Satyendra Kumar Singh, J.

1. Appellant has preferred this appeal under Section 374(2) of the Code of Criminal Procedure, 1973(2 of 1974) [in short Cr.P.C.] being aggrieved by the judgment dated 30.03.2017 passed by the Court of Special Judge (SC/ST Act) & Additional Sessions Judge, Ratlam in S.T. No. 33/2012, whereby the appellant has been convicted for the offence punishable under Section 304-B of Indian Penal Code, 1860 (in short 'IPC') and sentenced him to life imprisonment with fine of Rs. 1500/- with default stipulation.

2. The prosecution case in brief is as follows:

(i) Appellant Rajesh @ Nanna and deceased Reena were husband and wife and their marriage was solemnized about 5 years prior to the incident. After about one and a half years of their marriage, appellant alongwith co-accused persons i.e. appellant's father Amratlal, mother Kalabai and sister Pinky started dowry demand cruelty with her. They were demanding an amount of Rs. 2 lakhs for starting the business of the appellant and when their demands were not fulfilled, they harassed her mentally and physically about which she had made complaint against them, on the basis of which FIR dated 26.08.2011 (Ex. P-16) for the offences punishable under Section 294, 323, 498- A and 506 of IPC was registered against them at Police Station- Mahila Thana, Ratlam.

(ii) In the aforesaid matter, after filing of the chargesheet, during trial of the case appellant entered into a compromise with the deceased and about 10 days prior to the incident of the present case, he took the deceased to his house, and thereafter, again started harassing her mentally and physically. On the date of incident i.e. 12.10.2011 at about 09:10 hours, appellant started shifting his luggage to his another house and when deceased told him to take her also with him, he refused and told her that he will bring another woman. Thereafter, a quarrel took place between them on which appellant poured kerosene oil on her body and set her on fire. Appellant's mother co-accused Kalabai threw water on her and took her to District Hospital, Ratlam, where at about 11.00 hours, Dr. Gopal Yadav finding burn injuries on all over her body and also finding her general condition poor, prepared Pre MLC Report (Ex. P-14), admitted her in the hospital for treatment and vide letter (Ex. P-15) informed P.S. Industrial Area, Distt. Ratlam.

(iii) SI Rajendra Prasad Shrivas after receiving the information about the incident, reached the burn ward of the District Hospital, Ratlam and at about 12:30 hours, on the basis of deceased's oral complaint, recorded dehatinalsi report (Ex. P/23) and informed to the Executive Magistrate for recording her dying declaration. Executive Magistrate/Additional Tehsildar Vijay Saxena reached the hospital and after getting the fitness certificate from the concerned duty doctor, at about 13:00 hours, recorded her dying declaration (Ex. P-1) and vide letter (Ex. P-2) sent the same to the Chief Judicial Magistrate, Ratlam. On the same day at about 18.05 hours, H.C. Madanlal, on the basis of dehatinalsi report (Ex. P-23), registered the FIR (Ex. P-22) against the appellant and co-accused persons his father Amratlal, mother Kalabai and sister Pinky for the offences punishable under section 307 r/w 34 and 498-A of IPC at P.S. Industrial Area, Ratlam.

(iv) During investigation SI Rajendra Prasad went to the place of occurrence, prepared spot map (Ex. P-11), seized a blue colored plastic can containing about 100 gm of kerosene, a match box, a burnt match stick and hairs found on the spot as per seizure memo (Ex. P-4) and deceased's burnt clothes found near the spot as per seizure memo (Ex. P-5). He also collected and seized deceased's hair as per seizure memo (Ex. P-6). On 22.10.2011 at about 02.45 hours, deceased died in the hospital during treatment. Dr. Shailendra Mathur vide letter (Ex. P-8) informed the police about the death of the deceased, on the basis of which H.C. Madanlal at about 07.05 hours, registered the merg intimation report (Ex. P-21A). SI Rajendra Prasad went to the hospital, called the witnesses through Safina Form (Ex. P-9). Additional Tehsildar Sanjay Waghmare prepared naksha panchayatnama (Ex. P-10) of the body of the deceased. SI Rajendra Prasad vide letter (Ex. P-25) sent the body of the deceased for postmortem examination.

(v). Dr. Aman Ohry conducted the postmortem examination of the deceased's body and finding all organs of her body congested, prepared postmortem report (Ex. P-13) and opined that the deceased death was caused due to cardio respiratory failure as a result of septic shock by burn within 24 hours from the time of postmortem examination and the burn injuries found on her body were anti-mortem in nature. I/O C.S.P. Rajendra Singh Vardhman arrested the appellant as per arrest memo (Ex. P-19) and vide letter (Ex. P-20) sent all the seized articles to FSL, Sagar, obtained FSL report (Ex-P-21). After completion of investigation filed the chargesheet against the appellant as well as co-accused persons namely; Amratlal, Kalabai and Pinky before the Court of Judicial Magistrate First Class, Ratlam, who committed the case to the Court of Additional Sessions Judge, Ratlam.

3. Learned trial Court considering the material prima-facie available on record framed the charges u/S 498-A, 302 and 304(B) of IPC against the appellant and co-accused persons namely; Amratlal, Kalabai and Pinky, who abjured their guilt and prayed for trial.

4. Learned trial Court after appreciating the oral as well as documentary evidence available on record, acquitted the co-accused persons from all the charges, while convicted the appellant for the offence punishable u/S 304(B) of IPC and sentenced him as stated in para 1 of this judgment. Being aggrieved by the said judgment of conviction and order of sentence, appellant has preferred this appeal for setting aside the impugned judgment and discharging him from the aforesaid charges framed against him.

5. Learned counsel for the appellant submits that the learned trial Court has committed legal error while appreciating the evidence available on record. Admittedly, appellant and deceased's marriage was solemnized in a Samuhik Vivah Sammelan organized under Chief Minister's Scheme and at that time there was no demand of dowry from either side. Omnibus allegations about the dowry demand cruelty have been alleged against the appellant. The appellant and other co-accused persons have been acquitted in the criminal case registered against them in this regard. Statements of prosecution witnesses, who are closed relatives of the deceased are inconsistent and co-accused persons have already been acquitted from all the charges, therefore, on the same set of evidence, conviction of the appellant is not sustainable. Deceased herself poured kerosene on her body and set herself on fire. Thus, impugned judgment of conviction and order of sentence deserves to be set aside and appellant may be acquitted from the charge framed against him.

Learned counsel for the appellant also submits that as the incident took place due to sudden fight without any premeditation and the act of the appellant was an outcome of the heat of passion upon such sudden quarrel, therefore, the appellant's case squarely falls within Exception 4 to section 300 of IPC. In support of his above contention, he has placed reliance on the judgment rendered by the Apex Court in the cases of K. Ravi Kumar Vs State of Karnataka (Cr. Appeal No. 2494 of 2014).

6. Per contra, learned counsel for the respondent/State while supporting the impugned judgment of conviction and order of sentence submits that judgment so passed by the trial Court is based on proper appreciation of evidence available on record. Therefore, confirming the impugned judgment of conviction and order of sentence, the appeal filed by the appellant deserves to be dismissed.

7. Heard learned counsel for both the parties at length and perused the record.

8. Prosecution has examined in all 18 prosecution witnesses including deceased's sister Krishnabai (PW-5), brother Suresh (PW-7) and sister-in-law Chandrabai (PW-18), who reached the hospital just after the incident. Other material witnesses are Executive Magistrate/Tehsildar Vijay Saxena (PW-1), who recorded her dying declaration. Dr. Shailendra Mathur (PW-4), who first time medically examined the deceased and admitted her in the hospital, Dr. Abhay Ohri (PW-10), who conducted the postmortem examination of the body of the deceased, S.I. Rajendra Prasad Shrivas (PW-17), who recorded the dehatinalsi report and conducted merg inquiry. Head Constable Madanlal (PW-16), who lodged the FIR (EX.P-22) as well as merg intimation report (Ex. P-/21) and C.S.P. Rajendra Singh Vardhman (PW-15), who investigated the matter and filed the charge sheet.

9. Deceased's elder sister Krishnabai (PW-5) deposed that about 5 years ago deceased Reena was married to the appellant. Her brother Suresh (PW-7) also stated so and during cross-examination of Krishnabai, co-accused persons themselves suggested her that deceased's marriage was solemnized in the year 2007, therefore, this fact seems undisputed that deceased was married to the appellant about 4-5 years prior to the date of incident.

10. Admittedly, incident took place on 12.10.2011 and deceased's mother-in-law Kalabai herself took the deceased, in burnt condition, to the District Hospital, Ratlam, where on 22.10.2011 at about 02:45 AM, she died during treatment due to cardio respiratory failure because of septic shock by burn injuries and her death was unnatural. Therefore, this fact is established that deceased died unnatural death within seven years of her marriage.

11. So for as the issue whether appellant caused dowry death of the deceased by pouring kerosene oil on her body and setting her on fire is concerned, S.I. Rajendra Prasad Shrivas (PW-7) deposed that at the relevant point of time, when incident took place, he was present at the Police Chowki Haat and after hearing the noise of the quarrel, when he reached the place of incident, he was informed that deceased's mother-in-law had taken the deceased to the hospital. He then reached to the burn ward of District Hospital, Ratlam, where after about half an hour of her treatment he met with her and recorded dehatinalsi report (Ex/.P-23) on the basis her oral complaint.

12. Executive Magistrate/Tehsildar Vijay Saxena (PW-1) deposed that on the date of incident after receiving a Tahrir (Letter) from the police to record the statement of the deceased, he went to the hospital and after getting fitness certificate from the concerned duty doctor, at about 13.00 hours recorded the statement i.e. dying declaration (Ex. P-1) of the deceased, wherein she had stated that on the date of incident at about 09.00 hours when her husband and her mother-in-law both were present in the house, a quarrel took place between them as appellant was not ready to keep her with him and was saying that he will bring another woman. Appellant thereafter, poured kerosene oil on her body and set her on fire.

13. Appellant has challenged the reliability of dehatinalsi report (Ex/.P-23) and dying declaration (Ex. P-1) on the ground that at the time of recording of dehatinalsi report (Ex. P-23) as well as dying declaration (Ex. P-1), the deceased was not capable to get her statement recorded. S.I. Rajendra Prasad Shrivas (PW-7) admitted in his cross-examination that he recorded the dehatinalsi report (Ex. P-23) without making inquiry from the duty doctor about the capability of the deceased to get her statement recorded, but Executive Magistrate Vijay Saxena (PW-1) deposed that he after getting the fitness certificate about the capability of the deceased from the concerned duty doctor, recorded her dying declaration (Ex. P-1). Perusal of the above dying declaration (Ex. P-1) reveals that the duty doctor had certified, at the beginning of the statement, as " Pt is able to give her statement", and at the end of the statement as "Throughout the duration of statement pt. was conscious & oriented".

14. Although, the doctor who had given the said fitness certificate about the capability of the deceased has not been examined, but admittedly deceased died after about 10 days of the incident and all the prosecution witnesses namely Krishnabai (PW-5), Jitendra (PW-6), Suresh (PW-7) and Chandrabai (PW-18), who reached the hospital after the incident and had met with the deceased, deposed that the deceased was able to speak at that time and had stated almost similar statements as that of the dehatinalsi report (Ex. P-23) and the dying declaration (Ex. P-1).

15. Executive Magistrate/Tehsildar Vijay Saxena (PW-1) is an independent witness and responsible officer and the dying declaration (Ex. P-1) recorded by him finds support from the deceased's oral dying declarations made before Krishnabai (PW-5), Jitendra (PW-6), Suresh (PW-7) and Chandrabai (PW-18) and also from the dehatinalsi report (Ex. P-23), lodged just after the incident. Nothing material has been extracted during his cross-examination, which makes his statement doubtful, therefore, there is no reason to disbelieve the same.

16. From the unchallenged testimony of SI Ganga Chouhan (PW-13), this fact also seems not disputed that prior to the incident, deceased had lodged an FIR dated 26.08.2011 (Ex. P-16) against the appellant as well as his father and mother for the offences punishable under Section 498-A, 294, 323 and 506 of IPC at Police Station Mahila Thana, Ratlam. From the statements of deceased's sister Krishnabai (PW-5), brother Suresh (PW-7) and sister-in-law Chandrabai (PW-18), it is established that about ten days prior to the incident, appellant entered into a compromise with the deceased and took her to his house from the Court.

17. During the course of arguments it has been argued on behalf of the appellant that criminal case registered in the aforesaid matter has been disposed of and the appellant as well as his other family members have been acquitted from the charges alleged therein, but neither the copy of the said judgement has been produced nor it has been brought on record that on what ground they were acquitted in the aforesaid matter. Therefore, although the allegations alleged in the aforesaid matter may not be found proved beyond reasonable doubt, but this fact cannot be denied that at the time of incident a dispute between deceased and appellant with regard to the dowry demand cruelty was pending in the court and appellant's relations with the deceased were strained.

18. Deceased was burnt and died within seven years of her marriage while living with the appellant in his house and neither appellant nor his mother Kalabai, who took the deceased from the place of incident to the hospital after the incident, have not stated anything in their statement recorded u/S 313 of Cr.PC as to why and how deceased was burnt. They had taken a defence that deceased herself poured kerosene oil on her body and set herself on fire, but there is nothing on record, which indicates that she herself poured kerosene oil on her body and committed suicide.

19. In this regard statements of SI Rajendra Prasad (PW-17), who prepared the spot map (Ex. P-11) and seized a blue colored plastic can having about 100 gm of kerosene alongwith other articles as per seizure memo (Ex. P-4) is relevant. He in para 2 of his examination in chief specifically deposed that after the incident when he went to the place of incident he had found a blue colored plastic can covered with lid containing about 100 gm of kerosene oil. As it was neither probable nor possible that the deceased herself could cover the above can with lid after pouring kerosene on her body and setting herself on fire, therefore defense taken by the appellant that she committed suicide is not probable at all.

20. In this regard statements of Dr Abhay Ohri (P.W.-10), Dr. Gopal Yadav (PW-11) and Tehsildar Sanjay Waghmare (PW-12) are also relevant who deposed that while postmortem examination, medical examination and inquest proceeding they had found burn injuries on all over the body of the deceased as per postmortem report (Ex. P-13), Pre MLC Report (Ex. P-14) and Naksha panchayatnama (Ex. P-10) respectively, which was normally not possible in suicidal cases. Hence circumstances produced on record specifically negates the defense taken by the appellant and there is no reason to disbelieve or doubt the prosecution case.

21. As it has already been found established that prior to the incident of this case a dispute between the deceased and appellant with-regard to dowry demand cruelty was pending in the court and about 10 days prior to the date of the incident of this case, appellant himself took the deceased to his house from the court. Deceased in her dehatinalsi report (Ex. P-23) as well as in her dying declaration (Ex. P-1) specifically stated that on the date of incident appellant was shifting his luggage in his another house saying he will not keep the deceased with him and will bring other woman, which itself shows that his dowry demand cruelty with the deceased was still going on at the time of incident.

22. In view of the above, it can also not be said that the incident took place due to sudden fight without any premeditation and the act of the appellant was an outcome of the heat of passion upon such sudden quarrel. Facts of the case K. Ravi Kumar Vs State of Karnataka (Cr. Appeal No. 2494 of 2014), cited by the appellant is entirely different, wherein after about 9 years of happy marriage life, all of sudden a quarrel had taken place between the accused and deceased wife only because deceased wife was not agreed to leave immediately to see her father-in law, hence the same is of no assistance to the appellant.

23. Thus, in view of the aforesaid discussion, there is no reason to disbelieve the prosecution story. This Court does not find any illegality, perversity and arbitrariness in the finding recorded by the learned Trial Court while convicting the appellant for the offence punishable u/S 304-B of IPC, hence the impugned judgement of conviction and order of sentence passed by learned Trial Court is liable to be affirmed and is hereby affirmed.

24. Accordingly, this appeal filed on behalf of the appellant is hereby dismissed.

25. The Registry is directed to send back the Trial Court record forthwith alongwith the copy of this judgment.