Judgment ( 1. ) THIS appeal arises from the judgment dated 6/12/1994 passed by Additional Sessions Judge, Harda in S. T. No. 182/93 whereby each one of the appellants was convicted under Section 304-B of the IPC and sentenced to undergo R. I. for 10 years. ( 2. ) PROSECUTION case, in brief, may be stated as under -Marriage of Maya Bai (since deceased) was solemnized (i)with Jamna Prasad the appellant no. 1 (for short A1), the son of appellant no. 2 Prem Bai (hereinafter referred to as a2) in the year 1988. In the wedlock, they were blessed with a girl child named as Aarti, who also succumbed to the burn injuries sustained in the same transaction that led to untimely death of her mother. At the relevant point of time, they were residing in a house situated in Shukrawara Mohalla, Timarni. (ii) Ever since her marriage, Maya Bai had persistently been subjected to cruelty and harassment by both the appellants due to non-satisfaction of demand for a cash amount of Rs. 20,000/- in dowry. Ultimately, on 18/3/1993 at 5. 30 p. m. , she and her 2-year-old daughter were brought to the Hospital at Timarni in a severely burnt condition. Dr. R. B. Patel (PW3) immediately informed the police by way of memo (Ex. P-8 ). After a preliminary examination, he referred both of them to the civil Hospital at Harda for necessary treatment. However, Aarti died on the same day whereas Maya Bai breathed her last on 19/3/1993 at 6 a. m. Her dying declaration (Ex. P-10) was recorded by the Executive magistrate G. L. Daheriya (PW5) on 18/3/93 at 9. 10 p. m. (ii) After inquest proceedings, dead body of Maya Bai was sent to the hospital for post-mortem. A panel of doctors comprising Dr. V. S. Morya and Dr. R. Garg conducted it. In their opinion, cause of Maya Bais death was syncope due to extensive burns. They further noticed that Maya Bai was carrying pregnancy of about 8 weeks. ( 3. ) IN the light of the findings of the marg inquiry, SHO K. K. Verma (PW7) recorded the FIR (Ex. P-12) to register a case under section 304-B of the IPC. Upon completion of the investigation, charge sheet was filed against the appellants before the JMFC, harda who committed the case to the Court of Session for trial. ( 4. ) IN the light of the findings of the marg inquiry, SHO K. K. Verma (PW7) recorded the FIR (Ex. P-12) to register a case under section 304-B of the IPC. Upon completion of the investigation, charge sheet was filed against the appellants before the JMFC, harda who committed the case to the Court of Session for trial. ( 4. ) THE appellants abjured the guilt and pleaded false implication. According to them, only Maya Bais mother and brother had come forward to speak against them simply because she had met with an untimely death in her matrimonial home. ( 5. ) THE prosecution sought to prove the charge by examining as many as 8 witnesses including Kaluram (PW1), Sona Bai (PW2) and mahesh (PW6) respectively elder brother, mother and neighbour of the deceased. The defence summoned one Kailash to substantiate the assertion that A1 had immediately apprised his in-laws residing at seoni Malwa of the incident. ( 6. ) ON a critical appraisal of the entire evidence on record, the learned trial Judge, for the reasons recorded in the impugned judg-ment, found the appellants guilty of the offence charged with and sen-tenced them as indicated hereinabove. ( 7. ) THE legality and propriety of the impugned conviction have been assailed mainly on two grounds - (i) Absence of evidence as to dowry demand. (ii) Incredibility of the dying declaration. However, learned Dy. Govt. Advocate, while making reference to relevant pieces of incriminating evidence, has contended that the conviction is well merited. ( 8. ) BEFORE proceeding to enter into the merits of the rival contentions in a proper perspective, it would be necessary to first advert to the medical evidence on record. ( 9. ) DR. R. B. Patel (PW3), while proving the existence of superficial burns on upper half of the body including buttocks, back, abdomen, both the upper arms, whole face and hairs, testified that smell of kerosene was coming out from the hairs and upper part of the body. According to him, at the time of the examination conducted at 5. 30 p. m. on 18/3/1993, Maya Bai was irritable and was repeating her name only but pronunciation was not clear. He further described the appearances of the injuries received by Aarti as under :-"superficial burns all over the body, skin is peeled off the body along with the face and head. 30 p. m. on 18/3/1993, Maya Bai was irritable and was repeating her name only but pronunciation was not clear. He further described the appearances of the injuries received by Aarti as under :-"superficial burns all over the body, skin is peeled off the body along with the face and head. Kerosene smell from the body" In the opinion, the injuries were sustained within 2 hours of the examination. Although, in his sworn testimony, he came forward to characterize the burns as suicidal or homicidal yet, on being confronted with the corresponding omission in the respective report (Ex. P-4), he. ,. . . . . . deviated from the earlier opinion and admitted that it was not possible to conclude that the burn injuries were not accidental in nature. ( 10. ) AUTOPSY Surgeon Dr. Ravi Garg (PW4) further affirmed that maya Bai had sustained burns to the extent of 58% only on the upper part of her body. In his opinion, cause of Maya Bais death was syncope due to extensive burns. However, he also did not rule out completely the possibility of an accident. ( 11. ) THE question as to what are the ingredients of the provisions of section 304-B of the IPC is no longer res integra. As explained by the apex Court in T. Aruntperunjothi v. State through SHO, pondicherry (2006) 9 SCC 467 , the essential constituents are - (i) That the death of the woman was caused by any burns or bodily injury or in some circumstances which were not normal; (ii) That such death occurs within 7 years from the date of her marriage; (iii) That the victim was subjected to cruelty or harassment by her husband or any relative of her husband; (iv) That such cruelty or harassment should be for or in connection with the demand of dowry; and (v) That such cruelty and harassment was made soon before her death. ( 12. ) OUT of these, the ingredient no. (ii) was clearly admitted by the appellants in their examination under Section 313 of the Code of criminal Procedure whereas the ingredient no. (i) was amply proved from the medical evidence. ( 13. ( 12. ) OUT of these, the ingredient no. (ii) was clearly admitted by the appellants in their examination under Section 313 of the Code of criminal Procedure whereas the ingredient no. (i) was amply proved from the medical evidence. ( 13. ) ADVERTING to the other ingredients, it may be seen that the incriminating evidence of Kaluram (PW1) and Sona Bai (PW2) to the effect that Maya Bai was persistently subjected to torture by both the appellants due to non-fulfillment of demand for a cash amount of rs. 20,000/- for starting a business did not inspire confidence for the following reasons - (i) Admittedly, marriage of Maya Bai was solemnized with A1 in a Samuhik Vivah Sammelan. (i) No complaint as to dowry harassment was made to police or any respectable members of the caste at any earlier point of time. (ii) Mahesh (PW6) who, at the relevant point of time, was living in the same locality, did not corroborate the allegation as to domestic cruelty. (iii) The so-called dying declaration (Ex. P-10) also did not reflect any dowry demand or harassment at the hands of A1 soon before Maya Bais death. ( 14. ) THIS apart, factum of a quarrel with A2 was revealed by Maya bai in answers to certain leading questions put forth by the Executive magistrate G. L. Daheriya (PW5 ). For a ready reference, these questions and corresponding answers (in vernacular) may be reproduced as under -. . . (Other Language Omited ). . . Before making these answers, Maya Bai had clearly disclosed that she had sustained the burn injuries while preparing tea, in an accident caused due to fall of kerosene Can. She further revealed that none of the appellants was present at the place of occurrence. ( 15. ) RECORDING of a dying declaration is a grave and solemn proceeding. It is the bounden duty of the Magistrate to ensure that no influence whether external or internal is brought to bear on the declarant and that he is not prompted or aided, in any way, in making the declaration. It is true that Rules and Orders (Criminal), though framed for guidance of Magistrates much before separation of judiciary from the executive, do not contain guidelines for recording of dying declaration but some of the instruction given for ensuring that a confession is free and voluntary may be gathered therefrom. It is true that Rules and Orders (Criminal), though framed for guidance of Magistrates much before separation of judiciary from the executive, do not contain guidelines for recording of dying declaration but some of the instruction given for ensuring that a confession is free and voluntary may be gathered therefrom. For example, the rule that anything in the nature of cross-examination must be avoided is squarely applicable to recording of dying declaration also. The proceedings should be so conducted that the declarant is as free from personal influence in emitting his declaration as he would be if he were giving evidence in a Court of law (See. Nem Singh v. Emperor AIR 1934 All 908 ). However, very tenor and spirit of the questions excerpted above clearly go to show that the Magistrate had not followed a correct procedure in recording the dying declaration with the result that it lost sanctity. ( 16. ) IN this view of the matter, learned trial Judge completely misdirected himself in placing reliance upon the dying declaration as an incriminating piece of evidence. ( 17. ) IT is true that a pregnant woman ordinarily would not commit suicide unless relationship with her husband comes to such a turn that she would be compelled to do so. But, this proposition is not of universal application and each case has to be determined in the light of its peculiar facts and circumstances. In a delicate human relationship like matrimony, the Judge has to see the probabilities of the case (A. Jayachandra v. Aneel Kaur (2005) 2 SCC 22 referred to ). ( 18. ) IN the case on hand, although it was proved that the untimely death of Maya Bai, who was carrying pregnancy of about 8 weeks, and her daughter Aarti, had occurred under suspicious circumstances within 5 years of her marriage with A1 yet, there was no other reliable evidence to suggest that the appellants had subjected Maya Bai to any form of cruelty as contemplated under Section 498-A of the IPC soon before her death. Thus, the ingredient nos. (iii) to (v) [above] as enjoined under Section 304-B of the IPC could not be held to be proved from the evidence on record. ( 19. Thus, the ingredient nos. (iii) to (v) [above] as enjoined under Section 304-B of the IPC could not be held to be proved from the evidence on record. ( 19. ) THE rebuttable presumption, under Section 113-B of the Indian evidence Act, is attracted only when the prosecution is able to establish all the ingredients of the offence of dowry death (Karnataka v. M. V. Manjunathegowda (2003) 2 SCC 188 relied on ). ( 20. ) TO sum up, on a re-appreciation of the entire evidence in the light of reasoning assigned by learned trial Judge, it can safely be concluded that the prosecution evidence was not sufficient to prove guilt of the appellants beyond a reasonable doubt. The appeal, therefore, deserves acceptance. ( 21. ) IN the result, the appeal is allowed. The impugned conviction and consequent sentence are hereby set aside. Instead, the appellants are acquitted of the offence. ( 22. ) THE appellants are on bail. Their bail bonds shall stand discharged. Appeal allowed.