Prabhat Kumar Sinha, J.
1. All the appellants, above named, stand convicted Under Section 304B read with Section 34 of the Indian Penal Code (the Code, in short) and sentenced to rigorous imprisonment for life. The appellants have further been convicted Under Sections 3 and 4 of the Dowry Prohibition Act and further sentenced to undergo rigorous imprisonment for six months each, and to pay a fine of rupees five thousand each, for both the offences separately, or to undergo simple imprisonment for two months in default to pay the fine. The sentences of imprisonment were ordered to run concurrently.
2. This is a case with two dying declarations, firstly the Fardeyan (Exhibit-5) recorded by a Police Officer on 7.6.1992 (the date of occurrence being the same date) at 8.15 p.m. in the hospital, of the deceased Parveen @ Shama, hospitalized in a seriously burnt condition and the second being statement recorded by Mr. Pyare Mohan Lal, Sub-Divisional Judicial Magistrate, then posted at Gaya, on 9.6.1992 (Exhibit 9), with almost all the material witnesses including the father and mother of the deceased as well her in-laws, turning hostile, not supporting the prosecution case.
3. First, the case of the prosecution as in the first dying declaration, in brief, is that the victim Shama Parveen told the Court witness No. 1, Janak Dulari Sharma at the hospital, where she was posted as Officer-in-charge of the Magadh Medical Police Station, that in the same morning at about 7.00 a.m. while she was in her husband's house, husband having gone out of the house, the appellants Nagina Khatoon, mother-in-law and Jamila Khatoon, sister-in-law came inside her room and caught hold of her. Her father-in-law, Rafique Alam and brother-in-law Haroon (not appellant) came inside the room and Rafique Alam poured upon her kerosene oil kept in a bottle whereafter Haroon put her on fire with the aid of a match-box. When she wanted to flee away, they themselves came out of the room and bolted the door. On her hulla the elder brother of her husband, Shafique Alam (P.W. 5) and others came, took her out of the room and extinguished the fire whereafter her husband also came and helped in her rescue though by that time she was badly burnt. On knowing this Md. Idris (P.W. 9), her father and mother Shamsha Khatoon (P.W. 8) came there and took her to the Magadh Medical College Hospital. The informant also told in Fardbeyan that all the four, who put her to fire, were greedy persons and always asked her to bring money from her father and about two years back on their demand she had brought rupees ten thousand for purchase of sewing machine but now also they were demanding more money. She was married five years back and was blessed with a daughter, two years old. The informant alleged that after the marriage they were always insisting for bringing money and used to assault her and ultimately they had put her on fire. She also said that her husband out of their fear was unable to oppose. She also said that her husband was married earlier also but first wife also was ousted from the house after assault by these very accused persons. She claimed that they wanted to kill her so that her husband could be married again and bring more dowry. She also claimed that she had informed her Maika people of all these and on the date of occurrence also she had told about the incident to them. She further claimed that she had got the statement read by her father and finding that correct she was putting her thumb impression thereon.
4. The defence put up by the appellants has all along been that the victim had caught fire while cooking and despite medical help, she could not be saved.
5. Out of the witnesses examined by the prosecution, P.W. 6 was tendered for cross-examination whereas P.W. 10 was a formal witness proving certain documents. P.W. 1 Abdul Gaffar, P.W. 2 Md. Idris, P.W. 3 Md. Shaukat, P.W. 4 Sakina Khatoon (sister-in-law), P.W. 5 Shafique Alam (brother-in-law) and P.Ws. 8 and 9, Shamsha Khatoon and Md, Idris, took the witness stand not to support the prosecution case and were declared hostile, whose attentions were drawn to their statements given before the Police, However, they denied having given any such statements to the Police. Another aspect of the case is that the Investigating Police Officer could not be examined as witness. As already seen, the Police Officer who had recorded the Fardbeyan and Mr. Pyare Mohan Lal, the then Judicial Magistrate, Gaya were examined as Court witnesses and had proved documents which we will refer to later.
6. Dr. Mithilesh Kumar Sinha (P.W. 7), had conducted autopsy upon the dead body. It may be noticed that the occurrence though had taken place on 7.6.1992 the victim had expired after forty days, all through remaining in the hospital, The doctor conducted autopsy upon the dead body at 11.45 a.m. on 18.7.1992 and noted following injuries :
'The face and dorsum of feet were odemaeus, severe anaemia, tongue and lips were dry and fallen. Recently healed demo-epidermal burn scar having whitish base over face, front of neck, front of side of chest and upper half of abdomen, both upper extremities including both hands, whole lower extremities including dorsum of feet, etc. There were presence of reddish gradnulation tissue and unhealed puss point spots at scattered part of body such as hand, dorsum of feet and breast, etc. of different size and shape. Right side of heart full and left side empty, liver enlarged and pale, kidney enlarged and pale. Scalp hair at top of head and side were very small size up to half inch length, probably due to burning of hair.'
7. The doctor opined that the injuries were ante mortem and could have been caused by burns, Death in his opinion was due to anaemia, hypro-protoncmia and sepsis. The injuries, in the opinion of the doctor were caused within four to six weeks back. The doctor in cross-examination said that she had died as a sequal to the burns suffered by her, most of which were on the front side of her body involving also whole of the scalp. Insofar as this medical opinion is concerned, though learned Counsel for the appellants did not deny that the deceased had died of burn injuries but pointed out the defence of the accused that while cooking food, the stove had burst causing her burn injuries. It was also argued that the death was caused by intervening factors such as anaemia, protonemia and septicaemia. But alt these three conditions are direct result of a person suffering from severe burn injuries. The doctor witness also said in his evidence that anaemia, hypro-protonemia and sepsis which were causes of death were the end result of the massive bums which the lady had suffered.
8. Mr. G.P. Jaiswal, learned Additional Public Prosecutor pointed out that when the death had been caused by the factors which were direct result to the injuries suffered by. the deceased, the offence committed could not be mitigate. For this learned Counsel has relied upon a decision of the Apex Court in the case of Jagtar Singh v. State of Punjab, 1999 Cr. L.J. 20. The three end results relating directly to the massive bum injuries suffered by the deceased cannot mitigate the nature of the offence if found to have been committed by the appellants. However, another factor that may be noticed here is that the learned Trial Court has framed no charge Under Section 302 of the Code though charges Under Section 304B read with Section 34 of the Code as well Under Sections 3 and 4 of the Dowry Prohibition Act were framed.
9. Therefore, it is clear that the deceased had suffered massive burns as supported by the doctor witness and after hovering between life and death for about forty days she, ultimately, lost the battle and succumbed to her injuries. Now what has to be seen is whether the appellants were responsible for causing her those injuries, as well, in view of the charge Under Section 304B of the Code, the reason for causing such injuries to her if those were caused by the appellants.
10. Now a glance over the evidence of witnesses. P.W. 1 has said that on the date of occurrence the deceased had caught fire while cooking food at about 8 a.m. and had died after about a month. He denied, when his attention was drawn towards the statement made before the Police where he had told that on hulla when he had gone there, the victim had revealed, in injured condition, that her father-in-law, mother-in-law Nanad and Dewar had poured kerosene oil upon her and had put her to fire. In cross-examination this witness stated that the deceased had very good relation with her Sasural people and they were treating her well and also had got her treated after injuries. P.W. 2 also said that on hulla he had gone there but the victim did not tell him as to how she was so burnt. When his attention was drawn to his previous statement he denied to have told the Police Officer that on the date of occurrence Shama Parveen had told that the four relatives, as mentioned in the First Information Report, had burnt her. The witness also said that the Sasural people had kept her well.
11. P.W. 3 has said that on hearing hulla he went to the place of occurrence and found that the saree and the body of the victim had burnt and came to know that she had caught fire while cooking. Similarly, he denied having given statement to the Police that the father-in-law and mother-in-law were blamed for the occurrence. Significantly, this witness has said that when he went there he found a burning stove there. It may be noted that the defence also, was that stove has burst causing fire to her. He also certified that the deceased and her Sasural people had maintained good relationship.
12. P.W. 4. Sakina Khatoon, sister-in-law of the deceased, also supported that while cooking food on stove the tank of the stove had burst which caused fire in the Saree, burning the victim who died after forty days. Here attention was also drawn towards the statement made before Police and she denied having told earlier that the father-in-law, mother-in-law, Nanad and Dewar had poured kerosene oil and put her on fire. She also said that all had good relationship.
13. P.W. 5, Shafique Alam, the elder brother of the husband also gave similar statement as PW 4 and claimed that the stove had burst causing fire to the deceased. He is also a witness to the seizures of the burnt portions of Saya, Saree and blouse and identified his signature over the seizure list (Exhibitl) but claimed that he had signed over blank paper.
14. When attention of this witness was drawn, he, similarly, denied having told the police that (from his room) when he had gone to Shama Parveen she had blamed the same persons as in the First Information Report for putting her on fire with the help of kerosene oil. He also said that she had good relationship with her 'Sasural' people.
15. Significant in this regard is also evidence of P.Ws. 8 and 9, the parents of the deceased, who also have gone hostile. PW. 8, the mother told that about three years back the deceased was married to Shamsher Alam, and on the fateful day, when they had received the news that her daughter had received burn injuries, they went to her house and found her burnt and came to know that she was burnt while cooking food. She also said that they all had taken her to the hospital where she had died on 17.7.1992. She also denied that she had told the Police, when her attention was drawn to the previous statement, that in the marriage she had given dowry but the accused persons always used to torture her for dowry. She also denied having told the police that her daughter had told her that aforesaid four relatives had poured kerosene oil over her and had put her to fire. She also said that Shama Parveen used to praise her 'Sasural' people and had a good relationship with them. She also claimed that in the hospital she had a talk with the victim who told that she had caught fire while cooking.
16. P.W. 9, the father also gave almost similar evidence claiming that he came to know that she had caught fire while cooking food. He also told about the treatment and her death on 17.7.1992. He denied that on 18.7.1992 he had given his statement before the Officer-in-charge, Magadh Medical College Police Station but admitted his signature over that when such statement was shown (Exhibit 3). According to the evidence of the Court witness No. 1, she claimed that it was this witness (P.W. 9) who had given that statement, and she also proved the statement which was marked Exhibit-9. This witness also denied that in previous statement to the Police he had told about torture by the accused persons for dowry or that the daughter had told him that the aforesaid four persons had put her to fire. He also claimed that both the sides had good relationship. He also said that after the occurrence the victim had told that she had caught fire while cooking, and had never complained against her Sasural people. Insofar as the evidence of this father witness is concerned, this almost borders on perjury. This witness has claimed that just after the occurrence the deceased had told him that she had caught fire while cooking and also has claimed that she never had complained against her Sasural people. However, when the Fardbeyan was recorded he appears to be present there and had also signed over the First Information Report as a witness to it. Not only this, in the First Information Report the victim has clearly stated that it was this witness who had read over her statement to her and finding the same to be correct and having understood that, she had put her thumb impression. This Fardbeyan is anything but in praise of her Sasural people, and nowhere it endorses the claim of this witness that the victim had told him that she had caught fire while cooking. Moreover, after death this witness appears to have given his statement to the Police as Fardbeyan but since the statement of the victim had already been registered as First Information Report, that could only be treated as the statement of this witness made to a Police Officer who was not the Investigating Officer. This witness had denied having made any such statement but Court witness No. 1 has proved that this statement was made by him, which supports the allegations made in the Fardbeyan.
17. The Investigating Police Officer has not been examined as a witness in this case. Attention of the witnesses who had turned hostile was drawn to their previous statements made before the Police. In absence of the examination of Investigating Police Officer, confirmation of such contradictions could not be taken from him. A question, thus, arises as to whether Under Section 172 of the Code of Criminal Procedure the Court can look into the case diary to find out as to whether or not actually those witnesses had given such statements. Sub-section (2) of Sections 172 of the Code of Criminal Procedure runs as follows;
'172 (2)-Any Criminal Court may send for the Police diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial.'
Therefore, this provision empowers a Court to send for the case diary of a case under trial which may also use the diary, but only for the purpose to aid the Court in such trial, not as evidence in the case. This makes clear as to what extent the case diary may be used by a Court in a trial, but the limitation is that it cannot be used as evidence.
18. A case diary may be considered in two parts, the first part containing such portions of the diary in which the Police Officer has recorded statement of witnesses about the incident or about other relevant facts which to that Police Officer, would be hearsay. The second part of the case diary contains that portion in which the Police Officer has himself seen or heard a particular fact and has recorded a fact out of his own perception. To this category would come the recording about the inspection of the place of occurrence, or making of seizures of certain incriminating articles or, in some cases: when the Police Officer reaches the place of occurrence where the occurrence has not finished and he sees himself the whole or part of the occurrence, the recording of that. The latter part of the case diary cannot be used by the Court unless the Investigation Officer is examined because that would amount to using that portion of the case diary as evidence. Only the Investigating Officer can tell the Court in witness box as to what were his findings out of his own perception, so that he can be put to cross-examination over that.
19. However, the first part of the case diary consists, as already noted, the statements recorded by the witnesses. If the Investigating Officer comes to the Court for evidence and if he is asked to confirm those portions of the statement of the witness to which the attention of the witness was drawn, the Investigating Officer will say only what he has recorded as his statement in the case diary and cannot go beyond that. Now the question is, whether that portion of the case diary can be looked into by the Court and used in the trial to aid the Court in reaching at a correct decision. Sub-section (2) of Section 172 of the Code of Criminal Procedure provides that the Court not only can call for the case diary but may also use such diaries to aid it in such trial If the Court only has the power to look into the case diary and whatever it peruses, to keep it only in mind and then to proceed to record the judgment keeping such impression only in mind that, in our opinion, cannot be the intention of the legislation. If the Court peruses any such thing and uses it to its aid in trial, this must go in black and white as part of the judgment. The only limitation is that the Court cannot use any portion of the case diary as evidence.
20. In a large number of cases that we come across, the Investigating Officer is found not to have been examined. Hardly any case comes to trial now-a-days within a reasonable period. Any number of cases could be found to have seen the trial even after a decade of the occurrence. In such circumstances, the Police Officers get transferred and the Court which gets minimal help from the Administration in general cases, sometimes fails to bring the Investigating Officer to the witness-stand without involving unusual delay. In such cases the Court is forced to close the prosecution case without examining the Investigating Officer. But when attention of witnesses has already been drawn towards their previous statement then, as already noted, the Investigating Officer even if he is brought to the Court will affirm only what he had noted in the case diary. He cannot add or subtract from that. Therefore, confirmation from the Police Officer of the statements of the witnesses given to it is more or less a formality. If Investigating Officer could not be brought to give his evidence, in our opinion, only in aforesaid circumstance, the Court can peruse the case diary to find out as to whether or not the attention of the witnesses towards their previous statements were or not correctly drawn. We also hasten to add here that if no such attention has been drawn of the witnesses examined in the Court, then the Court cannot look into the case diary only to satisfy itself as to whether or not they had given similar statement before Police. That would violate provisions Under Section 145 of the Indian Evidence Act. In our opinion, therefore, the Court can use the case diary for the limited purpose, as indicated above, under the provisions of Section 172(2) of the Code of Criminal Procedure.
21. We have gone through the statement of the witnesses declared hostile and their attention drawn to their particular statements made before the Police and find that their attention was properly drawn.
22. Therefore, it will appear that in their evidence in the Court those witnesses had changed their stand and had gone to the extent of claiming that the deceased not only had died while cooking food, but earlier also had very good relationship with her Sasural people. All these claims stand falsified by none other than the two statements of the victim herself. If she had no complaint against her in-laws and she was well treated by them and had told even her parents that she had caught fire while cooking, then on the date of occurrence itself and, secondly, two days thereafter in presence of a Magistrate, she would not have made such allegations against the same people while lying on death bed. Her dying declaration inspires confidence also because in her statement she has not implicated other in-laws present in the home, namely, P.W. 4. Sakina Khatoon, 'Gotni' and P.W. 5, Shafique Alam, the elder brother of her husband. In her Fardbeyan she had even claimed that Shafique Alam had tried to extinguish the fire. She had no complain either against her husband. Now coming to her dying declarations, the Fardbeyan has already been referred to. The dying declaration made before a Judicial Magistrate is Exhibit-7 which was recorded on 9.6.1992 at 6.30 p.m. in presence of one Dr. Nilamber Milay, an internee. Court witness No. 2 had said that he had recorded dying declaration of Shama Parveen, also telling the Court that she had given her statement while fully conscious. He also proved the dying declaration recorded by him, also telling the Court that after recording, the statement was read over to the maker and finding that true she had affixed her right thumb impression over that. This witness said that he had recorded the statement on receipt of order of the Chief Judicial Magistrate, Gaya. In cross-examination he also said that statement of the deceased was written in Hindi as she had narrated. He also proved his certificate given below the recorded statement. This witness said that at the time of recording the statement, he was with a doctor who had given a certificate that the statement was recorded in his presence and also had certified that the victim was in a fit condition to give her statement, whereafter he had recorded the same. He has said that the doctor had given his certificate at the top of the statement which doctor had written and signed in his presence. This way he had also proved the certificate given by the doctor. This statement, according to the witness was taken in the Surgical Ward of the Magadh Medical College Hospital. He also said that as per certificate Dr. Nilamber Milay was an internee in the hospital. This witness clarified that the Medical Officer-in-charge of the case, was not available, hence his certificate could not be taken.
23. Now coming to the statement recorded by the Magistrate, Dr. Nilamber Milay appears to have given following certificate
'I Dr. Nilamber Milay on duty in Surgical Ward on 2.00-9.00 p.m. on Tuesday, 9.6.1992, do hereby certify that the patient in Bed No. 95 Shama Parveen is, in position to give her statement before the Magistrate who had reached to record it-
This has been signed by the doctor. However, this dying declaration is in shape of a narration. This is most important document, hence this may be reproduced in English
'I, Shama Parveen, wife of Shamsher Alam, resident of Mohalla Raniganj, P.S. Tekari, District Gaya in the Ward of Magadh Medical Hospital, am voluntarily giving statement before Magistrate that on the last Sunday at about 7.00 a.m. while I was trying to make my girt child Chandni, aged about two years, sleep my mother-in-law came and asked as to what I was doing and I told that I was putting the child to sleep. Thereafter, my father-in-law also came in and he and my mother-in-law asked me to rise, asking what I was doing. Thereafter, mother-in-law and sister-in-law (Nanad) came in the room and both caught hold of my hands and legs whereafter father-in-law, Md. Rafique Alam poured kerosene oil from a plastic container and put my cotton saree on fire with the help of match box. Those three went out of the house and bolted the door from outside and, .writhing, I cried for help. My husband was then returning from market and hearing my cry he asked Mohalla people as to what was happening at which Mohalla people told him that the door was closed which should be opened. Thereafter, they broke open the door but by then I had lost consciousness and did not know as to who had come. My Dewar Haroon was filthily abusing me and at the time I was being put to fire, my Dewar was standing at the exit so that no one could come inside. My husband was a tailor at Dhanbad and had come about eight days before occurrence. My husband loves me much, giving affection and had no hand in the incident. Mother-in-law, father-in-law, Dewar and Nanad always used to demand rupees ten thousand, asking me to bring from my father, for construction of a house and for installing a water tap. My father, Md. Idris, a resident of Gowal Bigha, Gaya is a poor man and could not give the money. My age is eighteen years and I was married three years back. My whole body had been burnt and I apprehend that I shall not survive. Hence, I am giving my statement fully conscious and voluntarily so that the same may be used at a proper time. My husband had come to the Hospital today and my Bhainsur (Shafique Alam) had informed my father and mother who had come that very day to my Sasural and took me to Gaya Medical (Hospital). I was then a little conscious from inside but was not able to speak. Even now sometimes I fall unconscious and suffer from intolerable pain and burning sensation in the whole body. I claim that my mother-in-law, Nanad, father-in-law and Dewar had knowingly put me to fire.'
24. Below this the Magistrate has given a certificate that he had read over the statement to the victim lady, Shama Parveen, in Hindi and finding that correct she had put her right thumb impression below that. There is further certificate of doctor Nilamber Milay that statement was recorded in his presence.
25. The question is, as to whether or not a conviction can be based, as has been done by the learned lower Court, on the dying declaration of the victim. Learned Counsel for the appellants has submitted that the statement recorded was not in question and answer form and could not be acted upon and, for this, has relied on a decision of the Madhya Pradesh High Court in the case of Ram Bai v. State of Madhya Pradesh, 1990 Cr. L.J. NOC 107. Even from perusal of the short notes about the judgment it will appear that the reliance was not placed as the dying declaration, not in question and answer form, was recorded when the deceased had sixty percent injury and medical evidence revealed that the victim was in a critical condition. In this case the facts are otherwise. A doctor who was deputed in the concerned ward had certified that the victim was in fit position to give her statement whereafter her statement was recorded in his presence. Learned Additional Public Prosecutor has placed the decision of the judgment of the Apex Court in the case of Ram Bihari Yadav v. State of Bihar, AIR 1998 SC 1850. In that case the dying declaration was recorded by the Police Officer which was not in question and answer form nor any certificate of the doctor was appended. Referring to some other decisions of the same Court, Their Lordships said that in those decisions the Apex Court had not laid down that unless the dying declaration was in question and answer form, it could not be accepted. It was also observed 'having regard to the sanctity attached to a declaration as it comes from the mouth of a dying person it should be in the actual words of the maker of the declaration.' Since in that case the dying declaration was short one, Their Lordships also observed that such dying declaration should not be required to be recorded in question and answer form. Their Lordships also noted that the mental condition of the maker of the declaration, alertness of mind, memory and understanding what he was saying, were matters which could be observed by any person, but to lend assurance to those factors having regard to the importance of the dying declaration, a certificate of a medically trained person was to be insisted upon. Their Lordships also observed that in absence of availability of the doctor to certify the above mentioned factors, if there was other evidence to show that the recorder of the statement had satisfied himself about those requirements before recording the dying declaration there was no reason why the dying declaration should not be accepted.
26. In the dying declaration recorded by the learned Magistrate a qualified doctor had certified that she was in a position to give her statement and as per Magistrate, that was recorded in her own words, in Hindi. There is nothing on record to disbelieve the claim of the learned Magistrate in that regard.
27. The difference between the Fardbeyan and dying declaration recorded by the Magistrate may be noticed. In the Fardbeyan though the victim had assigned the same role to the mother-in-law, sister-in-law and the father-in-law, but she had stated that match box was used upon her by her Dewar whereas in Exhibit-7 she has claimed that after pouring the kerosene oil it was the father-in-law himself who had put her to fire with the help of match box.
28. It may also be recalled here, while considering this aspect, that charge was not framed Under Section 302 of the Code hence there cannot be any conviction for committing that offence. This statement is to be looked for sustaining or not sustaining the conviction Under Section 304B of the Code and under the provisions of the Dowry Prohibition Act. Section 304B of the Code is reproduced below-
'304-B (1) 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 for, or in connection with, any demand for dowry, such death shall be called 'dowry death' and such husband or relative shall be deemed to be have caused her death.
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.'
29. It has not been denied that the victim had died within seven years of marriage and had died of burn injuries. Therefore, to sustain charge Under Section 304B of the Code what more has to be seen is as to whether or not soon before her death she was subjected to cruelty or harassment by her husband or any relative or her husband, for or in connection with, any demand for dowry. If that is proved, the death of the victim can be termed to be a dowry death and such relative/relatives of her husband shall be deemed to have caused her death thereby having committed offence Under Section 304B of the Code. There is no need to take help of Section 113B of the Indian Evidence Act, 1872 as was argued by the learned Additional Public Prosecutor, as there is no need of presumption as to the death if the dying declaration is accepted.
30. Now coming to the discrepancy between the two statements, evidence of PW 1 may first be seen. Fardbeyan was recorded by a Police Officer the same day the victim had suffered intensive burn injuries. In Exhibit-7 the victim herself had said that on that day she was not in a position to speak as she was not fully conscious. Upon the Fardbeyan it does not appear that the Court witness No. 1 had taken any step to consult the doctor as to whether or not she was in a position to give her statement. Therefore, some slip by her in such a statement cannot be overruled.
31. On the other hand, on 9.6.1992, that is, two days after the incident the victim had already received treatment she was still in pain as told by her in Exhibit 7 who also said that sometimes she fell unconscious but obviously during recording of her statement, she was in full senses and appears to have given a coherent statement, in presence of a doctor. The Magistrate also had said in his evidence that the victim while giving her statement was fully conscious. Therefore, much cannot be read into the discrepancy in between the Fardbeyan as dying declaration, and Exhibit-7.
32. In her Statement in Exhibit-7 the witness has told about tortures upon her by the accused persons on account of demand of dowry. Learned Counsel for the appellants has argued that in the Fardbeyan the informant had said that in the first two years of marriage the accused had asked her to fetch rupees ten thousand for sewing machine but in her statement before the Magistrate she has said that she was asked to bring the money for construction of house and for installation of water-tap.
33. In the Fardbeyan itself this witness has claimed that at the earlier stage she had brought money from her father and had given that to them, but they again renewed their demand for money, and for non-fulfilment of this demand she was burnt by them. Therefore, the cause of torture as given in Exhibit-7 relates to the second demand for money.
34. Insofar as the torture soon before her death is concerned, she had died on 17.7.1992 having burnt on 7.6.19 92. Therefore, before her death on 17.7.1992 attempt that was made to burn her by the appellants is a clear case of inflicting physical torture upon her for non-fulfilment of the demand of dowry. The demand of dowry being the cause for making attempt to kill her as has come in her statement, would be admissible Under Section 32(1) of the Indian Evidence Act. In the dying declaration the deceased has told the cause of death as also the circumstances which resulted in her death.
35. It was also argued on behalf of the appellants that the doctor had found that she was burnt on the front side which could not have been the case if she was poured kerosene oil. But if she had caught fire if the metal container of the stove had burst, that was also likely to cause some injuries apart from the burning. Even if kerosene oil was poured on the front side and the cotton saree was put to fire, or if she had caught fire from a stove, front side would burn first and subsequently it would spread to the other side also. What the doctor witness had said was that most of the injuries were on front part of her body but her whole skull was involved, not that only front part was involved. Therefore, this point does not help the defence.
36. In the result, we find that the dying declaration in Exhibit-7 is acceptable as voluntary, made while in full senses, depicting, correct picture of the incident that took place, leading to the death of the maker of the statement. That being so, conviction can be based upon such a dying declaration. In the circumstances the death was caused, and in view of the part played by the appellants, we find that the sentence is also justified. The offence that was committed was plain and simple murder, though the appellants cannot be convicted for that in view of the charge framed, apart from dowry-death, and a painful death at that, the agony containing for about forty days.
37. It may be noted that no arguments on either side were advanced against convictions Under Sections 3 and 4 of the Dowry Prohibition Act. We are not entering into that aspect of the matter, the sentences running concurrently.
38. That being so, we find no merit in the appeal which is dismissed.
39. Learned lower Court is directed to take the appellant Nos. 1 and 2, who are on bail, in custody and consign them to jail custody for undergoing the rest of their sentences.