The main legal point established is the application of the presumption of dowry death under section 113B of the Indian Evidence Act and the admissibility of dying declarations in establishing the offence of dowry death.

Prafulla C. Pant, J.

This appeal, preferred under section 378 of Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against the judgment and order dated 10.02.2000, passed by learned Sessions Judge, Pauri Garhwal, in Sessions Trial No. 32 of 1997, whereby said court has acquitted the accused/respondents Anand Mani and Purna Nand from the charge of offence punishable under section 498A/34 IPC, and under section 304B/34 IPC, and from the alternative charge of offence punishable under section 302/34 IPC.

2. Heard learned counsel for the State, learned Amicus Curiae for the respondents and perused the lower court record.

3. Prosecution story, in brief, is that accused/ respondent no. 1 Anand Mani got married to Kiran (deceased) in the intervening night of 9th and 10th of March, 1995. Customary dowry said to have been given in the marriage by the parents of the deceased but the accused/respondents were not satisfied with the dowry, and they used to make demand of dowry, and for non fulfillment of demand of dowry the deceased was subjected to cruelty. On 30.12.1996, Kiran died of asphyxia as a result of ante mortem burn injuries. First Information Report (Ex. A2) was got lodged on 31.12.1996, by P.W.4 Virendra Prasad Bhatt (brother of the deceased) alleging that accused/respondent no. 1 Anand Mani used to make demand of dowry, and subjected Kiran to cruelty in connection therewith. He (P.W.4) further alleged that before the relatives from the parental side could reach, the dead body was disposed of by the accused. It is also alleged in the FIR by the brother of the deceased that Kiran had expressed her apprehension to him that she could be killed if demand is not met. On the basis of first information report, crime no. 9 of 1996 relating to offence punishable under section 304B IPC, was registered by Mahila Police Station, Srinagar (District Pauri Garhwal) against accused/respondent Anand Mani and his brother Purna Nand and other relatives. The crime was investigated by P.W.6 Station Officer Uma Shukla who interrogated the witnesses and inspected the place of incident. It appears that the burn injuries were suffered by Kiran on 29.12.1996, and she was taken to base hospital Srinagar (District Pauri Garhwal) where she succumbed to injuries on 30.12.1996. On receipt of information of unnatural death from said hospital (before first information was lodged), police of Mahila Police Station went to said hospital on 30.12.1996, took dead body of Kiran in their possession and inquest report (Ex. A5) was prepared. The Station Officer of Mahila Station further prepared letter to Chief Medical Officer (Ex.A6 requesting for post mortem examination), sketch of dead body (Ex. A7), sample seal (Ex. A8), police form no. 13 (Ex. A9). P.W.3 Dr. A.K. Gupta alongwith Dr. S.D. Agarwal conducted post mortem examination on the very day (30.12.1996) at 3:45 p.m. The team of medical officers after recording ante mortem burn injuries in the autopsy report (Ex. A1) opined that the deceased (Smt. Kiran) had died of asphyxia as a result of ante mortem burns. The Investigating Officer, after completion of investigation submitted charge sheet (Ex.A13) against accused/respondent no. 1 Anand Mani and his brother Purna Nand (respondent no.2) for their trial in respect of offence punishable under section 304B IPC.

4. The Magistrate, on receipt of the charge sheet, after giving necessary copies to the accused as required under section 207 Cr.P.C., appears to have committed the case to the court of Sessions for trial. Learned Sessions Judge, Pauri Garhwal, on 04.07.1997, after hearing the parties, framed charge of offence punishable under section 498A/34 IPC and under section 304B/34 IPC, against both the accused Anand Mani and Purna Nand. The trial court further framed alternative charge of offence punishable under section 302/34 IPC against the two accused. Both of the accused pleaded not guilty and claimed to be tried. On this, prosecution got ex