ROHIT B. DEO, J.

1. Challenge is to the judgment and order dated 29.9.2004, rendered by the 3rd Adhoc Additional Sessions Judge Wardha, in Sessions Trial No. 132 of 2002, by and under which, the appellants-accused are convicted for offence punishable under section 498A read with section 34 of Indian Penal Code (IPC) and are sentenced to suffer rigorous imprisonment for two years and to payment of fine of Rs. 5000/- each and are further convicted for offence punishable under section 304B read with section 34 of the IPC and are sentenced to suffer rigorous imprisonment for eight years.

2. Heard Shri M.I. Dhatrak, the learned counsel for the accused and Shri V.P. Maldhure, the learned Additional Public Prosecutor for the respondent-State.

3. The gist of the prosecution case is thus:

Deceased Surekha entered into matrimonial alliance with accused Rajesh on 9.5.2001. Concededly, Surekha suffered burn injuries on 16.6.2001 and expired at 7.00 a.m. on 17.6.2001. Shri Anandrao Thakare, the father of deceased (PW-12) lodged oral report (Exh.70) at Hinganghat Police Station on 17.6.2001 at 7.30 p.m. The gist of which oral report is that deceased Surekha suffered taunts from accused since she was of sallow complexion. On the basis of the said report offence punishable under section 498A, 306 and 304B of the IPC was registered at the Hinganghat Police Station. Record reveals, that the relatives of the deceased Surekha were not satisfied with the investigation conducted by the Hinganghat police and at their instance the Criminal Investigation Department (CID) took over the investigation some time in September 2001. The completion of the investigation led to submission of the charge sheet in the Court of Judicial Magistrate First Class, Hinganghat, who committed the proceedings to the Sessions Court. The learned Sessions Judge framed charge (Exh.15) for the offence punishable under section 498A, 304B read with section 34 of the IPC. The accused abjured guilt and claimed to be tried in accordance with law. The trend and tenor of the cross-examination and the statements recorded under section 313 of the Criminal Procedure Code reveal that the defence is of total denial.

4. Shri M.I. Dhatrak, the learned counsel for the accused submits that the prosecution has failed to establish that the possibility of the accidental death is excluded. Shri Dhatrak invites my attention to the admissions attracted in the evidence of the Investigating Officer (PW-19) Shri Vinod Wankhede, which is to the effect that the Investigating Officer recorded the statements of Dr. Gupta and Dr. Khandare on 1.2.2002 and the statements reveal that deceased Surekha disclosed to Dr. Gupta and Dr. Khandare that she suffered accidental burns while cooking. Shri M.I. Dhatrak then invites my attention to injury report Exh.44 which records alleged history of the injury as accidental burns due to gas flames. The injury certificate Exh.44 further records that the condition of the patient was stable, conscious, cooperative and oriented. The submission of the learned counsel is that the failure of the investigating agency to record the dying declaration of deceased Surekha, which dying declaration would have thrown light on the cause of death, is fatal to the prosecution case. The medical history is admissible in evidence, is the submission. Since the deceased Surekha was stable, conscious and well oriented, the possibility of somebody else having narrated the medical history is remote, is the submission. Shri M.I. Dhatrak, would submit, that even if, arguendo, it is assumed that the death of Surekha was suicidal, the prosecution has not established the sine quo non ingredients of offence punishable under section 498A or 304(B) of the IPC.

5. In rebuttal, Shri V.P. Maldhure, the learned Additional Public Prosecutor would submit that the evidence on record clinchingly establishes that the deceased was subjected to cruelty within the meaning of section 498A of the IPC explanation (