Judgment ( 1. ) THIS criminal appeal under Section 374 (2) of the Code of criminal Procedure has been filed by the appellants being aggrieved by the impugned judgment, finding and sentence dated 30. 03. 1999 passed by II Additional Sessions Judge, Rewa in S. T. No. 154/96 whereby the appellants have been convicted under Sections 498-A and 306 of I. P. C. and sentenced to R. I. for 1 year with fine of Rs. 500/- in default of payment of fine R. I. for 3 months and R. I. for 3 years with fine of Rs. 1000/- in default of payment of fine R. I. for 6 months, each respectively. ( 2. ) PROSECUTION case in short is that on 23. 07. 1996 Ramsundar gautam submitted a written application to the officer in-charge of police station Baikunthpur to the effect that the marriage of his daughter Ratna was performed with Vishnushankar Shukla. Thereafter her second marriage was performed prior to one year of the incident. During this period she came to her maternal house 4-5 times and used to tell that her husband and father-in-law have illicit relations with her Jethani (wife of elder brother of her husband ). She used to carry her husband from her room and on objection she was subjected to cruelty. Prior to 10 days of this incident his elder son Prakash sent her to matrimonial house. On the day of incident at about 5:00 p. m. Shridhar Shukla came to him and said that his daughter has delivered a child, therefore, he went at Sirmaur Hospital where he saw her daughter in burnt condition. She was burnt totally below neck region but her hair of scalp were escaped. She died on 23. 07. 1996. Marg intimation was given by Shridhar Shukla on the basis of which marg No. 26/96 under Section 174 of Cr. P. C. was registered. On the basis of marg inquiry and written report of Ramsundar Gautam FIR was written whereby Crime no. 99/96 under Sections 498-A and 304-B, 34 of I. P. C was registered against the accused persons. Her dying declaration was recorded by Naib Tahsildar. Panchnama of dead body was prepared. On postmortem examination death of Ratna was found due to syncope as a result of extensive burn. Spot map was prepared. The statements of the witnesses were recorded. 99/96 under Sections 498-A and 304-B, 34 of I. P. C was registered against the accused persons. Her dying declaration was recorded by Naib Tahsildar. Panchnama of dead body was prepared. On postmortem examination death of Ratna was found due to syncope as a result of extensive burn. Spot map was prepared. The statements of the witnesses were recorded. After completing the investigation the charge sheet was filed in the court of Judicial Magistrate First Class, Rewa who committed the case to the Sessions Court for trial. ( 3. ) THE accused persons were charged under Section 498-A and 304b of I. P. C. They denied the guilt and claimed to be tried mainly contenting that they are innocent and have been falsely implicated. Prosecution examined as many as 9 witnesses the accused persons did not examine any witness in their defence. After appreciating the evidence trial Court found them guilty under Section 498-A and 306 of I. P. C. and sentenced thereunder as stated hereinabove in para No. 1 of this judgment. Being aggrieved by the impugned judgment, finding and sentence the instant appeal has been preferred on the grounds mentioned in the memo of appeal. ( 4. ) SHRI Jagatsher Singh, learned counsel for the appellants carried through the evidence recorded in the case and contented that the trial Court has not appreciated the evidence in proper perspective. The finding of guilt is erroneous which deserves to be set aside and the appellants are entitled for acquittal. ( 5. ) ON the contrary, Shri G. P. Singh, learned Deputy Govt. Advocate appearing on behalf of respondent/state supported the impugned judgment, finding and sentence mainly contending that prosecution has proved the case beyond reasonable doubt against the appellants. The trial Court has rightly convicted and sentenced the appellants hence does not call for any interference. ( 6. ) THE main point for consideration in this appeal is that whether the trial Court has committed any illegality in convicting and sentencing the appellants under Section 498-A and 306 of Indian Penal Code. ( 7. ) THE first contention of the learned counsel for the appellants is that Ratna Shukla caught fire accidentally while cooking food, therefore, her death is accidental and the court below has erred in holding her death suicidal. ( 8. ( 7. ) THE first contention of the learned counsel for the appellants is that Ratna Shukla caught fire accidentally while cooking food, therefore, her death is accidental and the court below has erred in holding her death suicidal. ( 8. ) ON perusal of record, it reveals that Naib Tahsildar, sirmaur recorded the dying declaration of the deceased but he has not been examined by the prosecution, therefore, the dying declaration is unexhibited. The appellants have also not made any efforts to call this witness. The result is that this is an unexhibited and unproved document. Ex. P-9 is the requisition sent by P. D. Tiwari, S. H. O. Police Station, Sirmaur to Naib Tahsildar for recording the dying declaration of Smt. Ratna Shukla. P. D. Tiwari has also not been examined by prosecution. On bare perusal of it, it reveals that P. D. Tiwari has put the date of 22. 07. 1996 below his signature which prima facie appears to be incorrect because no information regarding this incident was received by police on such date. The thumb impression was totally unwarranted on this requisition. Apart from it, this document also contains the certificate of Dr. Pandey that she was in a position to give dying declaration. This certificate is given at 12. 17 p. m. on 23. 07. 1996. It was not obligatory on the part of doctor to give such certificate in such requisition. It ought to have been given on dying declaration which is lacking in this case. Under these circumstances, requisition letter (Ex. P-9) seems to be an antedated document. ( 9. ) ON perusal of so called dying declaration it reveals that it was recorded at 12. 30 p. m. on 23. 07. 1996 whereas Shridhar shukla who is the nephew of appellant Rammani Shukla intimated to the police that the dead body of Ratna Shukla is laying in C. H. C. Sirmaur and this information was given at 8. 10 a. m. on that date therefore no such dying declaration might have been recorded at 12. 30 p. m. by Naib Tahsildar. Assuming that he recorded such dying declaration even then it was not properly recorded because it was not in the question-answer form. It is not shown whether Ratna Shukla affixed her right or left thumb impression. It is not indicated before whom thumb impression was taken. 30 p. m. by Naib Tahsildar. Assuming that he recorded such dying declaration even then it was not properly recorded because it was not in the question-answer form. It is not shown whether Ratna Shukla affixed her right or left thumb impression. It is not indicated before whom thumb impression was taken. It does not give true account of the incident and it was not made voluntarily, therefore, no reliance could be placed on such unexhibited and unproved dying declaration. ( 10. ) SHRIDHAR Shukla who gave marg intimation has not been examined hence the contents of marg intimation not proved. As the incident is of about 1. 00 a. m. on 23. 07. 1996 there was no question of cooking the food. Since Shridhar shukla is the nephew of appellant Rammani Shukla, therefore, he has incorrectly informed the police that she caught fire accidentally. The question is that if Smt. Ratna Shukla caught fire accidentally then why these appellants did not inform such fact to the police. Why they themselves did not report the matter to the police. It makes their conduct doubtful. ( 11. ) DR. R. K. Ojha (PW-6) who conducted postmortem examination has found that her entire body was burnt. At some places their were second and third degree burns. Sooty carbon was present on the chest and lower lumber region and there was smell of kerosene. At face there was burns in first degree but hair of scalp were escaped. The burns were anti-mortem in nature. According to his opinion, the death was due to syncope as a result of extensive burns. Postmortem report is Ex. P-10. In cross examination, he has admitted that the smell may be due to burning by kerosene stove. It is evident that the smell of kerosene was found in her dead body. In case of Saree catching fire from the flame of the stove no such smell was possible. There is no evidence that the stove was burst and kerosene spread and Saree of deceased caught fire. In absence of such evidence, it cant be accepted that the smell was caused by burning with a stove. It is apparent that she did not catch fire accidentally, therefore, the contention of the learned counsel for the appellants is not acceptable that her death was accidental. In absence of such evidence, it cant be accepted that the smell was caused by burning with a stove. It is apparent that she did not catch fire accidentally, therefore, the contention of the learned counsel for the appellants is not acceptable that her death was accidental. The court below after appreciating the evidence arrived at the conclusion that her death was suicidal. This finding prima facie appears to be correct. ( 12. ) THE next contention of the learned counsel for the appellants is that it has not been proved that Ratna died within the span of 7 years of her marriage therefore, presumption under Section 113a of the evidence act can not be drown. ( 13. ) RAMSUNDER Gautam (PW-1), Kiran Gautam (PW-2) and prakash Kumar Gautam (PW-4) have stated in one voice that the marriage of Ratna Shukla was performed in February 1990 and the second marriage was performed after 5 years of marriage and before one year of this incident. The suggestive questions have been put to these witnesses that the marriage was performed on 17. 03. 1989 but none of the witnesses has admitted this fact. No any other evidence has been adduced to establish this fact. Thus, there is nothing to disbelieve the statements of the parents of deceased that the marriage was performed in the year 1990 and thereafter the second marriage was performed prior to one year of this incident. Smt. Ratna Shukla died on 23. 07. 1996. Her death is within 7 years of her marriage on account of burns in her in-laws house. The evidence has been adduced on behalf of the prosecution that the appellants used to demand motor-cycle and harass the deceased for not fulfilling such demand. Ramsundar Gautam (PW-1), Kiran Gautam (PW-2), Prakash kumar Gautam (PW-4) and Bhagwandeen (PW-8) all have given evidence in this regard. Though the court below has not found proved this fact, however, there is ample evidence on record that Ratna used to tell her mother that her husband and father-in-law were having illicit relation with her Jethani and on her objection she was beaten and subjected to cruelty. Ramsundar Gautam (PW-1) has mentioned this fact in written report Ex. P-1 which was submitted on the day of incidence. Kiran Gautam (PW-2) mother of the deceased has given detailed evidence in this regard. Ramsundar Gautam (PW-1) has mentioned this fact in written report Ex. P-1 which was submitted on the day of incidence. Kiran Gautam (PW-2) mother of the deceased has given detailed evidence in this regard. There is no question to disbelieve the statements of these witnesses. Thus, by the evidence of these witnesses, it is established that the deceased was subjected to cruelty by these appellants on this count. ( 14. ) SECTION 113a of the Indian Evidence Act runs as follows:- "113a. Presumption as to abetment of suicide by a married woman.-- When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. " ( 15. ) SINCE Ratna Shukla died within the span of seven years of her marriage and it has been proved that she was subjected to cruelty by these appellants hence the presumption under Section 113a of Indian Evidence Act may be drawn. The appellants have totally failed to rebut this presumption, therefore, it is presumed that the suicide of ratna Shukla was abetted by the appellants. Thus the finding of guilt of appellants under Section 306 IPC is not erroneous. ( 16. ) THE next contention of the learned counsel of the appellants is that the trial Court committed an error in holding the guilt of appellants without framing charge under section 306 of I. P. C. ( 17. ) IT is fact that the appellants were charged under section 304-B of I. P. C. also but the trial Court acquitted them from this charge however convicted under Section 306 of i. P. C. ( 18. ) IN the case of Hira Lal vs. State (NCT of Delhi) AIR 2003 SC 2865 , the Apex Court held that the accused was charged u/s. 304-B and no charges u/s. 306 were framed but guilt of accused persons u/s. 304b was not proved. ) IN the case of Hira Lal vs. State (NCT of Delhi) AIR 2003 SC 2865 , the Apex Court held that the accused was charged u/s. 304-B and no charges u/s. 306 were framed but guilt of accused persons u/s. 304b was not proved. It was held that even if no charges were framed but accused could be convicted u/s. 306/498-A as cruelty is common essential to both Ss 304b and 498a. The present case is squarely covered by the case of Hira Lal. Hence the trial Court has not committed any illegality in convicting the appellants under section 306 of I. P. C. ( 19. ) LEARNED counsel for the appellants further submitted that the offence under Section 498-A IPC has not been proved because there is no positive evidence regarding cruelty. ( 20. ) SECTION 498-A of I. P. C. runs as follows:- "498a. Husband or relative of husband of a woman subjecting her to cruelty.-- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation- For the purpose of this section, "cruelty" means- (a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health whether mental or physical) of the woman; or (b) Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her meet such demand. " ( 21. ) SO far as the present case is concerned, the evidence has been brought on record that deceased used to object regarding the illicit relationship of her husband and father-in-law with her Jethani Meera Devi and on account of which they used to harass her. She was in the constant mental pressure which drove her to commit suicide. Thus it is proved by positive evidence that she was subjected to cruelty. ( 22. She was in the constant mental pressure which drove her to commit suicide. Thus it is proved by positive evidence that she was subjected to cruelty. ( 22. ) THUS the finding of the court below regarding the guilt of the appellants under Section 498-A and 306 of I. P. C. is proper and does not call for any interference. ( 23. ) SO far as sentence is concerned, there is no mitigating circumstances to reduce the sentence. It is evident that Ratna shukla was carrying full term pregnancy. They did not take any step to save her from burning, therefore, looking to their conduct no reduction in the sentence is called for. This appeal is meritless and deserves to be dismissed. ( 24. ) CONSEQUENTLY, this appeal fails and is dismissed accordingly. The appellants are on bail. Their bail bonds are cancelled. They are directed to surrender before C. J. M. Rewa on 11. 09. 2009 to serve out the remaining part of the sentence.