This appeal, by special leave, has been preferred against the judgmentand order dated 23.2.2005 of Bombay High Court (Aurangabad Bench), by whichthe appeal preferred by the appellants was dismissed and their convictionunder Section 304-B read with Section 34 IPC and sentence of 7 years RIimposed thereunder by the learned Sessions Judge, Aurangabad, was affirmed.The appellant no. 2, Kadubai is the motherof the appellant no. 1 and both the appellants were residing in the samehouse in village Palshi.According to the case of prosecution, a sum of Rs.5000 and some gold ornaments had been given at the time of marriage ofBhimabai.For about six months Bhimabai was treated well but thereafter theaccused started asking her to bring Rs. 1,000-1,200 from her parents tomeet the household expenses and also for purchasing manure.WheneverBhimabai went to her parental home, she used to tell her parents that herhusband and mother-in-law (accused appellants) were harassing her and usedto occasionally beat her.Her father PW.1 Tukaram along with some of hisrelatives went to the house of the accused and tried to persuade them notto ill-treat Bhimabai.Thereafter, the accused treated Bhimabai properlybut after about four months they again started harassing her.A few daysbefore Nag Panchami festival Bhimabai came to her parental home andcomplained that the accused were not giving her proper food, clothings andeven footwear.She also told her parents that her husband had asked her tobring an amount of Rs.1,000-1,200 for the purpose of household expenses andmanure.The case of the prosecution futher is that in the evening of15.9.1991 a person came from village Palshi on a motorcycle and informedPW.1 Tukaram that Bhimabai was unwell.PW.1 then immediately went to thehouse of the accused along with some of his relatives.There he saw thatBhimabai was lying dead and froth was coming out of her mouth whichindicated that she had consumed some poisonous substance.The Police Patilof the village PW.3 Sandu Mohanrao Patil lodged an accidental death reportat 9.00 p.m. on 15.9.1991 at the police station.On the basis of the saidaccidental death report, PW.6 Sandeepan Kamble, Police Sub-Inspector,visited the house of the accused, held inquest on the dead body ofBhimabai, and thereafter sent the same for post-mortem examination.The last time Bhimabai visited her parentalhome was on the occasion of the festival of Nag Panchami and she hadcomplained that she was being ill-treated and was sometimes given beatingfor bringing money from her parents.She has specifically stated that for aperiod of six months after the marriage, Bhimabai was treated well andthereafter she had started complaining about the harassment being caused toher.In his cross-examination, he admitted that he did not makedetailed enquiries as to what was the cause of death and where the incidenthad taken place.He has further deposed that Bhimabai had come to his houseabout six months earlier and had said all was not well between her and herhusband, but she had not given any specific details.The main witnesses regarding the alleged demand of money and alsoharassment and beating to Bhimabai are her father and mother, viz., PW.1Tukaram and PW.5 Sumanbai.In his examination-in-chief PW.1 has said thatwhenever his daughter came to her parental home, she used to complain thatshe was being subjected to harassment by the appellants on account of some"domestic reasons" and further that her husband (appellant no.1) had toldher that while coming back from her parental home she should bring Rs.1,000-1,200 for expenses and for manure as he had no sufficient money.JUDGMENTG.P. MATHUR, J. :PW.1Tukaram lodged the FIR of the incident at 7.00 p.m. on 16.9.1991 at P.S.Chikalthana, on the basis of which Case Crime No. 144 of 1991 wasregistered against the appellants under Sections 498-A, 306 and 304-B IPC.After completion of investigation, charge sheet was submitted againstthe appellants and in due course, the case was committed to the Court ofSessions.The learned Sessions Judge framed charges under Sections 498-A,304-B read with Section 34 IPC and Section 306 read with Section 34 IPCagainst both the appellants.The appellants pleaded not guilty and claimedto be tried.The prosecution in order to establish its case examined sixwintesses and filed some documentary evidence.The post-mortem examination on the body of deceased Bhimabai wasconducted by a team of two doctors of Department of Forensic Medicine andToxicology, Medical College, Aurangabad, namely, Dr. S.M. Jawale and Dr.The doctors did not find any sign of external orinternal injury on the body of the deceased and in their opinion, the causeof death was insecticide poisoning.The viscera was preserved for chemicalanalysis.The report of the post-mortem examination was admitted by thedefence.The specific case of the prosecution is that Bhimabai ended her life byconsuming poison because of harassment caused to her by the appellants foror in connection with demand of dowry.It is, therefore, necessary tobriefly examine the evidence of the prosecution witnesses.PW. 1 Tukaram,father of the deceased, has given details of the prosecution version of theincident in his statement in Court.He has deposed that in the marriage hehad given Rs. 20,000 as dowry.Initially, Bhimabai was treated well forabout six months, but thereafter the appellants started ill-treating her.Whenever Bhimabai came to her parental home, she used to complain that forsome domestic reasons she was being harassed.When she had visited herparental home on the last occasion, she had said that her husband Appasahebhad asked her to bring Rs. 1,000-1,200 for domestic expenses and forpurchasing manure as he had no sufficient money.Bhimabai had complained tohim that she was not being given proper food, clothings and even footwearand occasionally the appellant no. 1 used to beat her.The last time shevisited her parental home was during the festival of Nag Panchami and atthat time she looked depressed.The witness has further deposed that on thedate of incident, a man came from village Palshi on motorcycle and informedthat he should immediately go there as Bhimabai was not well.He then wentto village Palshi along with other persons of his family where he reachedafter sun set.He saw that Bhimabai was lying dead and froth was coming outof her mouth which was smelling of Thimet (insecticide).He has also deposed that it was after about 1-1/2 years ofmarriage that Bhimabai first complained to him about the harassment beingcaused to her.There used to be some bickering in the marital life ofBhimabai and her husband on trifling matters.He has admitted that it wasappellant no. 1 who had sent a person on motorcycle who had giveninformation regarding Bhimabai being unwell and that both the appellantswere present at the time of her funeral.PW.2 Babaji is real brother offather-in-law of PW.1 Tukaram.He has deposed that on an earlier occasionhe had gone along with PW.1 and some others to the house of appellant no.1to persuade him not to harass Bhimabai and to treat her well.In his cross-examination he has admitted that when he had gone to village Palshi to talkwith the appellants regarding the ill-treatment being meted out toBhimabai, there was no talk regarding monetary giving and taking.He alsoadmitted that he had not gone to attend that funeral of Bhimabai.PW.5Sumanbai is the mother of the deceased Bhimabai.She has stated in herexamination-in-chief that Bhimabai was being ill-treated by the appellantsand the reason for ill-treatment was that they were demanding money to bebrought from her parental home.In her cross-examination, PW.5 Sumanbai has stated that after newsabout the condition of Bhimabai was given by a man from village Palshi, shealong with her husband and some other relations went there and noticed thatBhimabai was lying dead in the house and froth was coming out of her mouth.She has further stated that she did not make any enquiry as to how Bhimabaihad died.In her statement under Section 161 Cr.P.C. which was recordedvery next day of the incident i.e. on 16.9.1991 she did not state thatcause of ill-treatment was "a demand for money and a consequent beating".When confronted with her aforesaid statement under Section 161 Cr.P.C., shereplied that she did not know why there was no mention in the saidstatement that the cause for ill-treatment was "a demand for money and aconsequent beating".She further stated that it will be correct to say thather daughter was receiving ill-treatment as a result of "domestice cause".The learned trial Judge then sought clarification from the witnessses byputting the following question."Que:- What do you mean by "domestic cause"?Ans.:- What I meant was that there was demand for money fordefraying expenses of manure etc. and that was the cause."In the very next paragraph she stated as under :-"It is not true to suggest that in my statement before the police I never said that ill-treatment was as a result of demand for money from us and its fulfillment.I cannot assign any reason why police did not write about it in my statement."3 Sandu, Police Patil of village Palshi has deposed that at about4.20 p.m. on 15.9.1991, Narayan who is uncle of appellant no.1, Appasaheb,informed him that the wife of Appasaheb had expired.He then went to thehouse of the appellant and saw Bhimabai lying with froth coming out of hermouth.Thereafter, he gave a report about the incident in writing at thepolice station.PW.5Sumanbai has deposed that Bhimabai was receiving ill-treatment as a resultof "domestic cause" and to a specific question put by the Court as to whatshe meant by "domestic cause" she gave a reply that there was a demand formoney for defraying expenses of manure etc. It is important to note that inher statement under Section 161 Cr.P.C. which was recorded on the very nextday of the death of Bhimabai, this witness did not state that the cause forill-treatment was "a demand for money and a consequent beating".Theevidence on record does not indicate that the police had any reason tofavour the accused and deliberately omitted to mention about the allegeddemand of money while recording the statement of PW.5 Sumanbai underSection 161 Cr.P.C. The evidence shows that the accused come from veryhumble background and they could not have exerted any kind of influence,financial or otherwise, upon the police so as to manage a statementfavourable to them when in the course of investigation the statements ofwitnesses were being recorded under Section 161 Cr.P.C. Accepting thestatements of father and mother on their face value that utmost which canbe held is that the appellant no.1 had asked his wife Bhimabai to bringmoney for meeting domestic expenses and for purchasing manure.Asalready stated, the appellants were also charged under Sections 498-A and306 read with Section 34 IPC but were acquitted of the said charges by thelearned Sessions Judge, which order has attained finality for the reasonthat the State did not prefer appeal agains the same.The appeal before theHigh Court and also in this Court has been preferred by the appellantschallenging their coviction under section 304-B read with section 34 IPC.It has been held in State of Andhra Pradesh v. Thadi Narayan, AIR (1962) SC240 that Section 423(1)(b)(i) of Code of Criminal Procedure, 1898 (whichcorresponds to Section 386(b)(i) of Code of Criminal Procedure, 1973) isclearly confined to cases of appeals preferred against orders of convictionand sentence, the powers conferred by this clause cannot be exercised forthe purpose of reversing an order of acquittal passed in favour of a partyin respect of an offence charged, in dealing with an appeal preferred byhim against the order of conviction in respect of another offence chargedand found proved.

Cited provisions: Section 304B in The Indian Penal Code; Section 34 in The Indian Penal Code; Section 306 in The Indian Penal Code; Section 498A in The Indian Penal Code