JUDGMENT Rajendra Saxena, J.
1. Appellants Bhakhar Ram and Smt. Gera alongwith co-accused Deena Ram were tried by the learned Sessions Judge, Jaisalmer, who by his judgment dated 5.8.92 found the appellants guilty for the offences Under Sections 304B and 304 part Second IPC and sentenced each one of them to ten years’ R.I. with a fine of Rs. 2000/- and in default to further undergo R.I. for two and a half months on each count and further ordered that their sentences shall run concurrently. However, the learned Sessions Judge acquitted co-accused Deena Ram.
2. A brief resume of facts relevant for the disposal of this appeal may be recapitulated. On 8.3.89 at about 11 p.m. Smt. Geeta aged about 25 years was brought by her husband Bhakhar Ram, appellant, to the S. J. Government Hospital, Jaisalmer. She had about 55 to 60% burn injuries on her body. She was admitted in the hospital by DW 1 Dr. Ramji Ram. It appears that on the same day, the S.H.O., P.S. Jaisalmer also sent a letter Ex. P. 19 to the Medical Officer, S.J. Hospital. Jaisalmer informing that Smt. Geeta was got admitted in the hospital in a burnt condition for treatment and requested that her injuries should be examined and that he should also be informed as to whether she was in a fit state of mind to give her statement. It appears that the Doctor after examining Smt. Geeta informed the police that she was not in a fit state of mind to give her statement. It further appears that on the police requisition, PW 13 Dr. C.S. Joshi, Medical Jurist, examined Smt. Geeta at 2.15 a.m. on 9.3.89 and prepared her Medico Legal Injury Report Ex. P. 14. He found that there were about 75% burns on her body and that the affected areas were head & neck alongwith scalp, upper limbs, chest, and upper 2/3 of the abdomen. Her hair were charred. Her perineum and front of both things were also affected by burns. The burn injuries were superficial & deep both, here and there, The burnt skin was pealed off and blisters were also present here and there. She was not fully conscious. Dr. Joshi also made a note that recording of her dying declaration be got arranged. He opined that the burn injuries were grievous in nature and their duration was about 24 hours.
3. Smt. Geeta was given treatment and as per entry on her Indoor Patient ticket Ex. D. 3, she expired on 9.3,89 at 9.20 a.m. on 9.3.89 at 11.10a.m., appellant Bhakhar Ram lodged a written report Ex. P. 18 the S.H.O., P.S., Jaisalmer, wherein he informed that on 8.3.89 at about 7.30 p.m., his wife Smt. Geeta Devi was trying to lit the lamp (chimni) at his house situated in village Hadda, that due to darkness, she poured more kerosene oil in the lamp and caught fire as soon as she torched the lamp. He further informed that her terylene clothes caught fire; that she rushed out from the room and screamed and that thereupon he alongwith his mother Smt. Gera, appellant, and brother Hukma Ram threw water on her and quelled the fire. He further informed that at that time, Sura Ram and Jai Ram had also arrived there and that thereafter on their advice, he brought his wife to Jaisalmer in a ‘Nishan’ Jeep, where she was admitted in the hospital and later on expired next day at about 10 a.m. On further interrogation by PW 16 Ram Singh, S.H.O., P.S., Jaisalmer, appellant Bhakar Ram informed him that his marriage with Smt, Geeta was solemnized about three years ago. Shri Ram Singh conducted enquiry Under Section 174 Cr.P.C. alongwith PW 17 Jagga Ram, SHO, PS Mohangarh, who at that time had come to Jaisalmer on Govt. duty. PW 17 Jagga Ram went to the hospital and prepared the memo of the dead body of Smt. Geeta Ex. P. 15 and Panch Nama Ex. P. 16 in the presence of the S.D.M. It appears that by that time, PW 6 Bhanwarlal, the father of the deceased, had also come to the hospital from Pokran and in his presence after the post mortem examination, the dead body of Smt. Geeta was banded-over to appellant Bhakhar Ram vide memo Ex P. 17. The dead body of Smt. Geeta was taken to village Hadda and cremated there.
4 A medical board consisting of PW 13 Dr. C.S. Joshi, Medical Jurist, PW 14 Dr. Jugal Kishore Saraf and Dr. S.K. Dubey was constituted to conduct the autopsy of Smt. Geeta. The doctors found that her mouth was open and her tongue was inside the teeth. Smt. Geeta had about 75% ante mortem burns on her body detailed in M.L.R. Ex. P. 14. On dissection, they found that her brain was congested and her right and left heart were full of blood. In the opinion of the Medical Board, the cause of her death was shock due to extensive burn injuries.
5. On 17.3.89, PW 7 Fatehlal, the uncle of the deceased, submitted a typed report Ex. D. 1, which was also signed by PW 6 Bhanwarlal to the S.P., Jaisalmer. In that report, Fatehlal submitted that his niece Smt. Geeta aged 20 years, was married to appellant Bhakhar Ram r/o Village Hadda about two years ago ; that Smt. Geeta after return from her in-law’s house used to tell him that her in-laws her father had insufficient dowry and that matreated and harassed her by taunting that she should bring ornaments otherwise they would kill her. He mentioned in report Ex. D. 1 that Smt. Geeta was sent to her in-law’s house about two months prior to the alleged incident and that at that time, PW 6 Bhanwarlal had given her a silver ‘Kandora’ weighing thirty tolas, He further mentioned that on 9.3.89, PW 6 Bhanwarlal was informed through a telephonic message that Smt Geeta had received minor burns; that he should come to Jaisalmer; that thereupon Bhanwarlal went there and found that Smt. Geeta had already expired due to extensive burn injuries; that her post mortem examination had been conducted and that thereafter Bhanwarlal returned Pokran. It was mentioned in Ex. D.1 that thereafter, he alongwith Ganesh Ram went to village Hadda and from their enquiry, it transpired that on 8.3.89, her husband Bhakhar Ram and mother-in-law had beaten Smt. Geeta in the field (Khadin); that she was rescued by Chatura Ram Meghwal, whose field was situated nearby; that her condition was serious and as such, she was brought to village Hadda in Chatura Ram’s camel cart. It was further mentioned in report Ex. D. 1 that neighbours of the house of Bhakhar Ram had informed them that Smt. Geeta was again beaten in the house; that thereafter, her brother-in-law (Dever) caught hold of her hands, her mother-in-law sprinkled kerosene oil on her body and that appellant Bhakhar Ram set her ablaze by a match stick with the result that she got extensive burns and that thereafter in order to save themselves, the appellants brought her to Jaisalmer and by that time, she had breathed her last. It was also mentioned in the report that Smt. Geeta did not commit suicide but she was set to fire by the appellants and Deena Ram; that it was a case of dowry death and that appellants and Deena Ram be got arrested immediately. The S.P., Jaisalmer directed that S.H.O. P.S., Mohangarh to register a case Under Sections 304B and 498A 1PGand thereupon Crime No. 19 was registered on the same day at 7.30 p.m. It may also be mentioned here that while conducting the enquiry Under Section 174 Cr.P.C., PW 16 Ram Singh and PW 17 Jagga Ram had inspected the house of the appellant on 10.3.89 and prepared site plan Ex. P. 19 and memo thereof Ex. P. 20. They had also seized a China silk ‘Lehanga’, which Smt. Geeta was putting on, at the time of the alleged occurrence vide seizure memo Ex. P. 22.
6. After completing the investigation, the police submitted the challan against the appellants and Deena Ram for the offence Under Section 304B and 498A IPC in the Court of learned CJM, Jaisalmer, who committed the case to the learned trial Judge.
7. The learned trial Judge framed charge for the offence under Section 304 Part II IPC and in the alternative under Section 304B IPC to which the appellants & co-accused Deena Ram pleaded not guilty. The prosecution examined as many as twenty one prosecution witnesses. In their plea recorded Under Section 313 Cr.P.C., the appellants denied the circumstances appearing against them in the prosecution evidence and asserted that they have been falsely implicated. Appellant Bhakhar Ram admitted that letters Ex. P. 4 and Ex. P. 5 were written by him; that Smt. Geeta had died due to burn injuries and that PW 4 Parvati bore enmity against them and, as such, she has deposed falsely. In defence DW 1 Ramji Ram was examined, who proved the Outdoor Patient Ticket Ex. D. 2 and Indoor Patient Ticket Ex. D-3 of Smt. Geeta.
8. The learned Sessions Judge relied on the statement of PW 4 Smt. Parvati, who had deposed that she had heard the cries raised by Smt. Geeta from her house to effect, “Jalaya re, Jalaya re”. He further held that from the evidence recorded in this case, the following circumstances were proved :
(i) that appellants used to maltreat and harass Smt. Geeta for dowry;
(ii) that no burn injuries were found no the fingers and bodies of the appellants;
(iii) that there was no smoke or blackening of the roof in the room where deceased was alleged to have caught fire;
(iv) that appellants were present in their house at the time Smt. Geeta received burn injuries;
(iv) that Smt. Geeta did not receive any burn injuries on her hand and palm;
(vi) that there were no burn injuries on her back side ;
(vii) that the appellants did not inform the father of the deceased on 8.3.89;
(viii) that no traces of kerosene oil were found on the ‘Ghaghara’ and ‘Odhni’ of the deceased as per F.S.L. report;
(ix) that the fact mentioned is written report Ex. P. 18 to the effect that deceased had caught fire in her clothes was wrong;
(x) that appellant Smt. Gera had admitted to have burnt Smt. Geeta by ‘Chimni’;
(xi) that appellants Bhakhar Ram vide his letters Ex. P. 4 and Ex. P, 5 had threatened Bhanwarlal to immediately send Smt. Geeta to his house otherwise it would not be in the welfare of both the parties;
(xii) that in the letter Ex. P. 5, appellant Bhakhar Ram had also written that threats given to his would not prove fruitful;
(xiii) that on the place of the occurrence, the I.O. did not find any evidence of burning and pouring of water; and
(xiv) that the floor of the room, where Smt. Geeta is alleged to have caught fire as also the floor of the chowk of appellant’s house were plastered by cowdung.
9. The learned Sessions Judge, therefore, held that there were sufficient grounds to presume that the appellants had set ablaze Smt. Geeta, resulting in her death. He, therefore, by his impugned judgment convicted appellants for the offence Under Section 304B as well as Under Section 304 Part II IPC and sentenced them in the manner detailed above. However, relying on the same evidence, he acquitted co-accused Deena Ram. Hence this appeal.
10. I have heard learned Counsel for the appellants and learned Public Prosecutor at length and carefully perused the record of the learned lower Court in extenso.
11. It has been strenuously contended by Mr. Garg that the findings given by the learned Sessions Judge are patently perverse and not based on the legal evidence recorded in this case; that there is no cogent and convincing evidence to establish that the appellants ever demanded dowry and for that maltreated and harassed the deceased. According to him, it is not at all a case of dowry death; that there is not a shred of evidence to show that soon before her death, Smt. Geeta had been subjected to cruelty or harassment for or in connection with any demand for dowry and, as such, the learned trial Judge has committed grave illegality in drawing presumption against the appellants Under Section 113? of the Evidence Act. He asserted that immediately after Smt. Geeta received burn injuries, appellants took her from village Hadda to Govt. Hospital, Jaisalmer, where they reached around 11 p.m.; that the appellants tried to get her best treatment but she expired next day. The appellants also sent information to PW 6 Bhanwarlal, the father of the deceased, telephonically and that he was present at the time of the post mortem examination and when her dead body was handed-over by the police to appellant Bhakhar Ram. Mr. Garg has stressed that at that time, PW 6 Bhanwarlal neither protested nor lodged any report against the appellants and remained silent till 17.3.89. This amply proves that subsequently a false report Ex. D. 1 was lodged. According to him., PW 4 Smt. Parvati has litigation with appellants and bore animosity with them since long. She also changed her statements at different stages. Moreover, she has nowhere stated that she bad been the appellants setting fire to the deceased and that she is a wholly unreliable witness and, therefore, the learned trial Judge has committed an illegality in placing reliance on her tainted testimony. According to him, PW 2 Ganesh Ram, who is the cousin of PW 6 Bhanwarlal and brother-in-law of appellant Bhakhar Ram and who was the mediator in arranging the marriage of the deceased, as also PW 8 Bhoma Ram resident of village Hadda have not supported the prosecution case. PW 3 Smt. Nirmala has also not supported the prosecution case ; that PW 6 Bhanwarlal, PW 7 Fateh Lal, PW 1 Nand Kishore and PW 5 Harikishan are interested witnesses. He has contended that the circumstances pointed out by the learned trial Judge in the impugned judgment are merely based on surmises and conjectures and those have not been established by any legal evidence recorded in this case. According to him, the learned trial Judge has committed gross illegality in treating the contents of site plan and memo of site plan automatically proved though PW 16 Ram Singh and PW 17 Jagga Ram, S.H.O. have not deposed any such fact in their statements. Shri Garg has asserted that the learned trial Judge has relied on the contents of the report of the F.S.I., which was neither exhibited nor admitted in evidence nor any question regarding that report was put to the appellants while recording their plea Under Section 313 Cr.P.C. According to him, the learned trial Judge has made out a new case on the basis of surmises and conjectures which has seriously prejudiced the appellants. Even the original letters Ex. P, 4 and Ex. P. 5 were not produced by the prosecution but the learned Trial Court has relied on their photostat copies He has further submitted that the learned trial Judge has committed grave error in wrongly placing the burden on the appellants to prove their innocence, specially when the prosecution has miserably failed to discharge its initial burden to prove that the appellants used to maltreat and harass the deceased soon before her death. Mr. Garg has submitted that though the prosecution evidence adduced against appellants and Deena Ram was the same, the learned trial Judge disbelieving the evidence, acquitted Deena Ram, but on the same evidence, he has convicted the appellants and committed grave error.
12. On the other hand, Mrs. Chandralekha, the learned P.P., controverting these submissions, has argued that undisputably the death of Smt. Geeta had taken place within two-three years of her marriage with appellant Bhakhar Ram; that she has received burn injuries in the house of the appellants where they were present; that her death occurred otherwise than under normal circumstances and that PW 4 Smt. Parvati & their neighbour, had also heard the screams of the deceased Smt. Geeta to the effect “Jalaya re, Jalaya re” and that she had also seen the smoke and flames coming out of their house. She has submitted that there is ample evidence in this case to establish that the appellants used to make demands for dowry and maltreat and harass the deceased. Therefore, the learned trial Judge has not committed any illegality in pressing into service the provisions of Section 113B, Evidence Act in drawing presumption against the appellants. She has asserted that the fact that the appellants took Smt. Geeta to the hospital is not at all sufficient to prove their innocence. She has also reiterated the reasonings given by the learned trial Judge.
13. I have bestowed my most anxious, and thoughtful consideration to the rival contentions. Section 304B IPC has been inserted by the Dowry Prohibition Amendment Act, 1986 with a view to combating the increased menace of dowry deaths. it lays down that where the death of a woman is caused by any burns or bodily ‘injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death, she was subjected to cruelty or harassment by her husband or any relative of her husband in connection with any demand for dowry, such death shall be called “dowry death” and such husband or the relative shall be deemed to have caused her death. The explanation appended to Section 304B says that for the purposes of Sub-section (1) “dowry” shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961. By the same Amendment Act, Section 113B has also been inserted in Evidence Act. It deals with the presumption as to dowry death and proclaims that when the question is whether a person has committed “dowry death” of a woman and it is shown that soon before her death, ‘such woman had been subjected by such person to cruelty or harassment for or in connection with any demand for dowry, the Court shall presume that such person has caused dowry death. The explanation appended to this Section further explains that for the purpose of Section 113B, “dowry death” shall have the came meaning as in Section 304B 1PC. Therefore, to raise the presumption as to “dowry death” the basic prerequisites are, (i) that the death of such woman has been caused by any burns or bodily injury or otherwise than under normal circumstances; (ii) that such death should have occurred within seven years of her marriage, (iii) that it should be shown that soon before her death such woman had been subjected to cruelty or harassment for, or in connection with any demand for dowry and that the words, “soon before her death, such woman had been subjected to cruelty or harassment etc.” are very important. Therefore the prosecution must first establish that the deceased soon before her death was subjected to cruelty or harassment for demand of dowry before any presumption Under Section 113B, Evidence Act can be drawn.
14. In Gurditta Singh v. The State of Rajasthan (1991 Cr.L.R. (Raj.) 303), the D.B. of this Court held as under:
“11. The Dowry Prohibition Act is both a remedial and penal statute. As such Courts are expected to construe the provisions in a way that the purpose is fulfilled through and within the limits of the language employed in the statute. If a case under the provisions of the Dowry Act or the penal provisions related to it just referred to above, is established then Courts are to be stringent in dealing with the culprits. However, the cardinal principle of criminal law that unless guilt is established, the person accused should not be punished only because a lesson is to be given to the persons involved in the crime or the Court is morally satisfied about the commission of the crime. The Courts while taking stringent view and despite the obligation of making the legislative enactment a success have also to keep in mind that the charge should be made out.”
15. Therefore, the initial burden lies on the prosecution to prove, the basic three ingredients of Section 304B IPC including the fact that soon before her death, such woman had been subjected by the accused persons to cruelty or harassment for or in connection with any demand for dowry. If the prosecution succeeds in discharging this initial burden then positively, the provisions of Section 113B, Evidence Act come into play and can be pressed into service for drawing the presumption against the accused person that he has caused the “dowry death”.
16. The same view has been reiterated in Lila Ram v. State of Rajasthan (1992 R.C.C. 549).
17. Now, keeping in view the aforementioned settled position of law regarding initial onus on the prosecution, let us now examine, scan and evaluate the evidence recorded in this case.
18. PW 6 Bhanwarlal is the father of the deceased. He has passed higher secondary examination and is a teacher. He states that the marriage of his daughter Geeta was solemnized with appellant Bhakhar Ram in Dec., 1986; that the son of his maternal uncle Ganesh Ram, who is also brother-in-law of appellant Bhakhar Ram, was the mediator in the said marriage. He clearly deposes that there was no demand for dowry on the part of the appellants in the marriage. However, in November, 1987, when he had gone to appellant’s house in village Hadda to fetch Suit. Geeta, the appellant did not send her with him. Thereafter, the sent Ganesh Ram with whom the appellant sent her and that after ten days, her brother-in-law Deena Ram took her back. He states that Geeta had complained that her in laws used to harass her and make demand for dowry and that when accused, Deena Ram took her back, he gave her some clothes and utensils. He does not say that those clothes & utensils were given to meet the demand of dowry. He further deposes that in June, 1988, he received the information that the in laws of Geeta, were harassing her, that thereupon he went to Jaisalmer to see her, where she alongwith her husband used to reside in side the fort; that at that time, he found that she was locked in a room her ‘Devrani’ and that she was weeping and she complained him that she was being maltreated. He states that appellant Bhakhar Ram and his brother Deena Ram did not send Geeta with him saying that their mother was not present there as she had gone to attend their ailing maternal grand mother and that they would send her lateron. He further deposes that on 9th March, 1989 at about 7 a.m., he received a telephonic message of Utma Ram Nai through one Baldev Joshi, who informed him that Geeta had received minor burns and that she has been admitted in the hospital; that thereupon he reached the hospital at Jaisalmer at about 1 p.m. and that by that time, she had already expired that autopsy of body had also taken place. He admits that police while handing-over the dead body of Geeta to Bhakhar Rum also procured his signatures on the memo of “Lash Supardgi”, that thereafter her dead body was taken to village Hadda and that he came back to Pokran. He has clearly admitted that he did neither lodge any report regarding the alleged demand for dowry by the appellants prior to the death of Geeta nor on 9.3.1989 make any protest nor lodged any report in the police about the suspicious death of Suit. Geeta. lie further admits that he also did not go to village Hadda to enquire about the cause of death of his daughter. He states that when he returned to Pokran, his father had gone out of station, who returned on 12th March. 1989; that he waited for his father and that thereafter he Ganesh and Fateh Lal to village Hadda to make an enquiry as to how Smt. Geeta had died. He further states that Ganesh after return from village Hadda, told him that though the villagers of Hadda informed them that they had suspicion that Geeta was burnt, none of the villagers told them that he had seen the alleged incident. Ganesh also informed him that the appellants and their relatives categorically denied the allegation that they had set ablaze Geeta. He further states that thereafter he consulted with his father and relatives as to whether a report should be lodged with the police against the appellants for demand of dowry or not and that he was advised, that he should file the report hence a typed report Ex. D. 1 was submitted by Fateh Lal to the S.P., Jaisalmer on 17.3.89 and that by time, he had also reached there and signed that report. Bhanwarlal admits that Hadda is a small village, where there is n electricity; that his daughter used to complaint that she was feeling much inconvenience in that village because there was neither electricity nor water facility. He further admits that his son-in-law–appellant Bhakhar Ram is a carpenter by profession and that he stayed for some time in Jaisalmer and had also gone to Bombay to earn his livelihood and that during that period, Geeta remained in village Hadda. Hence from the statement of Bhanwarlal, it is abundantly apparent that appellant did not make any demand for dowry at that time of marriage; that Geeta had complained to Bhanwarlal sometime in June, 1988 that she was subjected to cruelty by her in laws, who asked her to bring ornaments and that she had come for the last time in Nov., 1988 to her parents’ house in Pokran. Thus, from the statement of Bhanwarlal, it cannot be inferred that soon before her death, Smt. Geeta was continuously maltreated or harassed by the appellants since November, 1988 till her death, which occurred on 8.3.89. Had there been any demand for dowry on the part of the appellants and if Geeta was subjected to cruelty in connection with the said demand soon before her death, in the natural course of conduct, PW 6 Bhanwar Lal, who is a teacher, should have lodged the report before the police on 8.3.89 or protested that he suspected the dowry death of his daughter or that she was subjected to cruelty before her death in connection with the demand for dowry made by the appellants or he should have convened the Panchayat of his caste fellows. But he did not do so. On the other hand, he kept silent for 8-9 days after due deliberations got a typed report Ex- D. 1 dated 17.3.89 submitted before the S.P. through his brother PW 7 Fateh Lal. In my considered opinion, this inordinate delay of nine days in lodging the report Ex. D. 1 has not been satisfactorily explained. On the other hand, it appears that report Ex. D. 1 was lodged after due deliberation and making embellishments. The learned Sessions Judge has, therefore, wrongly held that delay in riling the F.I.R. was well explained. He has also ignored a material circumstance that this inordinate delay has created a grave doubt in the prosecution story.
19. PW 2 Ganesh Ram is equally related to Bhanwarlal as also to appellant Bhakhar Ram. He stated that during the marriage of Smt. Geeta, no demand for dowry was made on the part of the appellants and that Geeta used to live in her in-laws’ house happily. He stated that after marriage for the first time, Geeta was sent alongwith her father Bhanwarlal, who had gone to village Hadda to fetch her but on the second time, Geeta was not sent with her father because the appellant had told him that repairing work of their Jaisalmer’s house was going on and assured him that they would send her later on. He further states that thereupon, Bhanwarlal requested him to fetch Geeta; that he went to Jaisalmer, where appellant Bhakhar Ram used to stay in a house situated in the fort and asked him as to why he did not send Geeta that thereupon; appellant Bhakhar Ram told him that due to repairs being carried out in his house, Geeta was not sent with Bhanwarlal and that thereafter Geeta was sent with him in July, 1988. He deposes that appellants used to give love and affection to Smt. Geeta; that they asked her to put-on the ‘Chudas’ (bangles) around her hands as per custom of their community to which she presented. He specifically states that Geeta never complained to him that appellants made any demand for dowry or harassed her for such a demand. At this stage, at the request of the P.P., this witness was declared hostile. In his cross-examination, he has denied portion C to D of his police statement Ex. D. 1 that the appellants used to make demand for dowry. He deposes that once appellant Bhakhar Ram had told him that he had seen a photograph of a boy with Geeta, which she did not give to him despite his request and torn off the same saying that the said photograph was of the husband of her friend. He denies that the said photograph was torn by the appellant Bhakhar Ram. On the other hand, be states that he had told appellant Bhakhar Ram that Geeta was chaste & as pure as milk; that he should not doubt her fidelity and that thereupon Bhakhar Ram assured him that he will not suspect her. He further states that he alongwith Fateh Lal had gone to village Hadda on 13th March, 1989, but none of the villagers told him that in laws of the deceased had burnt her. He categorically denies that Geeta was subjected to cruelty by the appellants in connection with any demand for dowry. He, however, admits that Geeta used to complain him that she would not live in village Hadda. because there was no facility for water and electricity and that at her father’s house she enjoyed such facilities in Pokran, He deposes that Geeta also used to complain him that she did not like to put on ‘Chudas’ and did not relish the environment of the village Hadda. Simply because this witness has disowned some portions of his police statement Ex. P. 1 and not supported the prosecution case, his case, his entire statement cannot be ignored or thrown over board. To my mind, this witness is partly reliable and partly unreliable and from his statement, it is apparent that Smt. Geeta was not subjected to any cruelty by the appellants in connection with any demand for dowry soon before her death. On the other hand, it stands well established that Smt. Geeta felt inconvenience due to lack of facilities of water and electricity in village Hadda and that she also did not relish to put on the ‘Chudas’ around her hands as per the customs of Nal community. The learned trial Judge has conveniently ignored the testimony of this witness by saying that he has been declared hostile and thus committed a grave error.
20. PW Fateh Lal is the younger brother of Bhanwarlal. He states that he had never gone to Geeta’s in laws house; that once he had gone to Jaisalmer to fetch Geeta for attending the marriage of his younger brother and at time, her in-laws had send her with him after his repeated requests. He states that at that time, Smt. Geeta had told him that the appellants and the brother of Bhakhar Ram used to maltreat her. However, he does not state as to in which month and year, he had gone to fetch Smt. Geeta from appellants’ house at Jaisalmer. He also does not say that Smt. Geeta was harassed in connection with any demand of dowry. He admits that Bhanwarlal had received a message that Geeta bad sustained burn injuries; that he did not go to Jaisalmer; that Bhanwarlal returned from Jaisalmer on the same day; that they waited for their father, who had gone out of station, till 12.3.89; that thereafter his father asked him to go to village Hadda and to find out about the cause of her death and that thereupon he alongwith Ganesha Ram went there. He states that on enquiry from the residents of village Hadda as also from the appellants it transpired that Geeta got ablazed by kerosene oil while torching the lamp (Chimni). However, on the next day when he alongwith Ganesha Ram had gone to jungle to case out, one person by caste Meghwal had told them that Geeta was set to fire; that thereafter, one person barber by caste and whose name he does not remember as also one person named Paru, who is the neighbour of the appellants and many other persons told them that the appellants had killed Geeta and, therefore, they should not take even water from their house. It may be mentioned here that neither that Meghwal (Chatra Ram) nor Paru nor the said barber has been examined by the prosecution. Even, their names do not find mention in the calendar of witnesses. On the other hand, the prosecution has cited Amolak Ram, Mahendra Singh Rajput and Ishra Ram, all residents of village Hadda, but did not examine either of them. In report dt. 17.3.89 Ex. D. 1, only the name of Chatura Ram Meghwai was mentioned and it was alleged that he bad seen the appellants beating Smt. Geeta in the field and that be had brought her on his camel cart and that the neighbours of Bhakhar Ram, who were not named, have informed that Geeta was also beaten at her house and thereafter appellant Smt. Gera sprinkled kerosene oil over her, her ‘dever’ caught hold of her hands while appellant Bhakhar Ram had torched her by liting a match stick. It may also be mentioned here that in report Ex. D. 1, the name of PW 4 Smt. Parvati also does not find mention. Thus, the prosecution had deliberately withheld material witnesses, which raises a strong presumption against it. Moreover, the contents of report Ex. D. 1 about the alleged incident have not been proved at all,
21. As mentioned earlier, PW 2 Ganesha Ram does not support the testimony of PW 7 Fateh Lal. On the other hand, he deposes that appellant did not make any demand for dowry and that Smt. Geeta used to live with her in-laws happily. Fateh Lal further states that when he returned from village Hadda, Hukma Ram, brother appellant Bhakhar Ram also accompanied them and that on the next day, Hukma Ram and Ganesha Ram had told his father that Geeta was burnt by ‘Chimni’ and that thereupon his father asked Ganesh Ram that if that version was true them he should catch hold of the tail of the cow but Ganesh Ram declined and assured him that if any report is lodged in the police, he would support Bhanwarlal’s father; that on the next day, he came to Jaisalmer and got typed the report Ex. D. 1; that by that time, Nand Kishore, Bhanwarlal and Harikishan Gandhi had also come there and that thereafter he submitted report Ex. D. 1 before the S.P. Again the aforementioned fact is conspicuously mission in report Ex. D. 1. PW 7 Fatehlal also states that when effective action was not taken by the police, he submitted another report dt. 28.3.89 Ex. P. 6 to the S.P., Jaisalmer. It may be mentioned here that Fatehlal gave entirely a different version about the incident in report Ex. P. 6. wherein it was mentioned that the appellants had beaten Geeta in the presence of Sanga Ram Meghwal; that thereafter in the evening of 8.3.89, the appellants and her ‘Devar’ and ‘Devrani’ took Geeta to their house, where her hands were tied inside the room, kerosene oil was sprinkled and she was set ablaze and that at that time, Geeta had come to appellants’ house and found that door of appellants’ house was closed from inside; that thereafter Deendayal went to the roof of his house and entered into the house, where he saw that Geeta was lying in the courtyard and was crying; that thereafter Smt. Pempo mother of Deendayal Nai also reached there; that Hukma Ram was sitting in his shop outside the appellant’s house; that he also informed him, who came inside the house and saw that Smt. Geeta was burning and that thereupon Hukma Ram poured a pitcher of water on her to extinguish her fire. In report Ex. P. 6, it was further mentioned that Hukma Ram called Lal Singh and in his jeep, the appellants took Smt, Geeta to Jaisalmer. Therefore, it is abundantly apparent that Fatehlal completely abandoned the initial version given in his report dated 17.3.89 Ex. D. 1 and tried to introduce new facts and names of other persons in his subsequent report dt. 28.3.89 Ex. P. 6. However, the prosecution has not produced Deendayal or his mother Smt. Pompo and other persons whose names find mention in the report Ex. P. 6 except PW 10 Sanga Ram, who has clearly deposed that appellants did not belabour Smt Geeta in the field nor appellant Smt. Gera had scolded her. However, he was declared hostile. Thus he does not support the contents of report Ex. P. 6. It may further be mentioned have that even in report dt. 28,3.89 Ex P. 6, the name of Smt. Parvati, who is alleged to have heard the screams of Smt. Geeta and seen the flames and smoke coming out from appellants’ house, does not find mention. It is, therefore, abundantly apparent that Smt. Parvati is a cooked up witness and has been introduced later on. The learned trial Judge has also ignored the aforementioned material improvements in the prosecution story.
22. PW 1 Nand Kishore states that Geeta has studied upto 5th-6th class and that she was the friend of her daughter. On the other hand, PW 6 Bhanwarlal clearly deposes that Geeta had studied only upto first class and that she could simply read but could not write. This was probably stated by him to explain the fact that she did not write any letter to her parents complaining about the alleged harassment or maltreatment on the part of the appellants in connection with the demand for any dowry. If Smt. Geeta had studied upto 5th 6th class and was subjected to cruelty, in natural course of conduct, she ought to have written some letters to her father complaining about the cruelty. This fact also reflects that Geeta was not subjected to any cruelty in connection with any demand of dowry.
23. PW 1 Nand Kishore also admits that in the marriage of Geeta. no dowry was settled but states that once when Geeta returned from her in-laws’ house had told him that her in laws used to maltreat her and requested him to tell her father to advice them not to harass her. But PW 6 Bhanwarlal does not corroborate him on this count. Nand Kishore also does not disclose as to when Smt. Geeta had complained him about the appellants. Therefore, from his statement, it is not borne out that Smt. Geeta was subjected to cruelty in connection with dowry soon before her death. Moreover, Nand Kishore admits that he is a political and social worker of Pokran. He also admits that in the first instance, he did not intend to lodge any report in police about the incident, but later on when Fateh Lal stated that Geeta was set ablaze by her in-laws then after pondering over the matter and consultation with others, it was decided that a report about the alleged incident should be lodged, The learned trial Judge has rated this witness as an independent, relied on his testimony and held that it was proved that Smt. Geeta was subjected to cruelty by appellants in connection with their demand for dowry. But this finding is clearly perverse and against the record.
24. PW 5 Harikishan, who is the neighbour of PW 6 Bhanwarlal, deposes that when Geeta used to come from her in-laws house, she used to tell him that they harassed and taunted her that she had not brought sufficient dowry. However, he admits that Smt. Geeta did not name any specific member of the family of her in-laws, who used to harass her. He also states that for the last time, when Geeta’s ‘Jeth’ Hukma Ram had come to fetch her, a silver ‘kandora’ weighing thirty tolas was given to her: that at that time, she was not prepared to go to her in-laws house at Hadda but they persuaded her to go. In his cross examination, he informs that Smt. Geeta had complained about the said harassment to her some lime in December, 1988 and that he had never gone to village Hadda. This witness thus neither names that appellants had subjected her to cruelty nor from his testimony it can be inferred that she was subjected to cruelty in connection with any demand of dowry soon before her death. Therefore, the learned trial Judge has misconstrued the statement of this witness and committed an illegality in placing reliance on him and in concluding that by his testimony, it was proved that Smt. Geeta was subjected to cruelty by appellants soon before her death in connection with their demand of dowry. To my mind, this finding is incorrect and against the record.
25. PW 18 Poonam Chand specifically states that the relations between Geeta and appellants were cordial and not strained. PW 3 Smt. Nirmala Kumhar, who is a neighbour of appellants’ house, has also not supported the prosecution case that the deceased was subjected to cruelty by appellants at Jaisalmer. There is no other evidence to prove the factum of cruelty. Hence, the prosecution evidence about the alleged cruelty on the part of appellants soon before the death of Smt. Geeta is quite vague, incomplete, inconsistent and unworthy of credence. The prosecution has, therefor, palpably failed to discharge its initial burden to prove that Smt. Geeta was subjected to cruelty or harassment by the appellants in connection with any demand for dowry soon before her death. Hence one of the basic ingredients for constituting the offence of “dowry death” is conspicuously missing in this case and. as such, the provisions of Section 113B, Evidence Act cannot be pressed into service against the appellants for raising a presumption as to ‘dowry death’. The learned trial Judge has committed a grave error in employing the provisions of Section 113B, Evidence Act and raising a presumption of dowry death against the petitioner.
26. It appears from the evidence that deceased who was brought up and educated upto 5th-6th class in the town of Pokran, felt inconvenience in residing in her husband’s house situated in village Hadda, where basic amenities like electricity and water were not available and that she also did not relish putting on the ‘Chudas’ around her hand as per customs of her community.
27. The learned trial Judge has placed total reliance on the testimony of PW 4 Smt. Parvati and held that her statement amounted to direct evidence about alleged incident. Smt. Parvati is barber to caste. She was examined on 15.12.89 and thereafter re-examined on 13.5.92. In her statement dt. 13.12.89, she stated that she had seen flames leaping out from the house of appellants and also heard the sound “Jalaya Re Jalaya Re”; that thereafter wife of Om Deshantri went to the house of the appellants having a lantern; that Deena Ram also went inside appellants’ house scaling the wall; that by that time, she became perplexed and that in a short while, appellant Bhakhar Ram came there with a motor: that Geeta had sustained burns on her body and that thereafter, the latter was taken to Jaisalmer. She further stated that there used to be a quarrel between Geeta and her in-laws many times but she did not know as to what was the cause of such quarrel. She further stated that she did not remember as to who were present in side appellants’ house, when she reached there. In her cross-examination, she deposed that the villagers used to tell her that Geeta’. In laws used to beat her and did not keep her comfortably. She admitted that Hadda is a rustic village where Geeta did not relish in fetching water and doing agricultural work. She told that after six days of the incident i.e. around 14/15th March, 1989, the police had interrogated and recorded her statement but from a persual of her police statement Ex. P. 2, it stands firmly established that she was examined as late as on 29.3.89. She admitted that at the time of the alleged incident, neighbours were present in their respective houses. She clearly admitted that in the year 1983, she had filed a criminal complaint against appellant Smt. Gera in the Court of S.D.M. that she also apprehended danger to her life in respect of a dispute of agricultural land between them. She also admitted that thereafter, she has not been on visiting terms with appellant Smt. Gera and that the case in respect of the land was still pending between them. She further admitted that in-laws of appellant Bhakhar Ram had taken her to Pokran for getting her statement recorded and that they had requested her to help him by giving statement in their favour. She also specifically admitted that she did not know as to what was the cause of the quarrel between the deceased and her in-laws and as also the cause of her death. PW 4 Smt. Parvati, therefore, did not support the prosecution case in her statement dated 15.12.89. However, she was re-examined after about two years and five months I.e. on 13.5.92, wherein she disclosed that her statement dated 17.3.89 Ex. P. 24 was recorded before a Magistrate Under Section 174 Cr.P.C.; that on the day of the alleged incident, the cries which she bad heard, were those of the deceased and that she was subjected to harassment for demand of dowry. Thus, she made significant improvements in her re-examination. However, in her cross-examination, she disowned the portions A to B and C to D of her previous statement dated 15.19.89 Ex. D. 1 recorded by the Trial Court. She told that Geeta was being beaten by the members of her in laws but she never informed about the same to the father of the deceased. A combined reading of both the statements of Smt. Parvati recorded in the Trial Court as also her statements Ex. P. 24 and Ex. D. 2 makes it amply clear that she has changed her version at different stages and that she has no compunction even to disown material portions A to B and C to D of her statement dt. 15.12.89 recorded by the trial Judge. Admittedly, litigation between her and appellants is pending since 1983. She also bears enmity with them. But the learned trial Judge has ignored all these important facts and material improvements made by her at various stages. In my considered opinion, PW 4 Smt. Parvati is not at all a reliable witness. On the other hand, her name does not find mention either in the report dated 17.3.89 Ex. D. 1 or subsequent report dt. 28.3.89. Ex. P. 6. She was examined by the police as late as on 29.3.89. She is, therefore, a cooked up and highly interested witness on which no credence can be placed. Therefore, the learned trial Judge has committed gave error in placing reliance on her statement.
28. Now we come to the various circumstances which in the opinion of the learned trial Judge stood well proved by the evidence adduced in this case :
(i) About cruelty ; As mentioned earlier from the prosecution evidence, it does not stand proved beyond reasonable doubt that the appellants used to maltreat and harass Geeta for dowry soon before her death.
(ii) Regarding no burn injuries on fingers & hands of appellants : Appellants Bhakhar Ram and Smt. Gera were arrested on 30.3.89 and 31.3.89 vide arrest memos Ex. P. 26 and Ex. P. 28 respectively. There is no positive evidence that any Doctor had examined their injuries on 8.3.89. No question was put to the appellants while recording their plea Under Section 313 Cr.P.C. that there was no burn injury found on their fingers and bodies and that it was a circumstance appearing against them in the prosecution evidence. Still then the learned trial Judge without an iota of evidence has presumed that no burn injuries were found either on their fingers or bodies. It is, therefore, nothing but the fig of imagination of learned trial Judge in holding that such a circumstance existed against appellants and such a non-existent circumstance cannot be used against them.
(iii) Regarding no smoke or blackening of the roof, in the room, where the alleged incident took place : PW 21 Anand Vardhan, Dy. S.P., has simply proved his signatures on memo of site plan Ex. P. 20 and Ex. P. 21 dt. 10.3 89. He has also proved the signatures of motbirs on these documents. However, he has not cared to utter a single word as to what he had seen and observed at the time of inspecting the site. He has also not deposed that he did not find any blackening or mark of smoke on the roof of the room. Similar is the statement of PW 17 Jagga Ram. SHO, PS. Mohangarh who has stated that Shri Anand Vardhan has inspected the site in his presence and prepared the site plan and memo thereof Ex. P. 80 and Ex. P. 21, which bear his signatures. However, he is also conspicuously silent as to what he had seen and observed at the place of the occurrence and not said anything about the absence of blackening of the roof or smoke. No other prosecution witness has stated on this count. This is well crystalised principle of law that the contents of the site plan or memo thereof cannot be taken to be true or proved until and unless the person, who inspects the site or the motbir in whose presence the site is inspected specifically deposes as to what be had seen and observed about the peculiar and significant features regarding the place of occurrence, because it is only the personal knowledge of the witness, which he acquires while inspecting the site, which is admissible in evidence. Simply by proving the signatures on the site plan and memo the roof, it cannot be presumed or legally held, that the facts mentioned in the site plan and memo the roof stand automatically proved. In Jeet Singh v. State of Punjab (AIR 1967 S.C. 1421). It has been held that the notes on the site plan are statements recorded by the Police Officer in the course of investigation, and are hit by Section 162 Cr.P.C. and such notes can be used for the purpose of contradicting the prosecution witnesses concerned in accordance with the provisions of Section 145, Evidence Act.’ The learned trial Judge has conveniently ignored these fundamental principles of law regarding proving of a certain fact mentioned in site plan and/or memo thereof. The illegality committed by the learned trial Judge does not stop here. He has not even cared to put this particular circumstance that there was no smoking or blackening of the roof of the room, where the deceased was alleged to have caught fire, to the appellants while recording their plea Under Section 313 Cr.P.C. In such circumstances, this unproved circumstance cannot be used against the appellants.
(iv) Regarding presence of appellants in their houses at the time of the alleged incident : PW 4 Smt. Parvati has specifically stated that on seeing the flames leaping out of the house of the appellants, she saw that Deena Ram had entered in the house by scaling the wall and that shortly thereafter, appellant Bhakar Ram had brought the motor vehicle there. Thus she has not stated that either appellant Bhakhar Ram or Smt. Gera were present in side the room. The learned trial Judge has held that since the appellant Bhakar Ram in his report Ex. P. 18 has mentioned that when his wife came out from the room raising alarm, he along with his mother and brother Hukma Ram had poured water and extinguished the fire. Firstly, the presence of the appellants in their house was natural. Secondly, as per statement of PW 4 Smt. Parvati, Deena Ram had gone inside the house after scaling the wall and that Bhakhar Ram had brought a motor vehicle there. Thirdly from the contents of Ex. P. 18, it does not stand established that the appellants were present inside the room, where Smt Geeta had caught fire. Moreover, this circumstance has also not been specifically put to the appellants while recording their plea Under Section 313 Cr.P.C. Therefore, this circumstance can neither be used against the appellants for holding them guilty nor such circumstance itself is sufficient to bring home the offence against the appellants either Under Section 304 Part II, IPC.
(v) Deceased Smt. Geeta did not receive any burn injuries on her hands and palm : PW 13 C.S. Joshi has proved the MLR Ex. P. Hand the post-mortem examination report Ex. 13, wherein no burn injuries on the hands and palm of Smt. Geeta were found, but for mere absence of such injuries, it cannot be conclusively held that Smt. Geeta’s hands were either tied or were caught hold by some person, Moreover, co-accused Deena Ram against whom it was alleged that he had caught hold of the hands of deceased Geeta, has already been acquitted by the learned trial Judge. Therefore, this circumstance does not relate to appellants. Again this specific fact has also not been put to the appellants Under Section 313 Cr.P.C. and, as such, there was no occasion for them to explain their conduct on this score. Therefore, this circumstance can not be employed, against appellants and the same is also not sufficient to fasten the guilt against them.
(vi) Absence of burn injuries on the back of Geeta : Admittedly, Smt. Geeta was putting on Odhna, Lehanga, Ghaghara and other clothes at the time of incident. Her hair were found to be charred. Of course, there were no injuries on her back. But it all depends as to in what posture Smt. Geeta was at the time when she caught fire Therefore, simply by absence of burn injuries on the back side, it cannot be said that at the time of alleged occurrence, she was lying down or was not standing or that somebody else had torched fire to her. Again, this specific circumstance was not put to the appellants in their plea recorded Under Section 313 Cr.P.C. In such circumstances, it cannot be presumed that the appellants had set fire to Smt. Geeta.
(vii) That the appellants did not Inform the father of deceased on 8.3.89 : PW 6 Bhanwarlal admits that he had received a telephonic message of Utma Ram Nai r/o village Hadda through Baldev Joshi at 6.30 a.m. on 9.3.89 informing that Geeta had sustained burn injuries. The alleged incident took place in the evening on 8.3.89 at village Hadda. She was immediately brought in a Tonga Jeep by the appellants. They reached the Govt. hospital, Jaisalmer at 11 p.m. on 8.3.89. Since the condition of Smt. Geeta was poor and continuous treatment was given to her till she breathed the last on 9.3.89 at about 10 a.m. it cannot be said that the appellants deliberately did not inform Bhanwarlal on 8.3.89. As a matter of fact, PW 6 Bhanwarlal was informed early morning on 9.3.89 and he had reached the hospital at Jaisalmer from Pokran at about 1 p.m. on 9.3.89, The prosecution has also not placed on the record the original note Ex. P. 3 alleged to have been written by Baldev Joshi to PW 6 Bhanwarlal conveying the telephonic message. Therefore, the photostat copy of note Ex. P. 3 is legally not admissible in evidence. The prosecution has also not examined Baldev or Utma Ram. There is no dispute that Utma Ram Nai is the cousin of appellant Bhakhar Ram. Hence the circumstance not informing PW 6 Bhanwarlal on 8.3.89 is not at all significant and the same does not implicate the appellants with the offence nor it reflects any ill intention on their part.
(viii) No traces of kerosene oil were found on the ‘Ghagara’ and ‘Odhni’ of the deceased as per FSL report: The FSL report dt. 11.2.91 was neither exhibited nor admitted in evidence by the trial Court nor any question regarding the contents thereof was put to the appellants in their plea Under Section 313Cr.P.C. Besides this, the burnt Lehanga and Odhni were sent to F.S.L. on 13.4.89 and the same were examined on 11.2.91 I.e. after about twenty two months and for such a long period, it cannot be expected that traces of kerosene would not evaporate. Therefore, even if the FSL report is taken into consideration which says that on physico chemical analysis, fraction of kerosene residue could not be detected in the extract of the said Lehanga and Odhni, is no conclusive circumstance that Smt. Geeta did not receive any burn injuries from kerosene oil because as per prosecution case, PW 21 Anand Vardhan, Dy. S.P., who inspected the site had found the lamp and the kerosene and seized the same. The prosecution has also not claimed that death of Geeta was caused due to burn injuries sustained by her from other substance than the kerosene oil. It appears that the learned trial Judge in his enthusiasm to find the appellants guilty has relied on such a circumstance, which is not at all material and which was not even admissible in evidence. Therefore, this circumstance also does not prove the guilt of the appellants.
(ix) The fact mentioned in written report Ex. P. 18 to the effect that deceased had caught fire in her clothes was wrong: This finding of the learned trial Judge is patently false and against the record because as per post mortem examination report Ex. P. 33, the Doctors found the charred clothes of the deceased. Her burnt Lehanga was also seized by the police vide seizure memo Ex. P. 23. Moreover, in report Ex. P. 6 submitted by Fatehlal. it was specifically mentioned that Hukm Ram, brother of appellant Bhakhar Ram had poured a pitcher of water on Smt. Geeta in the courtyard and quelled the fire. Therefore, the facts mentioned in report Ex. P. 18 to the effect that the deceased had caught fire in her clothes was not wrong. There is not a shred of evidence to prove that the appellants had sprinkled the kerosene oil on her and set her ablaze. Therefore, the findings of the trial Judge on this count is palpably wrong.
(xi) That appellant Smt. Gera had admitted to have burnt the deceased by the ‘Chimni’: Suffice it to say that the police after investigation even in the chargesheet did not mention about the alleged extra judicial confession/admission of appellant Smt. Gera that she had burnt the deceased by Chimni. From the very beginning, such was not the case of the prosecution. To make out this admission, the learned trial Judge has relied on the statement of PW 8 Bhoma Ram, who was declared hostile. Bhoma Ram state that he did not see the deceased burning; that he went to appellants’ house and that appellant Smt. Gera had told him that “Chimni Ke Zalane mai Jal “gai hai”. He further states that he had simply seen Smt. Geeta in a burnt condition and that he did not talk to her; that nobody knew as to how she caught fire; that he even did not her hear in the village that there was a quarrel between her and appellants. It may be mentioned here that in his police statement Ex. P. 7, he had stated that on the day of the alleged incident when he reached the house of the appellants, he enquired from the wife of appellant Bhakhar Ram, who had informed that while the deceased was torch-Chimni, she caught fire in her clothes. Thus even in his police statement, Bhoma Ram had not stated that appellant Smt. Gera had made an extra judicial confession before him and admitted that Smt. Geeta was burnt by a Chimni.
Therefore in my considered opinion, the learned trial Judge has misread the statement of PW 8 Bhoma Ram and one has committed a grave error in holding that the appellant Smt. Gera had admitted to have burnt Geeta by Chimni. Therefore, his finding on this count is grossly perverse and against the record.
(xi & xii) That the appellant Bhakhar Ram in his letters. Ex. P. 4 and Ex. P. 5 had threatened Bhanwarlal : Original letters Ex. P. 4 and Ex. P. 5 have not been produced by the police. PW 6 Bhanwar Lal stated that those letters were lying at his house. A specific question was put regarding letters Ex. P. 4 and Ex. P. 5 to the appellants Under Section 313 Cr.P.C., where upon appellant Bhakhar Ram admitted to have written such letters. A careful perusal of letters Ex. P. 4 and Ex. P. 3 unmistakably shows that appellant Bhakhar Ram had simply complained his father-in-law PW 6 Bhanwarlal that the letter had not sent back Smt. Geeta as per promise and that he also instigated PW 2 Ganesh Ram to write threatening letters to him. In letters Ex. P. 4 and Ex. P. 5, appellant Bhakhar Ram insisted hip father-in-law that in future, he should directly communicate with him and not through the mediator Ganesh Ram. In these letters, there is no mention about any demand for dowry or about any harassment to deceased. In letters Ex. P. 4 and Ex. P. 5, appellant Bhankar Ram had requested that Smt. Geeta be sent to him otherwise it will not be in the welfare of both the families. Letter Ex. P. 4 bears the date 26.2.88 while letter Ex. P. 5 was written on 9.7.88, whereas the death of Smt. Geeta took place on 8.3.89. Therefore these letters are not material and do not prove in any way the guilt of appellants Hence the finding of the learned trial Judge on this count is also not correct.
(xiii) That on the place of the occurrence, the I.O. did not find any evidence of burning and pouring of water : PW 17 Jagga Ram and PW 21 Anand Vardhan have stated that they had inspected the site on 10.3.89, but they have not proved the contents of inspection memo Ex. P. 20 and site plan Ex. P. 21. Moreover after two days of the incident, no traces of water in the courtyard of the appellants’ house could have been found. Again this circumstance was not put to the appellants Under Section 313Cr.P.C. Hence this circumstance cannot be read against them.
(xiv) That the power of the room and the chowk of appellants’ house were found to be plastered by cowdung at the time of site inspection : PW 17 Jagga Ram and PW 21 Anand Vardhan, Dy. S.P. have not deposed in their statements that they had found the room and the courtyard of the appellants’ house plastered by the cowdung. Therefore, this fact does not stand automatically proved. Secondly, no such circumstance was specifically put the appellants while recording their plea Under Section 313 Cr.P.C. Hence this circumstance does not stand proved.
29. The appellants immediately took Smt. Geeta in a Jonga Jeep from village Hadda to Govt. hospital. Jaisalmer for her treatment. Appellant Bhakhar Ram also lodged report Ex. P. 18 immediately after the death of Smt. Geeta. Hence their conduct also point-out towards their innocence.
30. In the premise of the above detailed discussion, analysis and assessment of evidence, it is manifest that the learned trial Judge has not correctly scanned and evaluated the evidence recorded in this case and in his enthusiasm to convict the appellants has introduced new facts, which are against the record and committed gross illegality in convicting the appellants Under Section 304B and Under Sec, 304 Part II IPC and, as such, their conviction and sentence deserves to be set aside.
31. In the result, this appeal is allowed and the conviction & sentence passed against appellant Bhakhar Ram and Smt. Gera by the learned Sessions Judge, Jaisalmer vide his judgment dated 5.8.92 are hereby set aside. The appellants are acquitted of the offences Under Section 304B and 304 Part II, IPC. The appellants be set at liberty forthwith if they are not required in any other case.