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2012 DIGILAW 238 (CHH)

GAUTAM CHATTERJI v. STATE OF M. P.

2012-09-17

PRITINKER DIWAKER

body2012
JUDGMENT : PRITINKER DIWAKER, J. 1. This appeal has been preferred against the judgment and order dated 20.11.1996 passed by Additional Sessions Judge, Durg, in Sessions Trial No. 131/1996 convicting the accused/appellants u/s 498-A & 304-B IPC and sentencing each of them to undergo rigorous imprisonment for ten years u/s 304-B only. In the present case the name of the deceased is Sangeeta wife of accused/appellant No. 1 herein namely Gautam Chatterji. Their marriage had taken place on 29.01.1994 and on 19.12.1994 the deceased suffered 80% burn injuries and succumbed to the same on 20.01.1995. Accused/appellant No. 2 was the father-in-law of the deceased whereas accused/appellant No. 3 is mother-in-law of the deceased. During pendency of this appeal accused/appellant No. 2 has expired. On 19.12.1994 the deceased was hospitalized after suffering 75% burn injuries. On 20.12.1994 case u/s 309 IPC was registered against the deceased vide Crime No. 587/94 and after investigation of the said case on 20.01.1995 FIR Ex. P/25 was registered against the accused persons u/s 498-A IPC. Deceased was medically examined vide Ex. P/12 by Dr. Harendra Shah (PW-8) and her dying declaration (unexhibited) was recorded on 20.12.1994. Deceased died on 04.02.1995 and the offences under Sections 498-A and 304-B IPC were registered against the accused persons. After investigation, charge sheet was filed against them on 25.03.1995 for the said offences. 2. In support of its case, prosecution has examined 14 witnesses. Statements of the accused/appellants were also recorded u/s 313 of the Code of Criminal Procedure in which they denied the charge levelled against them and pleaded their innocence and false implication in the case. This apart one defence witness namely Mahadev (DW-1) has also been examined by the defence in support of its case. 3. After hearing the parties, the Court below has convicted and sentenced the accused/appellants as mentioned in paragraph No. 1 of this judgment. During the pendency of this appeal, accused/appellant No. 2 has expired and therefore this appeal would be only in respect of accused/appellants No. 1 & 3. 4. Counsel for the accused/appellants submits that dying declaration of the deceased was though recorded on 20.12.1994 yet deliberately the same was not filed along with the charge sheet as it was in favour of the accused persons and ultimately on intervention of the High Court copy of the said dying declaration was served to the accused/appellants. 4. Counsel for the accused/appellants submits that dying declaration of the deceased was though recorded on 20.12.1994 yet deliberately the same was not filed along with the charge sheet as it was in favour of the accused persons and ultimately on intervention of the High Court copy of the said dying declaration was served to the accused/appellants. According to him, as per the dying declaration the deceased suffered burn injuries on account of accident when she had gone to extinguish the earthen lamp. He submits that though the said dying declaration is not exhibited, as the same is in favour of the accused persons it can always be used by them. In support of his submission reliance is placed on the decision of Madhya Pradesh High Court in the matter of Lallu Singh Samgar Vs. State of M.P., (1996) MPLJ 452 in the matter of Bharat Vs. State of Madhya Pradesh, (1992) CriLJ 3218, in the matter of Shatrughan and Another Vs. State of Madhya Pradesh, (1993) CriLJ 120 and in the matter of Bhanbgwantibai Vs. State of M.P. 2002(5) MPIIT 346. He submits that the incident had taken place on 19.12.1994 whereas the deceased died on 04.02.1995 and though she survived for more than 45 days her case diary statement has not been recorded by the prosecution and that itself shows that the death was accidental one. He submits that there is no evidence on record to show that soon before the death the deceased was subjected to cruelty by the accused persons and unless this fact is established by the prosecution, the accused/ appellants cannot be convicted u/s 304-B IPC. In support of this submission he placed his reliance on the decision of the Supreme Court in the matter of Harjit Singh Vs. State of Punjab, (2006) 1 SCC 463 as also in the matter of Sharad Birdhichand Sarda Vs. State of Maharashtra, (1984) 4 SCC 116 . He submits that in the case in hand the only evidence led by the prosecution is of the close relatives of the deceased i.e. mother, father and brother of the deceased and therefore the same is required to be examined with great care and caution. State of Maharashtra, (1984) 4 SCC 116 . He submits that in the case in hand the only evidence led by the prosecution is of the close relatives of the deceased i.e. mother, father and brother of the deceased and therefore the same is required to be examined with great care and caution. He submits that there are serious contradictions and omissions in the statements of the witnesses made in the Court if compared to the previous statements and that while deposing in the Court the relatives of the deceased have exaggerated their version. He submits that from the FIR (Ex. P-25) it appears that it was registered on the basis of the statement of the witnesses but those statements have not been filed along with the charge sheet which goes to show that earlier statements made by the witnesses have been deliberately concealed by the prosecution for the simple reason that they were in favour of the accused/appellants and therefore benefit of the same has to go to the accused/appellants as the entire prosecution story itself becomes doubtful. He submits that accused/appellant No. 1 was serving in the railways and residing at Vardha and therefore the question of his ill treating the deceased at Bhilai does not arise. 5. On the other hand, supporting the judgment impugned counsel for the respondent/State submits that non-filing of unexhibited dying declaration dated 20.12.1994 is of no help to the accused/appellants as they have failed to show as to what prejudice has caused to them by the same. He submits that even if the Executive Magistrate who recorded the dying declaration was not summoned by the prosecution as its witness, there was ample opportunity with the defence to call him as the defence witness. Witnesses namely Sunil Baran Rai (PW-1), Smt. Anuja Rai (PW-2) and Shri Sudeep Rai (PW-5) have categorically deposed as to the manner in which the deceased was subjected to cruelty by the accused/appellants. He submits that immediately after the engagement ceremony accused/appellants started demanding TV, Fridge, Cooler and in furtherance of the same they ill treated the deceased. According to the State counsel accused/appellants also used to beat the deceased as a result of which she decided to end her life. He submits that immediately after the engagement ceremony accused/appellants started demanding TV, Fridge, Cooler and in furtherance of the same they ill treated the deceased. According to the State counsel accused/appellants also used to beat the deceased as a result of which she decided to end her life. He submits that authenticity of the dying declaration is doubtful because according to it the deceased suffered accidental burn injuries while she was trying to extinguish the earthen lamp and further that smell of kerosene was coming from her clothes. He submits that the word "soon before death" has to be construed in the context of each and every case and in the present case the deceased was subjected to cruelty from the very beginning, it can be said that she was subjected to cruelty soon before death. He submits that minor contradictions and omissions in the evidence of Sunil Baran Rai (PW-1), Smt. Anuja Rai (PW-2) and Shri Sudeep Rai (PW-5) being trivial in nature are of no help to the accused/appellants. He submits that in the case of dowry death witnesses would be the relatives of the deceased only in the natural course and the chances of independent witnesses in such cases are very rare because the relations between the newly wedded couple are of very personal nature and are not to be disclosed to other persons. 6. Heard counsel for the parties and perused the material available on record. 7. Sunil Baran Rai (PW-1) - father of the deceased has stated in his evidence that marriage of his daughter was solemnized with the accused/appellant No. 1 namely Gautam Chatterji on 29.01.1994. After seeing his daughter in a Kali Baadi temple, accused/appellant No. 3 Bhokti Chatterji had asked her for her son. Thereafter, accused persons used to visit him everyday and after enquiring from other persons about the family background he gave his consent for the marriage of his daughter with accused/appellant No. 1. Just three days before the engagement ceremony the deceased/accused namely V.K. Chatterji i.e. the father-in-law of the deceased came to his office and told that he would be required to give Rs. 15,000 for marriage and before that no such demand was made. After consulting his friends he gave Rs. Just three days before the engagement ceremony the deceased/accused namely V.K. Chatterji i.e. the father-in-law of the deceased came to his office and told that he would be required to give Rs. 15,000 for marriage and before that no such demand was made. After consulting his friends he gave Rs. 12,000 and a gold chain at the time of engagement ceremony whereas watch, coat, pant and shoes were given to accused/appellant No. 1 at the time of engagement and other items to his relatives. On demand being made he had also given bed, almirah, dressing table and show case also. Ten days after the marriage his daughter made a request to him for installation of telephone in the house of the accused persons as was asked by them. He has stated that he informed his son-in-law that he did not have money and could not make arrangement for installation of telephone as he had already spent amount as per his capacity at the time of marriage. About 1 1/2 month after the marriage, deceased/accused came to his office and made a request to talk to him. After finishing his office work he went to Bhilai where accused/appellant No. 3 made a complaint that in the marriage color TV, cooler and fridge were not given. After about 1 1/2 month of marriage brother-in-law of his daughter came to his house and told his wife that deceased was of bad character and used to remain sick and thereby made a demand for the treatment expenses on which he gave him Rs. 2,000. He has stated that as per the custom he and his wife never used to go to the house of the deceased but his son used to go there. He has stated that after marriage the accused persons did not send the deceased to his house. He has stated that accused/appellant No. 1 was working in the railways department and was posted at Vardha and from time to time he used to visit Bhilai where the deceased, her brother-in-law, mother-in-law and father-in-law-were residing. Calling the deceased to be of bad character the accused/appellants are stated to have forced her for abortion. He has stated that accused/appellant No. 1 was working in the railways department and was posted at Vardha and from time to time he used to visit Bhilai where the deceased, her brother-in-law, mother-in-law and father-in-law-were residing. Calling the deceased to be of bad character the accused/appellants are stated to have forced her for abortion. When the accused persons tried to drop his daughter to his house, his son had gone to the house of accused persons to take her and at that time accused/appellant No. 3 had wiped off the vermillion from her forehead and sent her in a single pair of clothes with him after taking off her ornaments. When the deceased came to his house, she told that the accused persons used to drive her out of their house after subjecting her to beating. Thereafter, when he left for his office, in his absence accused/appellant No. 3 came to his house and after making a folded hand requested to his wife took the deceased with her and then she never sent her to his house. On being asked as to why the accused persons were beating her, the deceased told him that she was not aware of the reason for that. Then the deceased told him that she was being beaten for dowry and installation of telephone. When he visited the house of the accused/appellants, accused/appellant No. 3 told him that the deceased was of bad character and her habits were not good. Accused/ appellant No. 3 also told him that he had given nothing in marriage. This witness is then stated to have asked the accused persons not to beat his daughter. According to this witness, twice a week his son Sudip Rai (PW-5) used to visit the house of accused/appellants to know the well-being of his daughter and after returning from there he informed him that his daughter used to remain sad and her face had turned blackish. He also used to tell him that the accused persons were not permitting the deceased to meet him. According to this witness, a day before the birthday of the deceased i.e. on 24.11.1994 he and his son had gone to the house of the accused/appellants to bring her to their house and the deceased/accused had permitted them for the same and that at that time accused/appellants 1 and 3 were not at home. According to this witness, a day before the birthday of the deceased i.e. on 24.11.1994 he and his son had gone to the house of the accused/appellants to bring her to their house and the deceased/accused had permitted them for the same and that at that time accused/appellants 1 and 3 were not at home. According to this witness, at that time the deceased was very sad, her clothes were torn and she was surrounded by the accused/appellants. On reaching his house and being asked by him, the deceased told that her life was ruined as she was being taunted and subjected to beating by the accused/appellants. At that time, ear of the deceased was disfigured and on being asked she told him that her husband (accused/appellant No. 1) had twisted it off. She is also stated to have pleaded him for being saved. Then by consoling her, he again sent her to her matrimonial home along with his son who after getting back informed him that father-in-law and sister-in-law of the deceased were angry for the delay in sending her to her matrimonial home. On 25.12.1994 when he returned from Indore, at Durg railway station he came to know that his daughter had suffered burn injuries. Immediately after reaching home, he went to Sector - 9 hospital, Bhilai to see his daughter. In the hospital he met the accused persons and the deceased also who had suffered 85% burn injuries and it appeared to him that she had sustained the same with kerosene. According to this witness, the doctor had told him that smell of kerosene was coming from the body of the deceased. On being asked by the accused persons as to the cause of her receiving burn injuries, they have not told anything. 7 days prior to the date of her death the deceased had told him in the hospital that accused/appellants had subjected her to beating and they did not provide her food. She also told him that once the accused/appellants had also pushed her down of the stair-case as a result of which, she fell down and at that time the accused/appellants put something on her as a result of which her clothes caught fire. How she caught fire was not told by her. Thereafter, sister-in-law of the deceased came and poured water on her body and then she became unconscious. How she caught fire was not told by her. Thereafter, sister-in-law of the deceased came and poured water on her body and then she became unconscious. After the death of his daughter, notice of inquest Ex. P-1 was given and thereafter inquest was conducted vide Ex. P-2 and both these documents were signed by him and then the post-mortem examination was done on her body. This witness has stated that he did not lodge the report about the burnt condition of his daughter because at that time, his mental condition was not good and everything was done by his colleagues. He was not aware whether any such report was lodged by his colleagues. According to this witness, his son also did not lodge report as he was alone in the house. Being very busy in saving the life of the deceased, this witness too could not go for lodging the report. In paragraphs Nos. 23 to 28, 33 and 45 there appear to be material omissions in the statement of this witness. This witness has admitted that the deceased was forced for abortion by the accused/ appellants. In paragraph-30, he has stated that a day prior to the birthday of the deceased when he went to the house of the accused/appellants to take her, accused/appellant No. 1 was not there and father-in-law of the deceased told him that he had no objection if the deceased accompanied him and that he was informed by Dr. M.C. Jain and other persons who were on duty that when the deceased was brought to hospital, smell of kerosene was coming from her body and that she had suffered 85% burn injuries and therefore, she cannot be saved. However, he did not remember whether this fact was disclosed to the police at the time of recording of her statement. Various suggestions were given to this witness in paragraphs - 34, 41, 47, 48 and 49 but, all of them have been denied by him. In paragraph-43 of his evidence, this witness has admitted that no demand was made at the time of engagement of the deceased. Immediately thereafter, this witness has stated that accused persons had demanded Rs. 15,000/- at the time of engagement. In paragraph-50, this witness has stated that he was informed by the deceased that a gold chain was given to her when she first went to her in-law's house. Immediately thereafter, this witness has stated that accused persons had demanded Rs. 15,000/- at the time of engagement. In paragraph-50, this witness has stated that he was informed by the deceased that a gold chain was given to her when she first went to her in-law's house. This witness is stated to have attended the reception on 31st January, 1994 along with his family members. He has further admitted that after marriage, his daughter and son-in-law had visited his house and stayed there for 8 days as per the prevailing custom. He has admitted that immediately after marriage, the deceased appeared in some examination for getting job in the bank. Though he has denied the fact that the deceased was suffering from Asthma at the same time he has admitted that for the same disease, his daughter was admitted in the hospital on 06.04.1994. At that time, she was pregnant and on 12.04.1994, she was again hospitalized for the treatment of Asthma. This witness has expressed his ignorance that on account of the medicines meant for Asthma, her abortion had taken place. He has also expressed his ignorance that after the discharge of his brother on 15.04.1994, she was again admitted in the hospital on 20.04.1994 as she had started bleeding. He has also expressed his ignorance that his daughter was treated by Dr. Gupta and Dr. Mishra and in spite of all efforts, the abortion could not be avoided. Various suggestions were put to this witness in paragraphs-58 to 60 but they have been denied by him. In paragraph-61, this witness has stated that for the first time, he gave his statement to the police on 22.01.1995 and that from 25.12.1994, he was regularly visiting the hospital and that 29 days after his return from Indore, he has given his statement to the police for the first time but no report was lodged by him. In respect of the letters written by the deceased to her husband and showing love and affection to her husband, father-in-law and mother-in-law, he has stated that he was not aware whether they were written by his daughter. In the said letter, his daughter had mentioned that on account of Asthma, there was every possibility of her abortion. Smt. Anuja Rai (PW-2) - mother of the deceased has stated that marriage of her daughter was solemnized with accused/appellant No. 1 Gautam Chatterji on 29.1.1994. In the said letter, his daughter had mentioned that on account of Asthma, there was every possibility of her abortion. Smt. Anuja Rai (PW-2) - mother of the deceased has stated that marriage of her daughter was solemnized with accused/appellant No. 1 Gautam Chatterji on 29.1.1994. After seeing her daughter at Kalibadi temple, the accused/appellant No. 3 - Bhakti Chatterji had proposed for the marriage of accused/appellant No. 1 with her but at that time she did not say anything and after due consultation the marriage was settled. At the time of settlement of marriage no demand was made and at the time of engagement accused/appellant No. 3 had made a demand of Rs. 15,000, gold chain, watch etc. She however showed her inability to fulfill the said demand ultimately the marriage was settled at Rs. 12,000. As her husband was a heart patient, he was taken to Apollo hospital, Hyderabad for treatment. After marriage, her daughter came to her house and informed her that accused/appellant No. 3 showed her the photographs of some girls and said that those girls were more beautiful than her. According to this witness, her son-in-law (accused/appellant No. 1) was working in the railways and posted at Vardha whereas her daughter was living with her in-laws at Hudco (Bhilai). After marriage, deceased is stated to have visited her house two-three times and that her in-laws did not permit her for the same. In March 1994 she came to know that her daughter was pregnant and that accused/appellants No. 1 and 3 used to say that she was of bad character and the child belonged to someone else. Thereafter, accused/appellant No. 3 came to her house and told her that her daughter (deceased) was of bad character, whereupon she visited the house of accused persons to see her daughter where on seeing her she started weeping. In the month of March her daughter visited her house and stayed there for two-three days and at that time her physical condition was not good; she was very week and used to weep but did not tell her anything. Thereafter, accused/ appellant No. 3 came to her house and took her daughter (deceased) with her. At the time when her daughter was in her house, she had taken her to Dr. Shukla who had told her that she (deceased) was pregnant. Thereafter, accused/ appellant No. 3 came to her house and took her daughter (deceased) with her. At the time when her daughter was in her house, she had taken her to Dr. Shukla who had told her that she (deceased) was pregnant. The doctor is also stated to have told her that deceased should not be sent to her in-laws' house but accused/appellant No. 3 remained adamant and took her with her. When she had gone to Hudco to see her daughter, she (deceased) was crying and at that time accused/appellant No. 3 had told her that in the marriage cooler, TV and STD phone were not given and a fraud was played with them. Accused/ appellant No. 3 also told her that her daughter (deceased) was suffering from asthma though before marriage she was quite healthy. According to this witness, the accused/appellants used to harass and beat her daughter and that when her son used to visit to the house of accused/appellants to see her daughter, he told her that she (deceased) used to weep and that she had told him that accused/appellants used to beat her. On the occasion of birth day of the deceased, her husband and son had gone to invite the accused/appellants but it is only her daughter who had come to her house that too for half an hour but at that time she did not disclose anything. Her son had told her that accused/ appellants were beating the deceased and then he went and dropped her at the house of accused/appellants. On 16 December her son had gone to the house of the accused/appellants and on return he told her that deceased was weeping and requested him to take her with him or else they would kill her. When she was at Indore along with her husband, she received a telephonic information that deceased had suffered burn injuries and then they returned to Bhilai but as she was suffering from high blood pressure, she could not immediately go to the hospital but her husband had gone to see her and it is he who informed her that deceased had suffered 95% burn injuries. According to this witness, her daughter died because of burn injuries and that she was subjected to mental and physical cruelty by the accused/appellants. According to this witness, her daughter died because of burn injuries and that she was subjected to mental and physical cruelty by the accused/appellants. There appear to be certain contradictions and omissions in the statement of this witness which is clear form paragraphs 24, 28, 29 and 31 thereof. This witness has denied that the deceased was suffering from asthma and that she was treated by Dr. Usha Shukla. She has stated that she was not aware that for asthma the deceased was hospitalised on 6.4.1994. Dr. Swarn Singh (PW-3) is the witness to seizure of certain dowry items and list thereof vide Ex. P-3 and P-4. He has stated that accused/appellant No. 1 was working at Vardha and that he used to visit Bhilai during leave period. According to this witness, after marriage the deceased was living in the house of the accused/appellants and being neighbour he never heard that they were harassing or beating her for dowry. Sandip Das (PW-4) is the witness to seizure of marriage card, one receipt of ornaments made under Ex. P-5 and P-6. Likewise, the letter of the deceased addressed to her brother Sudip Rai was also seized and translated by this witness vide Ex. P-7. He has stated that the said letter was seized in his presence. Sudip Rai (PW-5) - brother of the deceased has stated that at the time of marriage no demand was made by the accused persons but 1-2 days before the engagement they had demanded Rs. 15,000 and on the date of engagement his father had given Rs. 12,000 cash, watch, chain etc. After marriage, his sister started living with the accused persons and that on trivial matter she was subjected to harassment for demand of dowry. According to this witness, accused persons used to beat the deceased and throw out of their house. After about a week of marriage, for three days the deceased had come to his house and informed that the accused persons were harassing her and that about one and a half month after the said incident when he went to take his sister, this time she lived in his house for about a week and told her miseries. She also informed him that her husband and father-in-law used to beat her and in the night she was ousted form the house. She also informed him that her husband and father-in-law used to beat her and in the night she was ousted form the house. While accused/appellant No. 3 was taking the deceased from his house, he had told her that when they gave everything as per their capacity, why they used to harass the deceased on which she had told him that now onwards they would not have any such complaint. According to this witness, whenever he used to visit the house of the accused/appellants to see his sister, she used to be scared and that accused/appellants were not permitting her to have a talk with him. He has stated that when even on Rakhi festival the deceased was not sent to his house, she had written a letter to him. On the birthday of his sister falling on 25.11.1994, he and his father had gone to invite the accused/appellants but when they did not come till 6-7 p.m. he again went to them for the same, on which deceased/accused (father-in-law of the deceased) told him that they would not come and he could take his sister for half an hour. This witness has stated that as he got little late in sending his sister as was asked by the deceased/accused, they got angry. Thereafter, when his cousin sister came to Bhilai from Khairagarh and expressed her desire to meet the deceased, he took her to the house of the accused/ appellants and when they reached near their house, he heard some weeping-like sound coming from there-from as if the marpeet was going on. When he asked the accused/appellant No. 3 as to what was the matter, she told him that there was some quarrel between husband and wife and that she would make them understand. At that time, his sister asked him to take her with him as the accused persons were beating, harassing and ousting her from the house. Thereafter, on the date of incident he came to know that his sister had suffered burn injuries. On coming to know this, he immediately rushed to Sector - 9 hospital, Bhilai where deceased informed him that had she been taken earlier, such incident might not have taken place. According to him, his sister had suffered 85% burn injuries and appeared to be scared and shocked. On coming to know this, he immediately rushed to Sector - 9 hospital, Bhilai where deceased informed him that had she been taken earlier, such incident might not have taken place. According to him, his sister had suffered 85% burn injuries and appeared to be scared and shocked. In the hospital his sister had asked him and his father whether on account of pouring water, one could catch fire and then the nurses had told that by pouring water the fire does not become intense. This witness has stated that his sister died on 4.2.1995 during treatment. Notice of inquest was given to him and then inquest was conducted vide Ex. P-2 in his presence. Clothes worn by his sister were seized vide Ex. P-9 and that from the burnt sari smell of kerosene was coming. Receipt of ornaments was seized by the police from him vide Ex. P-6. He has admitted that photocopy of the letter of the deceased Ex. P-7A was written in Bengali language and Hindi translation of the same is Ex. P-7. According to this witness, for tallying the handwriting of the deceased her own diary was seized by the police vide Ex. P-10. From paragraph 18 of the evidence of this witness it appears that there are material contradictions and omissions if the same is compared with his case diary statement Ex. D-5. This witness is stated to have informed the police about the fact that deceased was subjected to beating by accused/appellant No. 1 but he has denied that she was suffering from any ailment. Various suggestions were given to this witness but most of them have been denied by him. He has also denied that deceased was hospitalised for treatment of asthma. Sant Kumar Sahu (PW-6) is the Patwari who prepared spot map Ex. P-11. Dr. (Smt.) Usha Shukla (PW-7) has stated that accused/appellant No. 3 had come to her clinic once with the deceased. Then she has stated that the deceased and the accused used to visit her clinic and that she was not suffering from any ailment. After marriage, deceased had come to her clinic along with her mother-in-law and at that time she was carrying pregnancy of two months which she wanted to abort but she had refused for the same. Dr. Then she has stated that the deceased and the accused used to visit her clinic and that she was not suffering from any ailment. After marriage, deceased had come to her clinic along with her mother-in-law and at that time she was carrying pregnancy of two months which she wanted to abort but she had refused for the same. Dr. Harendra Shah (PW-8) is the witness who had medically examined the deceased when she was first brought to the hospital and his report is Ex. P-12. When the deceased was brought to his hospital, she had suffered 85% burn injuries and that she was hospitalised in plastic surgery ward. G.R. Rathore (PW-9) is the Tehsildar who performed inquest on the body of the deceased vide Ex. P-2. D.S. Rathore (PW-10) is the witness who made seizure of certain articles such as nighty, petticoat, pieces of burnt sari etc. vide Ex. P-9 from Sector 9 hospital, Bhilai. According to this witness, smell of kerosene was coming from the seized clothes. Bina Khirwat (PW-11) is the investigating officer who has duly supported the case of the prosecution. In paragraph No. 25 of his cross examination, this witness has stated that she read the case diary in which dying declaration of the deceased recorded by executive magistrate Shri Thakur was attached. She has stated that while filing the challan she had mentioned about the said document but she cannot say as to whether the same has been filed or not. She has stated that she did not remember as to what were the contents of the said dying declaration. She has stated that in the list of witnesses there is no mention about the name of executive magistrate who recorded dying declaration. M.C. Mohnot (PW-12) is the witness who performed post mortem examination on the body of the deceased vide Ex. P-24 and opined that cause of death was septicemia due to burn injuries. S. Jonathan (PW-13) is the witness who has stated that while investigating crime No. 587/1994 in respect of the offence u/s 309 IPC, he recorded the statement of father and brother of the deceased and based on the same and other circumstances, on 20.1.1995 crime No. 39/1995 for the offence u/s 498-A IPC was registered by him vide Ex. P-25. In cross examination, he has clarified that offence u/s 309 IPC was in relation to the deceased. P-25. In cross examination, he has clarified that offence u/s 309 IPC was in relation to the deceased. He has denied the fact that based on the said dying declaration of the deceased he registered the offence u/s 309 IPC. He has stated that in-charge officer may have registered the offence u/s 309 IPC based on the dying declaration of the deceased and then the investigation was given to him. J.K. Das (PW-14) has stated that father of the deceased was known to him as he was working in his office. He also knew the accused persons and that at the time of marriage no demand was made by them. According to him, accused/appellant No. 1 was living at the place of his posting whereas the deceased was living in her matrimonial home at Hudco with her in-laws. Till 7-8 months after marriage the deceased was quite well. This witness has stated that he was told by the father of the deceased that the accused persons were making demand of colour TV and scooter on which he suggested him to give the same if he was in a position to do that or refuse the same. Father of the deceased is stated to have told him that the accused/appellants were doubting the character of the deceased. According to him he once visited the house of accused/appellants where the deceased told him that the accused/appellants were not permitting her to make the purchase of items of her choice on which he had made the deceased understand and obey her in-laws. On receiving the information of the deceased having sustained burn injuries through her brother, he visited Sector-9 hospital Bhilai to see her but he was not allowed to do so. Three days after the incident he had a talk to the father in law of the deceased and when he asked about the reason behind the incident, he told him that she had sustained burn injuries while she was lighting the earthen lamp. Though the deceased was treated in Sector-9 hospital Bhilai for about a month, she could not recover and succumbed to the injuries sustained by her. Though the deceased was treated in Sector-9 hospital Bhilai for about a month, she could not recover and succumbed to the injuries sustained by her. This witness is also stated to have attended last rites of the deceased and as per the custom the mortal remains are immersed in water but in the case of the deceased no such ritual was performed by her husband in spite of the requests made by him and ultimately it was done by her brother. Accused persons did not participate even in the Shraad of the deceased. On seeing all these activities of the accused/appellants, a suspicion grew in his mind that either the deceased might have committed suicide or have been burnt in a well organized manner. Mahadev (DW-1) has stated that at the relevant time he was working in the office of Senior Divisional Manager (Electric) Central Railway, Nagpur and that the accused/appellant No. 1 namely Gautam Chatterji was working as Driver in the said department. On or about 19.12.1994, accused/appellant Gautam Chatterji was on duty and on 20.12.1994, a message was received from the Control office that his wife was serious and then he proceeded on leave. 8. Minute examination of the evidence available on record makes it clear that marriage of deceased with accused/appellant No. 1 was solemnized on 29.1.1994 and in less than a year she died in suspicious circumstances after suffering 80% burn injuries. After the incident dying declaration of the deceased was recorded on 20.12.1994 but for the reasons best known to the prosecution it was not filed in the charge sheet and ultimately on intervention of this Court copy of the same was served to the accused/appellants. In the dying declaration which was recorded in Sector-9 Hospital, Bhilai it has been stated by the deceased that she was narrating the truth; that name of her husband is Gautam Chaterjee; that she was residing in Hudco; that her husband was working at Nagpur; that she was residing along with her father-in-law, mother-in-law and sister-in-law; and that name of her mother-in-law was Bhokti Chaterjee, that of father-in-law V.K. Chaterjee and sister-in-law Pinki. She has further stated in the dying declaration that on 19.12.1994 when she had gone to put off the earthen lamp, her sari caught fire from it and when she was getting down form the stairs she came to know that her sari had caught fire and then on account of fear she shouted for her mother-in-law and sister-in-law who extinguished fire with the help of water and sack. She has further stated in her dying declaration that she was immediately shifted to the hospital and it was just an accident and nobody was responsible for the same. Though this dying declaration has not been filed and exhibited at the time of trial, defence is entitled to make use of any document which is a part of record. As such, in view of the facts and circumstances of the case and the law applicable this Court is of the considered view that dying declaration though not exhibited or proved in the trial can be used by the defence if it is favourable to the accused. In a case of suppression of material document by the prosecution it is open to the Court to presume that statement withheld would become unfavourable to the prosecution if produced and non furnishing of the statement so recorded would occasion a great prejudice to the accused. On account of non supply of statement or material document, the accused is denied of his valuable right to cross examine the prosecution witness. In an almost similar case of Lallusingh S/o. Jagdishsingh Vs. State of M.P., (1996) MPLJ 452, Division Bench of Madhya Pradesh High Court has held as under: 5. We were taken to the evidence on record. Dying declaration recorded by Executive Magistrate/Naib Tehsildar, Ujjain, has been filed in the case along with the challan, but the same was not proved during the course of trial. However, it has been taken in the paper book at the request of the counsel for the accused. Similarly, the injury report of accused was also not proved but was taken in the paper book at the request of accused-appellant. 6. We deprecate method of prosecution of withholding the evidence collected during investigation. However, it has been taken in the paper book at the request of the counsel for the accused. Similarly, the injury report of accused was also not proved but was taken in the paper book at the request of accused-appellant. 6. We deprecate method of prosecution of withholding the evidence collected during investigation. The prosecutor is a 'State' and, therefore, the prosecution should be fair enough to produce all the evidence collected during investigation and it should be left to the Court to come to its own conclusion on the facts proved before him or the Court concerned. But, despite the absence of formal proof of document of dying declaration, the same can be made use of by the accused in his defence accused can take the advantage of the document even without proof of the same. Similarly, the medical certificate showing the injuries on the body of the accused can also be made use of by the accused despite absence of formal proof. 7. Though it is desirable that if the prosecution fails to produce the evidence for proving the document which it goes in favour of the accused; that accused should get the witnesses summoned through Court and prove the document. However, even if this formality has not been observed, since the document is a part of record and has been produced along with the police report, the same can always be considered by the Court to the advantage of the accused. 9. In the detailed dying declaration dated 20.12.1994 the deceased has categorically stated that on 19.12.1994 she had caught fire accidentally. Considering this aspect of the matter, the accused/appellant is entitled for benefit of doubt. 10. In the present case the incident had taken place on 19.12.1994 and the deceased died on 4.2.1995. Though the deceased was alive for more than 45 days, prosecution has not made any attempt to record her statement and here again case of the prosecution becomes doubtful especially when the case diary statements of Sunil Baran Rai (PW-1) and Smt. Anuja Rai (PW-2) were recorded on 22.1.1995 whereas the case diary statement of Sudip Rai (PW-5) was recorded on 30.1.1995 and if in the statements of these witnesses it had come that deceased was subjected to cruelty by the accused/appellants, police could have recorded the statement of the deceased. FIR Ex. FIR Ex. P-25 recorded u/s 498-A IPC has been recorded by the police wile investigating the case u/s 309 IPC registered against the deceased. This FIR was recorded on 20.1.1995 on the basis of statements of father and brother of the deceased. However, no such statement has been filed by the prosecution though these statements have been relied by it. According to the prosecution, the statements were made by the father and brother of the deceased before 20.1.1995 but father of the deceased (PW-1) has categorically stated in his Court statement that for the first time his statement was recorded by the police on 22.1.1995. Once the offence u/s 498-A IPC was registered on 20.1.1995, deceased was alive till 4.2.1995, not recording her statement again creates a doubt about fairness of the prosecution. Prosecution has further filed and proved Ex. P-7 - English translation of letter written by the deceased to her brother. This letter appears to have been written by the deceased somewhere near the Rakshabandhan festival but no allegation of dowry demand or cruelty has been made in the same. There is no concrete evidence on record to show that the deceased was subjected to cruelty for demand of dowry. Further, it is a settled legal position that no straight jacket formula can be fixed to describe the term "soon before death" and it being a relative term would depend upon the circumstances of each case. Even the English translation of the letter Ex. P-7 written by the deceased near Rakshabandhan festival does not contain any allegation of cruelty to her for demand of dowry by the accused persons. Further allegation against the accused/appellants is that they made a demand of getting STD phone but even this allegation against the accused/appellants is general in nature. As per the statement of Sunil Baran Rai (PW-1) after about one and half month of marriage the deceased-accused called him at home and accused/appellant No. 3 Bhokti Chaterjee told him that in marriage colour TV, scooter and fridge have not been given. Here also this witness has not stated that all these articles were demanded by the accused/appellants. Even from the statement of Anuja Rai (PW-2) - mother of the deceased it does not appear that soon before death the deceased was harassed or subjected to cruelty by the accused/appellants for demand of dowry. 11. Here also this witness has not stated that all these articles were demanded by the accused/appellants. Even from the statement of Anuja Rai (PW-2) - mother of the deceased it does not appear that soon before death the deceased was harassed or subjected to cruelty by the accused/appellants for demand of dowry. 11. From the evidence available on record it is clear that accused/appellant No. 1 was not residing at Bhilai but was serving at Vardha. There is no evidence that he used to frequently visit Bhilai and harassed the deceased. Merely on the basis of general allegations made by Sunil Baran Rai (PW-1), Anuja Rai (PW-2) and Sudip Rai (PW-5) where they have used the words "accused persons" it would not be safe for this Court to hold that accused/appellant No. 1 also subjected the deceased to cruelty particularly when there is no specific allegation against him. Thus on the basis of mere general allegations against the accused/appellants, it would not be safe for this Court to uphold their conviction recorded by the Court below in the judgment impugned. Thus, the appeal is allowed. Judgment impugned is set aside. Accused/ appellants are acquitted of the charge levelled against them. Appellants are on bail. Their bail bonds stand discharged.