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KURIAN, J.:

The appellants faced trial under Section 498A read with Section 304B read with Section 34 of the Indian Penal Code (45 of 1860) (hereinafter referred to as 'IPC'). The trial court acquitted them under Section 304B of IPC but convicted them under Section 498A of IPC. The State took up the matter in appeal before the High Court against the non-conviction under Section 304B of IPC. The High Court allowed the appeal and convicted them under Section 304B of IPC also. During the pendency of the appeal, appellant no.1-father- in-law of the deceased and appellant no.2-mother-in-law of the deceased expired. Therefore, the appeals survive only in respect of appellant no. 2- husband of the deceased, appellant no.3-elder brother of the deceased and appellant no.4-younger brother of the deceased.

Heard learned Counsel appearing for both the parties. According to learned Counsel appearing for the appellants, there is absolutely no justification in convicting the appellants under Section 304B of IPC and Section 498A of IPC. However, learned counsel appearing for the respondent-State contends that in view of the overwhelming evidence which has been minutely discussed by the High Court, the conviction under both Section 304B of IPC and Section 498A of IPC are to be sustained. In the nature of the view we propose to take in this case, particularly since the conviction by the High Court is only on the basis of Exhibit-PM- dying declaration, we do not think it necessary to go elaborately into the evidence. It will be sufficient to refer to the evidence of PW-16-ASI Jagdeep Singh, who recorded the dying declaration and the medical evidence. It is seen that the request for recording the statement was first made before the First Divisional Magistrate, Hisar, who in turn directed the Executive Magistrate, Hisar to record the same. The Executive Magistrate, viz., Tehsildar, Hisar took along with him PW-16-ASI Jagdeep Singh. PW-16 states thus in his evidence:

The other major issue is on applicability of Section 304B of IPC. In order to attract Section 304B of IPC, one of the essential ingredients is that death of the married woman should be caused by burns or bodily injury or that she should have died otherwise than under normal circumstances. In the instant case, it has clearly come out in evidence that the death is not caused by the burns: it is caused by septicemia on account of improper management of wounds. The parts of the body affected by the burns would clearly show that the burns are not caused on account of somebody pouring kerosene on her body and setting her on fire. As can be seen from the medical evidence and the postmortem report, the injuries are on front side of the body from face up to the umbilicus. Her long hair was not burnt at all. The approach of the trial court seems to be quite proper and reasonable, and which, in our view, could not have been better explained. To quote from paragraph-17:

Now, regarding the sentence, it is brought to our notice that appellant nos. 2 and 3 have served imprisonment for around two years. Since the appellants are acquitted under Section 304B of IPC and the conviction is only under Section 498A of IPC and since accused/appellant nos. 1 and 5 are no more, and having regard to the facts and circumstances of the case, we are of the view that the sentence of accused/appellant nos. 2 and 3 is to be limited to the period already undergone.