The main legal point established in the judgment is the requirement for corroborative evidence in cases of contradictory dying declarations and the necessity to establish cruelty or harassment soon before the victim's death to prove dowry death under Section 304B and Section 498A of the Indian Penal Code.

JUDGMENT :

Prathiba M. Singh, J.

1. The present appeal has been filed by the Appellant, Ram Parkash @ Bittoo challenging his conviction vide judgment and sentence dated 25th January, 2002 under Section 304B and 498A read with Section 34 of the Indian Penal Code. it is relevant to note that the trial court record, in the present case, is not available. Repeated attempts were made to reconstruct the record especially as the appeal was of the year 2002. However, the trial court finally submitted a report saying that the record is not traceable in the Tis Hazari Courts. Thus, the only record available is the judgment of the trial court. The appeal is thus being decided merely on the basis of the impugned judgment as no other record is traceable.

2. Ram Parkash was married to Smt. Vandna on 29th June, 1997. The incident took place on 4th December, 1998. On 5th December, 1998, she died an unnatural death.

3. The incident, as reported by the first witness who reached the spot i.e. PW-4, Shri Gurmail Singh is that he was running a grocery shop in the vicinity of the house where the accused and the deceased lived. In the morning, between 10 a.m. to 10.30 a.m., while he was present in his shop, he was informed of smoke rising from the house of the accused. He reached the spot and found that the victim, Vandna was in flames and her child was lying on a cot in the outside veranda of the house. At the time he reached the premises, there was no one present in the house. He called the police and then called the father of Smt. Vandna. By the time, the parents reached the house she had been taken to Safdarjung Hospital. The victim gave three statements. The first statement was given at 11.45 a.m. The second statement was given in the afternoon and the third statement was given late in the evening at about 8.10 p.m.

4. The first statement was given to the doctor, PW-14, Dr. H.K. Sharma of K.G. Medical College, Lucknow who was posted as Senior Resident Medical Officer in Safdarjung Hospital. He was the first doctor to examine the victim when she was brought to the hospital in a burnt condition. The MLC prepared by him was marked as Exhibit PW-14/A. In the first statement which she made to the doctor, she informed him that she had poured kerosene oil on herself and set herself on fire. This statement of PW-14 is captured in paragraph 52 of the impugned judgment and is extracted herein below: -

“52. As regards the first dying declaration to PW-14 the same is very cryptic. PW-14, Dr. H.K. Sharma merely writes on the MLC EX.PW-14/A that the patient poured kerosene oil on herself and set herself on fire as informed by the patient. However, no attempt is made to know the details of the circumstances thereof. It is also not clear whether PW-14 had ensured that the victim injured was in fit state of mind at that time and capable of telling the truth or even trying to find out as to why she took such a step. In the absence of any explanation of the attending circumstances it is difficult to believe that the victim/injured was in a free state of mind to only come out with the alleged fact of setting herself on fire.”

5. In the second statement, the victim spoke to her parents. In this statement, she informed her parents that her mother-in-law had poured kerosene oil on her and had lit the matchstick in the presence of her husband and her brother-in-law. The third statement was given to PW-11, Shri B.S. Jaglan, S.D.M., Punjabi Bagh, in which she informed the SDM that her mother-in-law had poured the kerosene oil on her. On the basis of the last two declarations, the learned trial court came to the conclusion that the presumption of dowry death applies in the present case and hence while exonerating the brother-in-law, the mother-in-law and the husband were convicted vide the impugned judgment.

6. The appeal against the impugned judgment was filed on 21st November, 2002. Vide order dated 15th January, 2004, this Court while noticing that the accused has served almo