JUDGMENT 1. - In both the appeals filed under Section 372(2) of Cr.P.C. the judgment dated 3.12.2011 passed by learned Addl. Sessions Judge, (Women Atrocities & Dowry Cases), Bhilwara, is under challenge whereby the accused appellant Mahavir was convicted for offence under Section 302 IPC and sentence of life imprisonment was imposed with fine of Rs.2,000/- against him and in default of payment of fine to further undergo simple imprisonment of six months. 2. The accused appellant Smt. Ladi Devi has been acquitted from the charge under Section 302 IPC while giving the benefit of doubt, however, convicted for offence under Section 498A IPC and sentence of three years rigorous imprisonment along with fine of Rs.2,000/- was imposed against her and in default of payment of fine to further undergo six months simple imprisonment.FACTS OF THE CASE: 3. The FIR was registered upon Parcha Bayan (Ex.P/5) of Smt. Gayatri Devi (since deceased)recorded in the Gulabpura Hospital on 18.1.2007 by the SI Umed Singh (PW-16) at Police Station Gulabpura against the accused appellant. In the Statement (Parcha Bayan), deceased Gayatri Devi stated that she is house wife having qualification of 10th Class, got court marriage with one Hem Raj Vaishnava 5 years back, after marriage my mother-in law Ladi Devi (appellant) was regularly abetting my husband to give divorce to me and she was asking my husband that I will solemnize second marriage. As per statement of Smt. Gayatri Devi on 18.1.2007 at 3.00 pm her mother-in-law Smt. Ladi made quarrel and used filthy words, therefore, Gayatri objected and also used filthy words. Due to said quarrel, Smt. Ladi started weeping. Upon hearing noise of quarrel the resident of the locality came there and all of sudden neighbor Mahavir Vaishnava (appellant) came with Mug (pot) having kerosene in it and after catching her hairs poured kerosene upon her body and lit fire. Due to burn deceased Gayatri cried and upon hearing hue and cry her mother, sister Laxmi and brother Vijendra immediately came on spot for rescue. Thereafter, the brother Vijendra took her to the hospital for treatment. 4. As per allegation of the deceased made in the Parcha Bayan his neighbor accused appellant Mahavir Gurjar residing near the house of deceased was insisted by her mother-in-law Ladi Devi to kill her. Upon aforesaid statement FIR no.21/2007 (Ex.P/16) was registered at Police Station Gulabpura. Thereafter, the brother Vijendra took her to the hospital for treatment. 4. As per allegation of the deceased made in the Parcha Bayan his neighbor accused appellant Mahavir Gurjar residing near the house of deceased was insisted by her mother-in-law Ladi Devi to kill her. Upon aforesaid statement FIR no.21/2007 (Ex.P/16) was registered at Police Station Gulabpura. After registration of the FIR usual investigation was conducted by the investigating officer. First of all investigating officer went on spot and prepared site plan (Ex.P/1) and other documents Panchayatnama of dead body (Ex.P/2), the cloths of the deceased were taken in possession vide (Ex.P/3), the injury report of Gayatri Devi (Ex.P/4) was obtained from the Government Hospital, Gulabpura. One plastic Mug was recovered upon the information under Section 27 of the Evidence Act given by the accused appellant Mahavir vide Ex.P/6 in the presence of two witnesses Narendra Singh and Jai Singh, after arrest of the accused appellant vide Ex.P/9 at 7.15 pm on 18.1.2007. The accused appellant Smt. Ladi was arrested on 24.1.2007 at about 3.30 pm vide Ex.P/10 the statement of all the witnesses of the prosecution under Section 161 Cr.P.C. were recorded including statement of Smt. Gayatri Devi (deceased) on 18.1.2007. 5. During investigation after 17 days Gayatri Devi died on 4.2.2007, therefore, post mortem of her body was conducted by the medical board of JLN Hospital, Ajmer and post mortem report (Ex.P/21) was taken by the police for further investigation. The SHO, Police Station Gulabpura conducted thorough investigation and filed charge-sheet against the accused appellant Mahavir under Section 302 and against accused appellant Ladi under Section 498A and 302/34 IPC in the court of ACJM, Gulabpura on 16.4.2007. 6. The learned Magistrate committed the case for trial to the court of learned Addl. Sessions Judge (Woman Atrocities and Dowry Cases), Bhilwara. The learned trial court framed the charge against the accused appellant Mahavir Gurjar under Section 302 IPC whereas framed charge against the accused appellant Smt. Ladi for offence under Section 498A and 302/34 IPC. Both the accused appellants denied the charges and prayed for trial. 7. In the trial, statements of 15 witnesses were recorded and 21 documents were exhibited from the prosecution side. Both the accused appellants denied the charges and prayed for trial. 7. In the trial, statements of 15 witnesses were recorded and 21 documents were exhibited from the prosecution side. After recording prosecution evidenced, the learned trial court proceeded to record statements of the accused appellants under Section 313 Cr.P.C. in which they denied the charges levelled against them for commission of offence by the prosecution witnesses. 8. In defence, 7 documents were exhibited, thereafter, final arguments were heard by the learned trial court and finally vide judgment dated 3.12.2011 accused appellant Mahavir was convicted for offence under Section 302 IPC and sentence for life imprisonment along with fine of Rs.2,000/- was passed against him. The accused appellant Smt. Ladi Devi was acquitted from the charge under Section 302/34 IPC, but held guilty for offence under Section 498A IPC and sentence for three years RI was passed against her. 9. In both the appeals, the appellants are challenging validity of the judgment dated 3.12.2011 passed by the trial court. 10. Learned counsel for the appellant Mahavir Sh. R.K. Charan at the threshold submits that the conviction of the accused appellant for offence under Section 302 IPC is not sustainable in law even if the entire prosecution case is accepted because there is no relationship of accused appellant Mahavir with the deceased Gayatri, however, admittedly, there is no evidence on record with regard to motive or intention of the accused appellant to cause injuries to the deceased. It is also argued that as per the prosecution case certain allegations were levelled by the deceased on 3.1.2007 in her Parcha Bayan (Ex.P/5) against him but it is admitted position of the case that as per statement of doctor deceased suffered burn of 30% only and she died due to septicemia after 17 days, therefore, even if prosecution case is accepted then also, no offence under Section 302 IPC is made out because there is no evidence of motive, which is essential ingredient for committing offence under Section 302 IPC. It is also argued that it is a case of culpable homicide not amounting to murder because element of motive/intention is absent, so also, as per admitted case of prosecution, the accused appellant Mahavir is neighbor and not having any relation with the family of the deceased or deceased, therefore, even if testimony of deceased Geeta recorded in the Parcha Bayan (Ex.P/5) is accepted then also it is obvious from the facts that occurrence took place due to unhealthy relations of Ladi Bai mother-in-law with deceased Gayatri. It is also submitted that as per statement of PW-14 Dr. R.K. Boyal the cause of death is septicemia due to burn injuries and injuries of bun were sufficient to cause death in ordinary course of nature. Learned counsel for the appellant Mahavir submits that investigating officer PW-15 Vikram Singh specifically accepted before the court that in his investigation no evidence came to his knowledge or record to prove the fact that Smt. Ladi was abetting Mahavir to cause injury of the deceased, therefore, it is prayed that conviction of the accused appellant may be altered from offence under Section 302 IPC to offence under Section 304 Part I IPC and sentence of life imprisonment may also be reduced to already undergone because accused appellant Mahavir is behind the bars since 2007. 11. In criminal. appeal no.1034/2011 filed by Smt. Ladi challenging the validity of the finding of conviction arrived at by the learned trial court to hold accused appellant Ladi guilty for offence under Section 498A IPC. The learned counsel for the appellant submits that even if entire prosecution evidence including statement of the deceased (Ex.P/5) and the statement of Laxmi, sister of the deceased (PW-3) and PW-1 Indira Devi, mother of the deceased is accepted, then also, no offence under Section 498A IPC is made out because no allegation was levelled by the deceased or her family members against appellant Ladi for demand of dowry. The only allegation is levelled that her behaviour was not good with the deceased because due to love marriage with her son Heam Raj Vaishnava, therefore, it is prayed that the conviction of the accused appellant Ladi under Section 498A IPC may kindly be set aside. 12. Per contra, learned Public Prosecutor vehemently argued that it is a case in which serious offence has been committed by the appellants, which is punishable under Section 302 IPC. 12. Per contra, learned Public Prosecutor vehemently argued that it is a case in which serious offence has been committed by the appellants, which is punishable under Section 302 IPC. While inviting attention towards the fact that deceased Gayatri in her Parcha Bayan (Ex.P/5) specifically made allegation against Mahavir that he has poured kerosene upon her and lit fire because Ladi was abetting him to commit murder of the deceased, therefore, from entire angle exists in the case, the learned trial court has rightly held accused appellant Mahavir guilty for offence under Section 302 IPC so also to convict Smt. Ladi for offence under Section 498A IPC. Learned Public Prosecutor vehemently argued that the finding given by the learned trial court to hold accused appellant guilty for offence under Section 302 and 498A IPC does not require any interference because it is a case in which prosecution has proved its case beyond reasonable doubt for aforesaid offence. 13. After hearing the learned counsel for the parties, we have minutely scanned the entire evidence, so also, considered the arguments of learned counsel for the appellant Mahavir to alter the sentence from offence under Section 302 IPC to offence under Section 304 Part I and II IPC. In this case following facts are emerges for consideration: A. Admittedly there is no relationship of accused appellant Mahavir with deceased Gayatri except the fact that he is neighbor residing near the house of deceased Gayatri; B. There is no evidence with regard to motive for committing such crime for which allegation is levelled against the accused appellant Mahavir; C. There is no evidence of abetment by the accused Ladi Devi for committing murder of deceased while pouring kerosene upon her by accused appellant Mahavir D. It is also admitted position of the case that occurrence took place on 18.1.2007, but deceased Geeta died on 4.2.2007 due to septicemia after 17 days. E. The investigating officer PW-15 Vikram Singh specifically stated in his statement before the court in the cross-examination that in my investigation no evidence came on record to prove the allegation that due to abetment of Smt. Ladi, the accused appellant Mahavir committed offence of murder; it is also stated by him that no evidence came on record with regard to demand of dowry by Smt. Ladi. 14. 14. Admittedly, the FIR was registered under Section 307 IPC on 18.1.2007 upon statement given by Gayatri Devi deceased who died in the hospital but she was discharged by the hospital on 31.1.2007 and later on due to septicemia she died on 4.2.2007. Meaning thereby, the injuries caused to the deceased were not so serious to cause death immediately, so also, as per the statement of doctor, there was 30% burn of the body of the deceased and after treatment she was discharged from the hospital, and later on, she died due to septicemia. 15. Upon consideration of entire evidence in the light of prayer, we have no hesitation to hold that there is no evidence of motive for committing offence of murder, so also it is obvious that incident took place all of sudden that too, without any 'motive' As per prosecution evidence, the deceased was immediately taken to the hospital where doctor gave opinion that there is 30% burn in the body of the deceased, therefore, even if entire evidence of prosecution is accepted then also it is not a case to held accused appellant Mahavir guilty for offence under Section 302 IPC because main ingredient of murder i.e., 'motive' is absent in this case. It is one of the important fact that there was no relationship of accused appellant Mahavir with the deceased, therefore, the finding of guilt under Section 302 IPC recorded by the learned trial court against the accused appellant is not sustainable in law. However, the accused appellant Mahavir can be held guilty for offence under Section 304 Part I IPC. 16. Our aforesaid finding is supported by the judgment of the Hon'ble Supreme Court in the case of Kalu Ram v. State of Rajasthan reported in 2000 SCC (Cri) 86 in which while considering the identical evidence, the conviction of the accused of that case was altered from Section 302 to Section 304 Part II IPC. The paras nos.4 to 8 of the said judgment are as follows: "4. Both the trial Court and the High Court relied on the two dying declarations proved in this case and came to the conclusion that it was appellant who set her on blaze and caused her death. He was, therefore, convicted under Section 302 of the I.P.C. 5. The paras nos.4 to 8 of the said judgment are as follows: "4. Both the trial Court and the High Court relied on the two dying declarations proved in this case and came to the conclusion that it was appellant who set her on blaze and caused her death. He was, therefore, convicted under Section 302 of the I.P.C. 5. Learned Counsel for the appellant contended that the contents in the dying declaration are contrary to the testimony of all the witnesses who rushed to the scene on hearing the wailings of the dying lady. It is true that all those witnesses have said that the deceased told her that she herself committed the act of lighting the match-stick but all those witnesses were confronted with their earlier version recorded by the Investigating Officer under Section 161 of the CrPC. The version of those witnesses in Court stands discredited by such earlier statements and the two Courts below have rightly declined to place any reliance on the testimony of those witnesses. Out of those witnesses PW-5 Indu was not declared hostile formally. But that does not matter because she too was confronted with her first version recorded by the police and thereby her testimony in Court was contradicted by the prosecution. 6. We find no good reason to discard the two dying declarations given by the deceased regarding the actual occurrence. The Courts below have rightly acted on such dying declarations. 7. But then, what is the nature of the offence proved against him. It is an admitted case that appellant was in a highly inebriated stage when he approached the deceased when the demand for sparing her ornaments was made by him. When she refused to oblige he poured kerosene on her and wanted her to lit the match-stick. When she failed to do so he collected the match box and ignited one match-stick but when flames were up he suddenly and frantically poured water to save her from the tongues of flames. This conduct cannot be seen divorced from the totality of the circumstances. Very probably he would not have anticipated that the act done by him would have escalated to such a proportion that she might die. If he had ever intended her to die he would not have alerted his senses to bring water in an effort to rescue her. This conduct cannot be seen divorced from the totality of the circumstances. Very probably he would not have anticipated that the act done by him would have escalated to such a proportion that she might die. If he had ever intended her to die he would not have alerted his senses to bring water in an effort to rescue her. We are inclined to think that all what the accused thought of was to inflict burns to her and to frighten her but unfortunately the situation slipped out of his control and it went to the fatal extent. He would not have intended to inflict the injuries which she sustained on account of his act. Therefore, we are persuaded to bring down the offence from the first degree murder to culpable homicide not amounting to murder. 8. We, therefore, alter the conviction from Section 302, I.P.C. to Section 304, Part II of the I.P.C. Both sides conceded that appellant is continuing in jail. We impose a sentence of rigorous imprisonment for seven years on him. It is for the jail authorities to count whether the period he had already undergone would be sufficient to complete the period of sentence imposed by us and if so, the jail authorities shall release him from jail. Otherwise he will continue in jail until completion of the period of seven years of imprisonment. The appeal is disposed of accordingly." 17. In Cr. Appeal No.1032/2011 appellant Smt. Ladi has challenged the conviction and sentence passed against her for offence under Section 498A IPC, it is argued by learned counsel for the appellant that entire evidence speaks loudly that marriage of deceased was solemnized due to love affairs with Hem Raj son of the accused appellant and due to love marriage there was quarrel in between the accused appellant Ladi and the deceased Gayatri Devi. On the date of incident, both of them used some unhealthy words and due to that reason quarrel took place in the house. On the date of incident, both of them used some unhealthy words and due to that reason quarrel took place in the house. In the Parcha Bayan (Ex.P/5) following allegations are levelled by the deceased, which reads as under: " ipkZ c;ku Jherh xk;=h nsoh W/o gsejkt tkfr oS".ko mez 25 lky fuoklh vEcs dY;k efUnj xqykciqjk fnukad 18@1@2007 le; 4 15 p.m. xqykciqjk esa fn;kir iqfyl ij c;ku fd;k fd eSa ?kjsyw dk;Z djrh gwa rFkk eSa 10oha rd i<+h gwaA rFkk ikap lky igys eSaus gsejkt oS".ko ls dksVZ eSfjt fd FkhA rc ls gh esjh lklq yknh ckbZ esjs ifr dks cgdkjh jgrh gS fd yM+dh dks NksM+ ns eSa rsjh nwljh 'kknh dj nwaxhA o vkt fnuakd 18@1@2007 dks le; djhc fnu esa rhu cts ds vkl ikl esjh lklq yknh us xkfy;ka fudkyh fQj eSaus dgk fd xkfy;ka D;ksa fudkyh gS fQj eSaus Hkh nks rhu xkfy;ka cksyh fQj esjh lklq jksus /kkus yx xbZA fQj ekSgYys okys vk x;s o egkohj ?kkl rsy dk exk Hkjdj yk;k o esjh pksVh idM+ dj esjs mij ?kkj rsy Mky fn;k fQj egkohj us rqyh yxk nhA fQj eSa fpYykbZ tc esjh cgu y{eh o esjh eka nkSM+ dj vkbZ egkohj us esjh lklq ds cgdkos esa vkdj eq>s tku ls ekjus ds fy;s egkohj us esjs mij ?kkl rsy M+kydj esjs rhyh yxk nhA esjk NksVk HkkbZ eq>s ujsUnz vLirky esa ysdj vk;k egkohj tkfr ls xqtj gS tks esjs iM+kSl esa jgrk gSA " 18. Upon perusal of Ex.P/5 recorded on 18.1.2007 it is obvious that no specific allegation of cruelty or demand of dowry was levelled by the deceased except the allegation of abetment to her husband for divorce and re-marriage of her husband by the mother-in-law Smt. Ladi. It is important to observe that although charge under Section 302/34 IPC was levelled against Smt. Ladi, but trial court acquitted her from that charge and no appeal has been filed by the State of Rajasthan against the said finding. To consider the case of the appellant for offence under Section 498A IPC, we have perused Section 498A IPC, which reads as under:- "498A. To consider the case of the appellant for offence under Section 498A IPC, we have perused Section 498A IPC, which reads as under:- "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 purposes of this section, "cruelty" means- (a) any wilful 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 to meet such demand." 19. Upon perusal of Section 498A IPC couple with the allegations levelled by the deceased in her statement and other witnesses, we are of the view that no offence under Section 498A IPC is made out against accused appellant Smt. Ladi because there is no evidence of demand of dowry and cruelty. 20. Consequently, the D.B. Cr. Appeal No.13/2012 filed by the accused appellant Mahavir is partly allowed. The sentence and conviction under Section 302 IPC passed against the accused appellant by the learned Addl. Sessions Judge (Woman Atrocities & Dowry Cases), Bhilwara in Sessions Case No.48/2007 vide judgment dated 3.12.2011 is hereby altered to the offence under Section 304 Part-I IPC. The accused appellant Mahavir is held guilty for offence under Section 304 Part I IPC and sentence of life imprisonment is hereby reduced to 10 years RI while maintaining the fine as imposed by the learned trial court. 21. The appeal (D.B. Cr. Appeal No.1032/2011) filed by the accused appellant Smt. Ladi is allowed. The judgment dated 3.12.2011 qua the accused appellant Smt. Ladi passed by the learned Addl. Sessions Judge (Woman Atrocities & Dowry Cases), Bhilwara in Sessions Case No.48/2007 convicting and sentencing the accused appellant Smt. Ladi for the offence under Section 498A IPC is hereby quashed and set aside. Appeal No.1032/2011) filed by the accused appellant Smt. Ladi is allowed. The judgment dated 3.12.2011 qua the accused appellant Smt. Ladi passed by the learned Addl. Sessions Judge (Woman Atrocities & Dowry Cases), Bhilwara in Sessions Case No.48/2007 convicting and sentencing the accused appellant Smt. Ladi for the offence under Section 498A IPC is hereby quashed and set aside. The accused appellant Smt. Ladi is on bail, therefore, her bail bonds are hereby discharged.Appeal Nos. 13/2012 partly allowed and 1032/2011 allowed. *******