JUDGMENT Shiv Kumar Sharma, J.
1. Prabhati Lal, Smt. Murti Devi and Mahaveer, the appellants herein, were put to trial for having committed dowry death of Sunita before arbitrators Additional Sessions judge (Fast Track) Kishangarhbas (Alwar), who vide judgment dated June 05, 2002 convicted and sentenced he appellants as under:
Under Section 304 IPC To suffer imprisonment for life.
Under Section 498A IPC:
To suffer rigorous imprisonment for three years and fine of Rs. 1000/-, in default to further suffer rigorous imprisonment for six months.
The sentences were directed to run concurrently.
2. Prosecution version as projected during trial is as follows:
Sunita (since deceased) was sister of informant Ashok Kumar (PW- 1). She was married to appellant Mahaveer three years back prior to the date of incident. Immediately after the marriage appellant Mahaveer and his parents (appellants Prabhati lal and Smt. Murti Devi) started harassing her for the demand of Motor Cycle, Fridge and gas stove. The informant could somehow fulfill the demand of Fridge and gas-stove but pressing demand of Motor Cycle could not be met. Sunita therefore, faced ill treatment and torture at the hands of appellants. On May 15,2000 the informant was told by somebody at the village bus-stand that Sunita became ill and he was immediately called. On reaching at village Devsika he was told that Sunita was admitted at Alwar Hospital. The informant then rushed to Alwar hospital and found Sunita badly burnt. On being enquired as to what had happened, she told him that her husband, father-in-law and mother-in-law gave beating to her and got her burnt. The informant thereafter on May 15, 2000 went to police station Kotkasim and submitted written report (Ex.P-1). A case Under Sections 307 and 498-A IPC was registered. Statement of Sunita was recorded by Judicial Magistrate. After Sunita died, Section 304-B IPC was added. On completion of investigation charge sheet was filed. In due course the case came up for trial before the arbitrators Additional Sessions Judge (Fast Track) Kishangarhbas. Charges Under Sections 304-B and 498A IPC were framed against the appellants, who denied the charges and claimed trial. In order to further its version the prosecution examined 12 witnesses. In the explanation Under Section 313 Cr.PC, the appellants claimed innocence and stated that when Sunita had been burnt, they were away from the house. No witness in defence was however, examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated above.
3. The case of prosecution is founded on the testimony of Ashok Kumar (PW-1) who deposed that when Sunita came to reside in her parental house she told about the tortures meted out to her for not bringing motor cycle. According to him when he went to Alwar Hospital he found Sunita badly burnt. She was conscious and told him that the appellants bad burnt her. To similar effect is the evidence of Hoshiyar Singh (PVV-3) who claimed to have accompanied Ashok Kumar (PW-1), Bharpur Singh (PVV-4) the father of Sunita also stated about the demand. Sh. Sathish Chand Kaushik Judicial Magistrate (PW-9) recorded the dying declaration of Sunita. Dr. B.L. Meena (PW-11) examined the injuries of Sunita and Dr. Shital Jain (PW-10) conducted autopsy on the dead body. Learned trial Court scanned he evidence on record and came to hold that the presumption in terms of Section 113-B of the Evidence act was to be drawn since death of Sunita was caused by burns within seven years of her marriage and soon before her death she was subjected to harassment in connection with demand for dowry, the appellants were guilty of offences in terms of Section 304-B and 498-A IPC.
4. In support of the appeal learned Counsel for the appellants urged as under:
(i) Dying declaration stated to be recorded by the Magistrate does not inspire confidence. The trial Court completely overlooked the proved fact on record that the deceased was not in the proper mental state to give the statement. The prosecution has withheld the witness who stated to have certified that the d was in a if state of mind to give the statement.
(ii) The trial court has observed contrary to the record that the appellants after pouring kerosene, set Sunita ablaze.
(iii) Incriminating evidence existing against appellants was not properly explained in terms of Section 313 Cr.PC
(iv) Plea of alibi raised by the appellants was not properly considered.
5. In response arbitrators Public Prosecutor contended that the trial Court has analysed he factual position in detail and found the appellants guilty, that being so, no fault can be found with the judgment of the trial Court.
6. Section 304B IPC applies where the death of woman is caused by burns or bodily injury or under abnormal circumstances within seven years of her marriage and she was subjected to cruelty or harassment soon before her death in connection with the demand of dowry. According to Section 113B of the Evidence Act, presumption against the accused as to dowry death of a woman can be raised where the prosecution is able to establish that soon before her death the woman was subjected to cruelty or harassment by the accused.
7. In the present cases the cause of death of Sunita as per post-mortem report (Ex.P-12) was septicemia shock, brought about as a result of ante mortem dry flamed burns and super aided secondary infection sufficient to cause death in the ordinary course of nature, it is also established from the evidence of Ashok Kumar (PW-I) and Bharpur Singh (PW-4) that incident occurred within three years of marriage of Sunita and soon before her death she was subjected cross-examination the evidence of Ashok Kumar and Bharpur Singh could not be shattered and we see no reason to disbelieve them.
8. We have also closely scrutinised the testimony of Sh. Satish Chandra Kaushik (PW-9) who on the date of occurrence was posted at Civil Judge (Jr.Dn.) and Judicial Magistrate. In his deposition arbitrators Magistrate stated that after obtaining fitness certificate from the doctor, he proceeded to record the statement of Sunita who was badly burnt. In order to ensure whether Sunita was in a fit mental state to give the statement, arbitrators Magistrate suggested a wrong name to her. It was asked whether her name was 'Vidya' to which she replied 'no' by tilting her neck and said that her name was 'Sunita'. She categorically stated the appellants set her ablaze. On examining the dying declaration of Sunita with meticulous circumspection and seived it through the judicial cullender we are of the view that it passes through gauzes. In Kanchy Komuramma v. State of A.P. A.P. 1995 Supp.(4) SCC 119 the Apex Court indicated thus:
...That the dying declaration has been recorded by a Judicial Magistrate, by itself is not a proof of truthfulness of the dying declaration, which in order to earn acceptability has still to pass the tests of scrutiny of the court. There are certain safeguards which must be observed by a Magistrate when requested to record a dying declaration. The Magistrate before recording the dying declaration must satisfy him self that the deceased is in a proper mental state to make the statement. He must record the satisfaction before recording the dying declaration. He must also obtain the opinion of the doctor, if one is available, about the fitness of the patient to make a statement....
In the present case, all the safeguards have been observed by the arbitrators Magistrate.
9. learned Counsel for the appellants took us through the dying declaration of Sunita to show that thumb mark appearing on it has clear ridges and curves. According to learned Counsel thumb mark of a woman whose both hands were burnt, would not have clear ridges and curves. learned Counsel persuaded us to grant benefit of doubt to the appellants on this ground in view of ratio indicated in State of Punjab v. Gian Kaur 1998 SCC (Cri) 942, wherein dying declaration of a woman who had 100% burns was disbelieved on the ground that the thumb impression appeared on the dying declaration had clear ridges and curves. In that case Dr. Ajay Sahni was found not reliable as he failed to explain how such a thumb mark could appear on the dying declaration when the woman had 100% burns over her body.
10. In our opinion ratio propounded in State of Punjab v. Gian Kaur (supra) is not applicable to the facts of the present case. As per post mortem report of deceased Sunita (Ex.P-12) ante mortem burns were found on frontal scalp hair, eye brows, eye lashes, face and neck, front of chest and abdomen, buttocks, back of chest, both legs, thighs and dorsal aspect of foot and both upper extremities. Total burn area was 90% Dr. Sheetal Jain (PW-10) who performed autopsy on the dead body in his examination in chief, however, deposed that except some parts, her both hands were burnt. But he was not cross-examined as to whether her thumbs had ridges and curves. Even Judicial Magistrate was not cross-examined on this aspect.
11. The submission of learned Counsel regarding non-examination of the doctor who certified mental fitness of the deceased, is also devoid of merit. The Constitution Bench of the Apex Court in Laxman v. State of Maharashtra (2002) 6 SCC 710 indicated that where Magistrate categorically stated in his evidence Indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind whereafter he recorded the dying declaration, It cannot be Ignored merely because the doctor did not make endorsement about the mental fitness of the patient.
12. Other submissions of learned Counsel for the appellants regarding plea of alibi and examination of appellants Under Section 313 CrPC are also of no help to the appellants. In the explanation Under Section 313 CrPC the appellants stated that at the time of incident they were not in the house and had gone to attend some marriage. In our opinion leaving a pregnant lady alone in the house by her husband and in-laws and not permitting her to attend social function like marriage, also amounts to cruelty. Having closely gone through the questions put to the appellants in their examination Under Section 313 CrPC we find that all the incriminating circumstances were explained to them and it is not a case where prejudice can be said to have been caused to the appellants.
13. In regard to sentence awarded to the appellants learned Counsel canvassed that compassionate view may be taken looking to the fact that at the time of death of Sunita, her child of one and half year of age was alive and he has been unnecessary confined in jail along with the appellants.
14. Article 39(e) of the Constitution indicates that the state as the guardian of the health and strength of the tender-aged children to see that they are not abused or forced to enter avocations unsuitable to them compelled by economic necessities. Children, therefore, should be provided with all necessary facilities and atmosphere to grow into responsible and useful citizen of the country. For the full and harmonious development of his or her personality, a child should grow up in a family environment, in an atmosphere of happiness, love and understanding. There must be conscious and continuous effort by all concerned to take care of children to ensure wholesome development of their personality.
15. Section 304B IPC provides that whoever commits dowry death shall be punished with imprisonment for a term which shall be not less than seven years but which may extend to imprisonment for life. In the present case arbitrators trial Judge imposed extreme punishment of imprisonment for life on the appellants. Looking to the well being of child of Sunita and in the interest of justice we are inclined to reduce the sentence awarded to the appellants.
16. As a result of the above discussion, we partly allow the appeal and while confirming the conviction of appellants Under Section 304-B IPC we reduce their sentence from imprisonment for life to rigorous imprisonment of seven years. We however, confirm the conviction and sentence awarded to the appellants Under Section 498A IPC. The sentences are ordered to run concurrently. Impugned judgment of arbitrators trial Judge stands modified as indicated above.