IMPORTANT POINT
The court upheld that a dying declaration must be corroborated and cannot solely rely on presumption under Section 113-B without evidence of cruelty or harassment.

ORDER :

1. As per the orders of the Hon’ble Chief Justice the instant petition is listed under the category of legacy matters, for efficacious and expeditious disposal of the same.

2. The instant petition is filed under section 397 read with 401 of Cr.P.C. assailing the judgment dated 16.12.2003 passed by the Additional Sessions Judge (Fast Track) No. 3 Court, Ajmer-Camp-Kishangarh in Sessions Case No. 4/2003, whereby the accused-respondents (respondent no. 2 and 3) have been acquitted from the charges under sections 498-A and 304-B of I.P.C.

3. The nitty-gritty of the instant matter is that the complainant-petitioner on 05.06.2002 lodged a complaint/report with Police Station Madan Ganj, Ajmer, stating that his sister (Pramila-deceased) was married to Shri Manmohan Soni (respondent no. 2) on 05.02.1998, has died. The contents of the said complaint explicitly notes that the family of the deceased at the time of marriage has gifted several precious gifts along with Rs. 1,00,000/- (Rupees One Lac Only) to the respondents. Subsequently, on 17.02.1998 a demand draft of Rs. 25,000/- (Rupees Twenty Five Thousand Only), along with Rs. 20,000/- (Rupees Twenty Thousand) was drawn in favor of/ given to the respondents, at the time of the birth of their (deceased and the respondent no. 2) child on and around 29.01.2000.

4. The complainant also noted that the respondent no. 2 was an alcoholic man who under influence of toxicants and verboten relationship with some other woman, has harassed the deceased.

5. On 27.05.2002 the uncle (fufaji) of the deceased informed the complainant that his sister and her son (Chinchin) met with an accident and is severely burnt. Consecutively, the complainant initiated criminal proceedings against the respondents, registered as 228/2002 for offences under sections 304B, 498A, 406, 120B of I.P.C. Resultant, to the said proceedings, the spot inspection report (naksha muaayana report) dated 27.05.2002, postmortem of the deceased and her son, and statements of witnesses were recorded. Thereafter, during the currency of the said litigation, several witnesses including the complainant-petitioner, eye-witnesses, uncle of the deceased (Shri Natwarlal), the doctor who conducted the examination and postmortem of the deceased, were examined before the Magistrate.

6. In this backdrop, learned counsel appearing on behalf of the complainant had averred that the impugned judgment dated 16.12.2003 is passed without considering the vital aspects of the instant matter. Further, learned counsel had placed reliance upon the provisions of Section 113B of the Indian Evidence Act, 1872 and had submitted that the said provisions categorically state that it shall be presumed that if a woman dies, after being victim to harassment and cruelty, on demand of dowry, the said offence ought to be considered as a dowry death. For the sake of convenience the relevant provision is reproduced herein-below:

“113-B. Presumption as to dowry death - When the question is whether a person has committed the 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 to dowry, the court shall presume that such person had caused the dowry death.

Explanation: For the purpose of this section ‘dowry death’ shall have the same meaning as in section 304-B of Indian Penal Code.”

7. Further, reliance was placed upon Rule 6.22 of the Rajasthan Police Rules, 1965 and had submitted that the said provisions make it mandatory and obligatory that the person whose dying declaration is being noted, has to be examined by a Medical Officer to substantiate the fact qua her/his soundness of mind and reasonability to think. Howbeit, in the matter in hand the said provisions were not followed. For the sake of convenience the said provision is reproduced herein-below:

“6.22 Dying declarations:

(1) A dying declaration shall, whenever possible, be recorded by a Magistrate.