Judgment:
O.P. Bishnoi, J.
1. This appeal has been filed by Ganpat Singh, his mother Chhoti Devi and father Nahar Singh who have been convicted by the learned Additional Sessions Judge, No. 2, Jodhpur vide her judgment dated 31-3-2001 for the offences punishable under Section 498-A and 304-B, IPC. For the offence under Section 498-A, IPC, each one has been awarded S.I. for three years and a fine of Rs. 1,000/- and two months' S.I. for nonpayment of fine. For the offence under Section 304-B, IPC each one has been awarded S.I. for a period of seven years. All the three accused-persons were acquitted of the charge under Section 302, IPC.
2. The prosecution story, in brief, is that during the night intervening 7/8th August, 1999, Smt. Sajjan Kanwar wife of the appellant Ganpat Singh received severe burns in the 'Kitchen' of her husband's house and was rushed to Mahatma Gandhi Hospital, Jodhpur for treatment by the appellants. The appellant Nahar Singh (father-in-law) went to the parental house of Sajjan Kanwar and informed her mother PW 5 Munni about the incident. Sajjan Kanwar's sister PW 15 Gulab Kanwar was present with her mother and after receiving the news, she went to her husband PW/4 Madan Singh. Madan Singh despatched PW/6 Nathu Singh and PW/16 Prem Singh, who in a jeep went to village Dabar and informed PW. 1 Amar Singh (father of Sajjan Kanwar) and informed him about the incident and Amar Singh returned with them to hospital in the morning in between 7-8 a.m. However, prior to his arrival, Sajjan Kanwar succumbed to the burns at 7.05 a.m. In the meanwhile, at about 2.00 a.m. in the night, PW. 7 Kishan Singh made a telephone call to the police station, Mahamandir and informed about the burning of Sajjan Kanwar. Kishan Singh is said to be a neighbour of the accused-persons and was informed about the incident by the appellant Nahar Singh sometime between 1.30-2.00 a.m. He advised the appellants to rush Sajjan Kanwar to the hospital whereupon, the appellant Nahar Singh requisitioned a 'Taxi' and Sajjan Kanwar was taken to the hospital. At about 10.15 a.m. in the morning, PW. 1 Amar Singh gave a written FIR Ex. P/1 to PW/12 Bhim Singh, Sub-Inspector of Police Station, Mahamandir, who had reached the hospital after receiving the telephone from. Kishan Singh. A case under Section 304-B and 498-A, IPC was registered. After usual investigation, challan was filed against the three appellants in the Court of Additional Chief Judicial Magistrate, No. 3, Jodhpur, from where, the case was committed to the Court of Sessions Judge, Jodhpur, from where, it was transferred to the said trial Court. On 27-11-99, the appellants were charged for the offences under Section 498-A and 304-B, IPC. All the three appellants pleaded not guilty to the charges. As many as 18 witnesses were examined by the prosecution. Thereafter, the three appellants were further charged for the offence under Section 302, IPC, to which, they pleaded not guilty. The statements of the accused-persons were then recorded under Section 313, Cr. P.C. DW. 1 Sohan Kanwar was examined in defence. She has deposed to the effect that Sajjan Kanwar used to live separately with her husband and the other two appellants were living separately. Regarding the incident, the witnesses stated that she heard the cries of the appellants Nahar Singh and Chhoti Devi and rushed to their house along with other neighbours where Sajjan Kanwar had received burns and told them that her husband Ganpat Singh had not taken his dinner and while she was preparing the dinner for her husband, she received the burns accidentally. According to the witness, Sajjan Kanwar was taken to the hospital and there also, she stated that none was responsible for the burns. Learned trial Judge then heard the arguments and delivered the judg- ' ment on 31-3-2001, against which, this appeal has been filed.
3. I have heard learned counsel for the appellants and the learned Public Prosecutor for the State.
4. It is argued by the learned counsel for the appellants that there was no proper evidence to find the appellants guilty but the learned trial Judge has still recorded the findings of guilt. It is submitted that without any specific evidence, the appellants have been found guilty and the conclusions drawn by the learned trial Court are not at all sustainable. My attention has been drawn to the contents of the FIR Ex. P/1 and it is argued that subsequently, the story has been improved and the evidence which has come, does not inspire any confidence. The learned Public Prosecutor has supported the conclusions of the learned trial Court.
5. PW. 1 Amar Singh is the father and PW 5 Munni is the mother of the deceased Sajjan Kanwar. PW 15 Gulab Kanwar is the sister of Sajjan Kanwar and PW 4 Madan Singh is husband of PW. 15 Gulab Kanwar. PW. 16 Prem Singh is the brother of PW. 4 Madan Singh.
6. PW. 4 Madan Singh, PW. 5 Munni and PW 15 Gulab Kanwar are said to be the persons who reached the hospital while Sajjan Kanwar was alive and all the three have deposed to the effect that when they reached, Sajjan Kanwar was talking and she told them that the three appellants and one more Kaloo Singh forcibly took her to the 'kitchen' and after sprinkling kerosine on her, she was put to fire by all the four persons. Kaloo Singh is the elder brother of the appellant Ganpat Singh. P.W. 16 Prem Singh has stated that he was instructed by his brother PW. 4 Madan Singh to trace PW. 1 Amar Singh (father of Sajjan Kanwar) and at that point of time, PW. 4 Madan Singh also informed him that Sajjan Kanwar was put to fire by her in-laws.
7. After considering the whole evidence, I find that both the sides are residents of Jodhpur. The accused-persons are residents of Tilak Nagar, Jodhpur and the complainant side resides in Bhagat Ki Kothi area, Jodhpur. Barring the mother, father, sister and PW. 4 Madan Singh (sister's husband), there is no independent person in support of the prosecution allegations. Neither any neighbour from Tilak Nagar area nor any neighbour from Bhagat-ki-Kothi area has been examined in support of the prosecution story. It appears that the investigating officer investigated the case with a closed mind and he had no interest to investigate the case in an objective manner. PW. 1 Amar Singh, PW. 5 Munni and PW. 15 Gulab Kanwar have stated in an omnibus manner that the deceased Sajjan Kanwar was harassed in connection with demand of dowry and was beaten black and blue a number of times by her in-laws. No date; year or month of any such beating have been disclosed. No partcular incident of beating has been narrated. Had there been any truth in the story of occasional beating, it was natural that the neighbours would come to know about it. It was the bounden duty of the Investigating Officer to examine the persons of the neighbour-hood but none was examined. PW. 2 Narpat Singh and PW. 7 Kishan Singh are the immediate neighbours. None of them have stated that the relationship of Sajjan Kanwar with the accused-persons was strained or she was ever mal-treated or any demand of dowry was ever made. According to PW. 2 Narpat Singh, he is a close relation of the complainant side. PW. 3 Kishan Singh and PW. 16 Prem Singh are residents of Bhagat Ki Kothi area. They also do not say that prior to 7-8-99, any untoward development came to their notice. PW. 6 Nathu Singh is an independent person who went to search and informed Amar Singh about the incident. PW. 5 Munni has stated that after receiving the information from Sajjan Kanwar about her murder by the appellants by putting her to fire, PW. 6 Nathu Singh was instructed to inform and bring PW. 1 Amar Singh. She has specifically stated that everything was told* to Nathu Singh by her before he was sent to bring Amar Singh. However, PW. 6 Nathu Singh does not say that any such thing was told to him by PW. 5 Munni or by some-body-else. It has come in the testimony of PW. 5 Munni, P.W. 15 Gulab Kanwar and PW. 4 Madan Singh that the police arrived in the hospital before they reached there. PW. 5 Munni has stated that the police actually recorded the statement of her daughter Sajjan Kanwar. P.W. 15 Gulab Kanwar has gone to the extent by saying that the statement was recorded by the police, which was 'thumb marked' by Sajjan Kanwar. No police person, however, corroborates this allegation that Sajjan Kanwar made any oral or written dying declaration. I find the testimony of PW. 15 Gulab Kanwar, PW. 5 Munni and PW. 4 Madan Singh, in respect of the alleged dying declaration, to be entirely false and concoction and an after thought. PW. 4 Madan Singh has stated that the doctor and the nursing staff was present when the alleged dying declaration was made. However, no doctor or any member of the Nursing staff has supported this version of PW. 4 Madan Singh.
8. As pointed earlier, PW. 1 Amar Singh reached the hospital in between 7-8 a.m. on 8-8-99 and prior to his arrival, Sajjan Kanwar had died. PW. 5 Munni has admitted that the police was present but they decided not to lodge any FIR because they were of the view that after arrival of PW. 1 Amar Singh, they will think as to what report is to be lodged and who is to be implicated and who is not to be implicated. She has further admitted that after arrival of his husband Amar Singh, they held a meeting and after due deliberation, the FIR was lodged in the hospital itself at 10.15 a.m. It is pertinent to note that there is no allegation of the alleged dying declaration in the FIR Ex. P/1 which was lodged with considerable delay and with due deliberation. In view of this, it becomes clear that the story of oral dying declaration has nothing to do with reality and is a result of some after thought which occurred much after lodging of the FIR. It -will not be out of place to point out here that the statements Ex. D/1 and Ex. D/3 of PW. 5 Munni and PW. 15 Gulab Kanwar were recorded on 12-8-99, although they were admittedly available in the hospital on 8-8-99 itself... It is, thus, not at all acceptable that Sajjan Kanwar made any oral dying declaration in the hospital. The FIR Ex. P/1 makes an omnibus allegation to the effect that the appellants and Kaloo Singh used to beat her occasionally and used to taunt her for not bringing sufficient dowry but strangely enough, no specific Incident of any beating or demand of dowry is disclosed in the FIR. It Is mentioned that 'cash' and 'jewellary' was demanded but it is not disclosed as to how much cash was demanded or in respect of what Jewellary the demands were made. PW, 1 Amar Singh has nowhere made it clear as to how much cash was demanded or what ornaments were demanded, He has stated to the effect that the appellants threatened to kill Sajjan Kanwar unless their demands were acceded to. However, the FIR Ex. P/l does not make any mention of such a threat. Similar is the testimony of PW. 5 Munni and PW. 15 Gulab Kanwar, I find the testimony of Amar Singh, Munni, Gulab Kanwar and Madan Singh highly unreliable and unacceptable. The subsequent improvement about the alleged dying declaration by them leads to only one conclusion that they have no respect for oath and they have no hesitation in telling a lie on oath.
9. So far as the offence under Section 304-B, IPC is concerned, there is no evidence to the effect that soon before the incident, any demand for dowry was made by any of the appellant. The prosecution witnesses including PW. 5 Munni have admitted that the husband and wife (Ganpat Singh and Sajjan Kanwar) had a quarrel soon before the incident and the cause of quarrel was that Ganpat Singh refused to take his evening meal and went to sleep without taking the dinner. The Investigating Officer PW. 18 Kalyan Singh has admitted this fact during his cross-examination. In these circumstances, there remains no basis for convicting the appellants under Section 304-B of the Indian Penal Code.
10. I find that the evidence which has come on record falls much short of proving the charge under Section 498-A, IPC. To prove the evidence of cruelty, it has to be established that the conduct of the accused-persons was such, which was extremely painful and distressing to Sajjan Kanwar and the prosecution has to prove that the woman in question was tortured in a manner as to find the accused guilty for the offence punishable under Section 498-A, IPC.There is no such evidence on record of this case.
11. Consequently, the appeal is allowed. The appellants are acquitted of the charges. The amount of fine, if deposited by them, shall be refunded.