The burden of proof in dowry death cases lies on the accused to establish an alibi with absolute certainty to exclude their presence at the scene of the occurrence, failing which the presumption under Section 113-B of the Evidence Act prevails.

JUDGMENT

1. This appeal has been filed against the judgment dated 27.04.2000 passed by 14th Additional Sessions Judge Indore in Session Trial No.124/1998 whereby the accused/appellants have been convicted and sentence under Section 304-B of I.P.C. and sentenced to undergo 7 years R.I. and fine of Rs.1,000/- in default to suffer rigorous imprisonment for 6 months.

(2). The case of the prosecution is that Parveen Bee daughter of the complainant Jalal was married to Nosad on 01.06.1994. But her father-in-law Dule Kha, mother-in-law Kallo Bai @ Naseem Bee and husband Nosad were not happy with the dowry. Just after the marriage Parveen bee was tortured by her father-in-law Dule Kha, mother-in-law Kallu@ Naseem Bee and husband Nosad for bringing television, fridge, scooter, almirah from her parental house and they used to beat her. After one month of the marriage Parveen Bee came to her parental house, she tells it to her parents and stayed there for about one and half years. Thereafter on the pursuance of relatives they sent to their daughter to her matrimonial house. On 21.10.1997 Jalal Kha father of the Parveen went to her matrimonial house to meet her. After reaching their he saw that accused persons were beating Parveen, they asked him that why he has come here and threatened to face dire consequences. They forced him to leave the place. Then Jalal Kha returned his home. In the evening Wahid Khan nephew of Jaleel Khan informed him regarding the admission of Parveen Bee by her in laws in M.Y. Hospital, Indore. When Jaleel Kha reached the hospital, he found his daughter Parveen laying dead in the hospital due to burn injuries.

(3). The written communication received from M.Y. Hospital Indore regarding the unnatural death of Parveen Bee lead police to register merge No.0/399/1997 under Section 174 of Cr.P.C. at Police Station Sanyogitaganj Indore. After performing inquest, the dead body of Parveen Bee was sent for postmortem examination. The merge diary was transferred to police station Kudel for further enquiry, under which jurisdiction offence was committed. During enquiry, police recorded the statement of witnesses, prepared the spot map and seized incriminating articles from the place of occurrence. On the basis of merge enquiry FIR was registered under Section 304-B of I.P.C. Investigation of the case was assigned to DSP Headquarter S.S. Bais, he recorded the statement of witnesses, arrested the accused persons. After completion of investigation, charge-sheet was filed before the Court of Judicial Magistrate First Class, Indore who committed the case to session Judge,Indore and ultimately it was transferred to 14th Additional Sessions Judge for trial.

(4). Accused were charged under Section 304-B of I.P.C. They pleaded not guilt and claimed for trial. They took a plea that they are innocent and falsely implicated in the present crime. In defence they have examined four witnesses Arun Kumar (DW-1), Jankilal (DW-2), Molana Hafiz (DW-3) and Adbul Aziz (PW-4).

(5). In order to substantiate its case, the prosecution examined 13 witnesses. All accused in their statement recorded under Section 313 of Cr.P.C. denied the case of prosecution.

(6). After assessment of evidence on record and hearing learned senior counsel for the parties, the trial court disposed of the case by the impugned judgment and found the accused/ appellants guilt under Section 304 -B of I.P.C. and sentenced as above. Aggrieved by the aforesaid judgment, the appellant has filed instant appeal.

(7). Learned senior counsel for the appellant has submitted that there was no evidence that soon before the death of the deceased any cruelty or misbehavior was done with her by the appellants. More over, the appellants were also not present in the house at the relevant time. There is also no evidence that prior to the death of deceased any demand of dowry was made by the appellants. It is also submitted that in Mohammedan community there is no custom or practice for demandi