1991 under cover of mahazar, Ex.P.6. He recorded the statements of P.Ws.1, 2, 4, 5, 6 and 7. On a requisition from the Sub-Divisional Magistrate on 28.4.1991, P.W.9, the Tahsildar, Pondicherry conducted inquest over the dead body of Vasuki as the death took place within seven years of the marriage. He went to the Government Hospital, Pondicherry and examined P.W.4, P.W.5 Kuppusamy father of the deceased, the accused and another Sellappan and prepared the inquest report, Ex.P.10. According to P.W.9, the death of Vasuki was due to the harassment by the husband of the deceased and not bringing the jewel from her parents. Thereafter, he sent his requisition to the R.M.O. for conducting post-mortem on the dead body. Ex.P.15 is the report sent by P.W.9 to the Superintendent of Police. 3. P. W.8 conducted post-mortem on the body of Vasuki on 28.4.1991 and found the following: External Examination: Burn injuries found all over the body, sparing infra-umbilical region and right upper thigh are present. Extent of burns 90%. They are ante-mortem burns. Other organs are congested. Stomach contained yellow liquid 10 ml. No specific shell, mucose normal uterus normal, in size. Viscera revealed no poison. Ex.P.7 is the Post-Mortem report. Ex.P.8 is the Chemical Examiner's Report and Ex.P.9 is the final opinion given by P.W.8. According to P.W.9, Vasuki died of shock due to the burns. They are ante-mortem burns. Other organs are congested. Stomach contained yellow liquid 10 ml. No specific shell, mucose normal uterus normal, in size. Viscera revealed no poison. Ex.P.7 is the Post-Mortem report. Ex.P.8 is the Chemical Examiner's Report and Ex.P.9 is the final opinion given by P.W.8. According to P.W.9, Vasuki died of shock due to the burns. P.W.12, the Superintendent of Police (North) Pondicherry took up further investigation on 1.5.1991. The accused was arrested on 1.5.1991 by P.W.10 and he was sent for remand on the next day. P.W.12 recorded the statement of P.W.3. After completing the investigation P.W.12 laid chargesheet against the accused on 17.9.1991 under Secs.499-A and 304-B, I.P.C. 4. The Third Additional Sessions Judge, Pondicherry framed only one charge against the accused under Sec.304-B clause (2), I.P.C. When the appellant was questioned regarding the; incriminating circumstances that appeared against him in the evidence, he had stated the same is not true and that he has not committed the offence. According to him, he and the deceased loved each other and though there was resistance from his in-laws side, later they reconciled and the marriage was registered at Cuddalore. After giving birth to a female child, his wife had mental shock and since then she used to have abnormal behaviour. At times, she had thrown the child also. Because of her mental derangement she had committed suicide. He never demanded five sovereigns of gold jewels from his wife or in-laws. 5. On a consideration of the evidence placed before him, the learned third Additional Sessions Judge, Pondicherry concluded the prosecution has proved the charge against the accused beyond reasonable doubt, convicted and sentenced him as above. 6. The point for consideration is whether the evidence on record is not sufficient to connect the accused with the crime and the learned Sessions Judge has committed an error in finding the accused guiltye 7. The Point: The learned counsel for the appellant vehemently contended except Ex.P.2, the dying declaration, there is no other acceptable evidence to connect the appellant with the crime. According to the learned counsel, the dying declaration Ex.P.2 had not been recorded by a Magistrate, but by P.W.10, the Sub-Inspector of Police and the same has no evidentiary value. The Point: The learned counsel for the appellant vehemently contended except Ex.P.2, the dying declaration, there is no other acceptable evidence to connect the appellant with the crime. According to the learned counsel, the dying declaration Ex.P.2 had not been recorded by a Magistrate, but by P.W.10, the Sub-Inspector of Police and the same has no evidentiary value. P.Ws.4 and 5, the mother and grand father of the deceased has not supported the case of the prosecution in the cross-examination that the appellant demanded five sovereigns of jewels and he was harassing her and picked up quarrel often soon before her death, as required under sub-clause (1) of Sec. 304-B, I.P.C. Pointing out the version of panchayatdars before the Tahsildar, P.W.9 that they had no suspicion in the death of Vasuki and that except verbal quarrel, the appellant never asked for more jewels, it was argued that there was no demand at any time by the appellant to bring five sovereigns of jewels. However, it is noticed from Ex.P.15 report that the panchayatdars stated on many a time Vasuki came to her parents’ house and told them that her husband demanded more jewels. Ultimately in the report Ex.P.15, P.W.9 had clearly stated there was harassment on the part of the appellant, which ultimately compelled the deceased to commit suicide, which he had reiterated in his deposition also before the Court. In the dying declaration, Ex.P.2, the deceased had clearly stated that there used to be frequent quarrel between her and her husband and he used to harass her as to why she has not brought gold jewels and also used to beat her. He would also say very often, “go and die” and that on the date of occurrence she went to Cooliemedukuppam to her mother's house and after return to the house, her husband demanded whether she had brought the five sovereigns of jewels. When she replied in the negative, he told her, her parents have promised to give five sovereigns of jewel and why she has not brought the same and abused her. Unable to bear the harassment, she poured kerosene at 8.30 P.M. and set her ablaze. When she replied in the negative, he told her, her parents have promised to give five sovereigns of jewel and why she has not brought the same and abused her. Unable to bear the harassment, she poured kerosene at 8.30 P.M. and set her ablaze. It appears from the evidence of P.W.10 that he went to the hospital to record the statement of Vasuki, and on seeing that the condition of Vasuki was very serious, he reasonably thought that she will die soon and therefore, recorded the dying declaration in the presence of the doctor and the doctor, P.W.2 had certified that Vasuki was conscious and she was in a fit condition to make the statement. The doctor also has said that in his presence, P.W.10 recorded the statement. So far as the evidentiary value of Ex.P.2, it is suffice to refer the following two decisions: Jai Prakash v. State of Haryana , (1998)6 Supreme 212 and Ramawati Devi v. State of Bihar , A.I.R. 1983 S.C. 164. In the first decision, in paragraphs 3, 4 and 6, the following observations have been made by the Supreme Court of India: “(3) It was urged by the learned counsel for the appellant that no reliance whatsoever should have been placed upon the said dying declaration as it was recorded on 7.10.1990; and even though Sushma survived till 11.10.1990, no further attempt was made to get her regular dying declaration recorded by a Magistrate. In our opinion, the submission made by the learned counsel is misconceived. As Sushma was taken to the hospital with burns, the hospital authorities informed the police. The police after going there, recorded the statement of Sushma. It was then in the nature of a complaint and was later treated as a dying declaration because she died. Whether police could have recorded a regular dying declaration or not was a matter for cross-examination of the Investigating Officer. In absence of such cross-examination, it cannot have any bearing on the correctness or otherwise of the statement recorded on 7.10.1990. The said statement was sent to the police station at about 1.30 P.M. and the FIR was recorded at 3.30 P.M. A copy of the said FIR was received by the Magistrate on 8.10.1990 at about 10.00 A.M. Therefore, there is no scope for doubting genuineness of that statement in this case. The said statement was sent to the police station at about 1.30 P.M. and the FIR was recorded at 3.30 P.M. A copy of the said FIR was received by the Magistrate on 8.10.1990 at about 10.00 A.M. Therefore, there is no scope for doubting genuineness of that statement in this case. We are emphasising this aspect because it was also contended by the learned counsel that the dying declaration, Ex.PJ was not her statement at all. Only a vague suggestion was made to the Investigating Officer and to the Doctor that no statement at all was made by the deceased. This suggestion was denied by both of them. There is nothing on the basis of which it can be said that there is any substance in that suggestion. (4) It was next contended that no weight ought to have been given to that statement as it was not attested by the doctor and no endorsement was made thereon to show that the statement was made by Sushma while she was mentally and physically fit to make such a statement. This submission is also misconceived as it proceeds on an erroneous assumption that what was recorded by the police officer was a dying declaration, As he recorded a complaint, it was not necessary for him to keep any doctor present or obtain any endorsement from him. (6) It was next contended by the learned counsel that the statement was not recorded in question and answer form and therefore no weight should attached to it. It also deserved to be rejected as misconceived because a complaint is required to be recorded in question and answer form even though there is a possibility that later on it might be treated as a dying declaration. This dying declaration receives corroboration from the site inspection report and also by the application-Ex.PL referring to the compromise arrived at on the previous day”. This dying declaration receives corroboration from the site inspection report and also by the application-Ex.PL referring to the compromise arrived at on the previous day”. In the second decision reported in Ramawati Devi v. State of Bihar , A.I.R. 1983 S.C. 164 the Supreme Court has distinguished Keshav Ganga ram Navuge v. State of Maharashtra , A.I.R. 1971 S.C. 953 and K. Ramadoss Shenoy v. The Chief Officer, Town Municipal Council, Udipi , A.I.R. 1976 S.C. 994 and observed in paragraph 7 as follows: “(7) In our opinion neither of these two decisions relied on by the appellant is of any assistance in the facts and circumstances of this case. These decisions do not lay down, as they cannot possibly lay down, that a dying declaration which is not made before a Magistrate, cannot be used in evidence. A statement, written or oral, made by a person who is dead as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question, becomes admissible under Sec.32 of the Evidence Act. Such statement made by the deceased is commonly termed as dying declaration. There is no requirement of law that such a statement must necessarily be made to a Magistrate. What evidentiary value or weight has to be attached to such statement, must necessarily depend on the facts and circumstances of each particular case. In a proper case, it may be permissible to convict a person only on the basis of a dying declaration in the light of the facts and circumstances of the case. In the instant case, the dying declaration has been properly proved. It is significant to note that in the course of cross-examination of the witness proving the dying declaration, no questions were put as to the state of health of the deceased and no suggestion was made that the deceased as not in a fit state of health to make any such statement. It is significant to note that in the course of cross-examination of the witness proving the dying declaration, no questions were put as to the state of health of the deceased and no suggestion was made that the deceased as not in a fit state of health to make any such statement. The doctor's evidence also clearly indicates that it was possible for the deceased to make the statement attributed to her in the dying declaration in which her thumb impression had also been affixed,” In the case on hand on getting the information, Ex.P.1, P.W.1 rushed to the hospital, recorded the statement, Ex.P.2 in the presence of the doctor, P.W.2 who had clearly certified that Vasuki was conscious and she was in a fit condition to make the statement. After recording the statement, P.W.10 had obtained the thumb impression of the deceased, returned to the police station, registered a case and sent the original first information report, and the dying declaration to the Court without any delay. I am of the view that nothing has been established in the cross-examination to doubt Ex.P.2. The Court is concerned only with the substance and not the form in which the dying declaration was recorded. The evidence of P.W.11 coupled with the rough sketch and the observation mahazar, Ex.P.6 reveals that kerosene lamp was found in the place of occurrence, which corroborates the fact that Vasuki doused herself with kerosene and set her ablaze and sustained 90% burn injuries. 8. I am bound by the observations made in the above two decisions and held that the dying declaration Ex.P.2 is true, reliable and there is no reasons to doubt the genuineness of the same. In my opinion, the decisions relied on by the learned counsel for the appellant reported in Thurukanni Pompiah v. State of Mysore , A.I.R. 1965 S.C. 939; Kanchy Ramchander and Munnu Raja v. The State of M.P. , A.I.R. 1976 S.C. 2199 have no application to the facts of the present case. The objection that P.Ws.4 and 5 have not supported the case of the prosecution in the cross-examination, namely, there was demand from the appellant for dowry soon before the death of Vasuki in my opinion, has no substance. The objection that P.Ws.4 and 5 have not supported the case of the prosecution in the cross-examination, namely, there was demand from the appellant for dowry soon before the death of Vasuki in my opinion, has no substance. Both P.Ws.4 and 5 have clearly and categorically stated in the Chief-examination that Vasuki used to come to their house and tell them that her husband was pressing for the jewels promised as dowry. A court has to read the evidence as a whole and reach the conclusion on the probabilities. Therefore, the omission in the cross-examination will not alter the situation. The objection regarding the inconsistency that in Ex.P.2 Vasuki had stated that she had gone to her mother's house whereas in the evidence, it is stated that she went to her grand father's house, I am of the view the same has no merit. It is clearly established in the evidence that the grand father alone is living at Cooliamedukuppam, whereas the mother is living elsewhere and it is clearly stated in Ex.P.2 by Vasuki that she went to Cooliemedukuppam which clearly indicates she went to her grandfather's house on the date of the occurrence. 9. At this juncture, the learned Public Prosecutor invited that attention of this Court to Sec. 113-B of the Indian Evidence Act and submitted even on the date of occurrence there was demand by the appellant for dowry, which is certainly a demand soon before her death and, therefore, this Court, has to invoke the presumption under that Section, Sec.113-B of the Indian Evidence Act reads as follows: “113-B. Presumption as to dowry death: When the question is whether a person has caused the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. Explanation-For the purposes of this section “dowry death” have the same meaning as in Sec.304B of the Indian Penal Code.” (43 of 1986) It is seen that as per the dying declaration the appellant demanded five sovereigns of jewels immediately on the return of the deceased from her grand father's house and when she replied in the negative, he abused her and also told her to go and die, which is certainly harassment soon before the death. Therefore, I find that the submission made by the learned Public Prosecutor that this Court has to invoke the presumption under Sec.113-B of the Indian Evidence Act is correct and the said presumption has not been rebutted by the appellant. 10. Lastly, the objection that Vasuki was suffering from mental illness and because of that she had committed suicide, in my opinion, has to be rejected. P.W.9, the Tahsildar had clearly stated in his report soon after Vasuki gave birth to a female child she was suffering from mental illness for some time and thereafter she became normal and the same is evident from the hospital record he had perused. It is relevant to point out that clinical mental illness is different from legal mental illness as per law and the appellant has not discharged the burden that she was suffering from legal mental illness. 11. For the foregoing reasons, I am of the view that the learned Sessions Judge is correct in convicting that accused. So far as the sentence of nine years is concerned, I am of the opinion the same requires modification, as the appellant is having a female child and the same will become an orphan, if he is directed to serve the full period of nine years in jail. In my opinion, ends of justice will be met if the sentence is reduced to seven years rigorous imprisonment instead of nine years. 12. In the result, the conviction imposed by the learned Sessions Judge is confirmed and the appellant is sentenced to undergo rigorous imprisonment for a period of seven years instead of nine years as ordered by the learned Sessions Judge. Except for the modification regarding the sentence, the appeal is dismissed, the appellant is on bail. He shall surrender to his bail bonds. Except for the modification regarding the sentence, the appeal is dismissed, the appellant is on bail. He shall surrender to his bail bonds. The learned Third Additional Sessions Judge, Pondicherry shall issue a non-bailable warrant, secure the presence of the accused and commit him to prison to undergo the unexpired portion of the sentence. B.S.-----Appeal dismissed.