THE HON’BLE SRI JUSTICE P.DURGA PRASAD CRIMINAL APPEAL NO.1027 OF 2004 ORDER: This appeal is directed against the conviction and sentence passed by the II Additional Sessions Judge, Warangal in S.C.No.205 of 2003 on 07.06.2004. The appellants herein are accused Nos.1 to 3 and they along with accused No.4 were prosecuted for the offences under Section 498-A, 302, 109 read with 34 IPC and Sections 3 and 4 of Dowry Prohibition Act and alternatively under Section 304-B IPC. The brief facts of the case of the prosecution are that accused No1. is the husband of the deceased Peddi Anitha and accused No.2 is the father-in-law and accused No.3 is the mother-in-law and accused No.4 is the brother-in-law. The marriage of the deceased with accused No.1 was performed on 19.04.2000. At the time of settlement of marriage, P.W.1, father of the deceased agreed to give Rs.1,50,000/- as dowry to accused No.1 on their demand and paid Rs.85,000/- at time of marriage and also presented ‘8’ tulas of gold and other articles and he has to pay balance amount of Rs.25,000/- after the marriage. The deceased lived with accused No.1 happily for 6 months. But P.W.1 was unable to pay the said amount of Rs.25,000/- in time to accused No.1. Thereafter, accused Nos.1 to 4 started harassing the deceased demanding the remaining dowry amount. As the deceased was unable to bear the torture, informed the same to her parents. In the month of November, 2001 a panchayat was held before the elders, P.Ws.2, 3, 4, 5 and 6 and all the caste elders found fault with accused Nos.1 to 4 and warned them not to harass the deceased and also advised the P.W.1 to pay the remaining dowry amount as soon as possible and sent the deceased to her in-laws house along with accused No.1. P.W.1 being financial unsound, unable to pay the due dowry amount with in the time, but in the meanwhile the deceased gave birth to a male child. Accused Nos.1 to 4 again started harassing and torturing the deceased and in the month of May, 2002 the deceased went to her parents house and stayed there for want of dowry. On 19.07.2002, accused Nos.1 and 3 went to the house of P.W.1 and brought back the deceased to their house Devaruppula village and started quarrelling with the deceased and the same was witnessed by neighbours P.Ws.7 and 8. On 23.07.2002 at 16.00 hours accused Nos.1 to 4 picked up a quarrel with the deceased and accused No.1 beat the deceased with an iron dumble on her head and killed her. Later all the accused left the house by closing doors of the house. Later P.Ws.9 and 12 gone to the house of accused No.1 on other matters, pushed the doors found the deceased lying dead in a pool of blood with head injury in the middle of the house and they informed the same to P.W.1. On the said information, P.W.1 gone to the house of accused and found the dead body of the deceased and went to the police Station and lodged a complaint on 24.07.2002 at 13.30 hours. P.W.13 head constable has registered the case in Crime No. 34 of 2002 under Sections 498-A, 302, 109 read with 34 IPC and Sections 3 and 4 of Dowry Prohibition Act. On the requisition of P.W.13 to the M.R.O, Devaruppula for conducting inquest over the dead body of the deceased, he conducted the inquest in the presence of P.W.11 and another. P.W.13 visited the scene of offence and conducted the scene of offence Panchanama in the presence of P.W.10 and another. P.W.15 Sub-Inspector of police, who took up investigation arrested accused Nos.1 to 4 on 04.08.2002 and interrogated the accused and at the instance of accused Nos.1 to 4 proceeded to Devaruppula and seized iron dumble in the presence of P.W.11 and another. The Doctor, who conducted autopsy over the dead body of the deceased found the deceased died due to head injury. Hence, the charge sheet is filed against the accused for the offences under Sections 498-A, 302, 109 read with 34 IPC and Sections 3 and 4 of Dowry Prohibition Act and alternatively under Section 304-B IPC. The learned Sessions Judge has framed the charges under Sections 498-A, 302 read with 34, 302 read with 109 IPC and Sections 3 and 4 of Dowry Prohibition Act, alternatively Section 304-B IPC against all the accused. All the accused pleaded not guilty for the said charges. In order to establish the said charges, the prosecution examined P.Ws.1 to 17 and got marked Exs.P.1 to P.32 and M.O.1. No oral documentary evidence was produced on behalf of the accused, but Exs.D.1 to D.9 were marked. The learned Sessions Judge by taking into consideration of the said oral and documentary evidence found accused Nos. 1 to 3 guilty for the offence under Section 304-B IPC and they were acquitted for the other charges. Accused No.4 was acquitted for all the charges. Accused Nos.1 to 3 were convicted and sentenced to undergo rigorous imprisonment for a period of 7 years for the offence under Section 304-B IPC. Aggrieved by the said conviction and sentence, the present appeal is filed by accused Nos.1 to 3. Now, the point that arises for consideration is: Whether the prosecution could able to establish the charge under Section 304-B IPC against accused Nos. 1 to 3 beyond reasonable doubt? P O I N T: Learned Senior Counsel Sri Padmanabha Reddy appearing for the appellants has pleaded that there is no proof of demand for additional dowry or harassment in connection with thereof as required under Section 304-B IPC. He further pleaded that in all the mediations said to have been held by the elders of Devaruppula and Pasaramadla village there is no allegation of accused demanding for additionally dowry and harassing the deceased in connection with said dowry. As such the accused cannot be convicted for the offence under Section 304-B IPC, more particularly when they were acquitted for the offence under Section 498-A IPC. On behalf of the Public Prosecutor, it is argued that the evidence of P.W.1, father of the deceased and the mediators P.Ws.2, 3, 4, and 5 clearly establishes that the accused harassed the deceased and in that connection a panchayat was held and as per the advice of the panchayat elders the deceased was sent to the house of the accused and within 3 or 4 days of the said panchayat, the deceased found dead in the house of the accused, as such the prosecution is entitled to draw the presumption under Section 113-B of Evidence Act and as such they could able to establish the offence under Section 304-B IPC. The appellants herein were prosecuted for the offences under Sections 498-A, 302, 109 read with 34 IPC and Sections 3 and 4 of Dowry prohibition Act and alternatively under Section 304-B IPC on the allegation that the accused harassed the deceased as her father could not pay the balance of dowry agreed at the time of marriage and as per the advice of the elders, the deceased was sent to the house of the accused and within 4 days the deceased was found dead in the house of the accused and accused No.1 hit the deceased on her head with a iron dumble on 23.07.2002 at 16.00 hours in a quarrel that took place between the accused and the deceased. The learned Sessions Judge has found that the prosecution has failed to establish the charge under Section 302 IPC and observed that as the offences under Sections 498-A IPC and Sections 3 and 4 of Dowry Prohibition Act are offences of lesser gravity than under Section 304-B IPC and thereby convicted the accused Nos.1 to 3 for the offence under Section 304-B IPC. In order to establish the offence under Section 304-B IPC that the prosecution has to prove that (1) the death of the woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and (2) they have to establish that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, demand for dowry. In the present case, the deceased died due to head injury as certified by doctor P.W.16 and the marriage took place on 19.04.2000 and she died on 23.07.2002. Thus, the death of the deceased is unnatural death and she died within 7 years of her marriage. Thus, the prosecution could able to establish the first requirement under Section 304-B IPC. The next requirement to convict the accused under Section 304-B IPC is that soon before her death the accused should have harassed her and treated her with cruelty in connection with demand for dowry. Father of the deceased was examined as P.W.1. According to him he has agreed to give Rs.1,50,000/- as dowry as demanded by the accused at the time of the marriage and paid only Rs.85,000/-, even though the balance is Rs.65,000/-, he has stated that balance amount is only Rs.25,000/- and he is unable to pay the said amount in view of his financial difficulties, all the accused harassed the deceased for getting the remaining dowry amount of Rs.25,000/-. According to him, he took P.Ws.2, 3, 4, 5 and 6 to the house of the accused and when they enquired about the harassment caused to the deceased, they demanded P.W.1 to pay the remaining amount of Rs.25,000/- and he promised to pay the same within 2 or 3 months and requested not to harass his daughter and thereafter they returned back to their village and again accused abused the deceased and she informed the same to him. Thereafter, he got her back to his house and informed the same to village elders. A panchayat was held 4 or 5 days thereafter at Devaruppula village, which is the village of the accused, in the presence of the same elders and on the advise of the elders, he sent his daughter to the house of accused and promised to pay the remaining dowry amount within 2 or 3 months. But after four days of the said panchayat somebody telephoned to Panthula Balaiah from Devaruppula village and informed about the death of his daughter and the said Balaiah communicated the said message to him. In the cross-examination, he has stated that a panachayat was held about 3 or 4 months after the birth of the male child. The deceased stayed at the house of the accused for about 2 or 3 months after first panchayat. After second panchayat he brought the deceased to his house and about 10 days thereafter accused Nos.2 and 3 came and took her back to their house by promising to treat her affectionately. 4 days thereafter, his daughter died. He admitted both the panchayats were held at Devaruppula village. He has not stated before the police that he sent the deceased to house of accused after conducting the panchayat as in Ex.D.1. He admitted that Ex.D.2 agreement was executed to hold a panchayat on 10.12.2001 and as per the said agreement they have decided to hold a panchayat on 11.12.2001 at the house of one Burra Sathaiah at Devaruppula village, but the said panchayat could not be held though they went there. He admitted that the deceased was at his house till a letter was sent by the caste elders of Devaruppula village to the caste elders of his village. Ex.D.3 is the office copy of the said letter. In response to the said letter Ex.D.3 the caste elders of his village addressed a letter to the caste elders of Devaruppula village, which is Ex.D.4. He denied that during the entire correspondence the issue of additional dowry was not raised by the accused persons as alleged by him. He also stated that while his daughter was at his house, accused No.1 sent a letter through one boy of his village to his daughter. Ex.P.19 is the said letter, if Ex.P.19 sent to the handwriting expert for comparison with the admitted handwriting of accused No.1, he has no objection. Ex.P.21 is the letter addressed by the Sarpanch of Devaruppula village to the Sarpanch of Gowda caste elder of his village. Therefore, according to P.W.1 in regard to the harassment caused by the accused in connection with demand for payment of balance amount of Rs.25,000/- he has took elders from his village to the village of accused Devaruppula village and as per the advice of the village elders, he has sent his daughter to the house of the accused, promising to pay the balance amount within 2 or 3 months, but his daughter found dead within 4 or 5 days thereafter. P.W.2 one of the mediators has also stated about 4 or 5 months prior to the death of deceased, P.W.1 informed him that the accused were harassing the deceased for balance dowry. They took him, P.Ws. 5 and 6 to Devaruppula village and he also called P.Ws.3 and 4 of the said village. A panchayat was held in the house of the accused. They advised the accused to treat the deceased properly and assured that P.W.1 would pay the balance dowry after few days. The accused demanded balance dowry in the said panchayat and P.W.1 promised to pay the same within few days. They left the deceased at the house of accused and returned back to their village. After some days, P.W.1 informed about the death of his daughter. In the cross-examination, he has stated that he has attended only one panchayat referred to by him in his chief- examination. He was present at the time of agreement under Ex.D.2. In the said agreement the cause for differences between accused No.1 and deceased is shown as misunderstandings but the aspect of non payment of balance dowry is not mentioned in it. He admitted that they addressed a letter Ex.D.4 to the caste elders of Devaruppula village. But he denied after addressing Ex.D.4 till the death of the deceased they never went to the house of accused and never conducted any panchayat. After 3 or 4 days of Ex.D.4 they conducted the said panchayat at Devaruppula village and no document was executed at the time of said panchayat. P.W.3 another panchayatdar Sri K.Kantamaiah has specifically stated in his chief-examination about the conducting of panchayat in a private school at their village and he attended along with one E.Yadagiri (P.W.4) and others. All the accused attended it. The said panchayat was held due to misunderstandings between the deceased and accused No.1. They advised accused No.1 to live peacefully with his wife and not to quarrel. He do not know about the payment of any dowry by P.W.1 at the time of marriage. He do not know the reason for the death of the deceased. The other mediator P.W.4 E.Yadagiri has stated in his chief- examination that P.W.1 complained before them that the deceased was unable to attend agricultural works being an educated girl, they advised him to advise his daughter to attend marital obligations by adjusting herself and left the place. He also stated that about 3 or 4 months prior to the death of the deceased a panchayat was held near a private school in their village, but the said witness declared hostile by the prosecution. The other mediator K.Balaiah P.W.5 has stated about the payment of dowry of Rs.85,000/- by P.W.1 at the time of marriage and he has to pay the balance amount of Rs.25,000/-. He also stated about the harassment caused by the accused to the deceased demanding for balance dowry amount. According to him, himself, P.W.1, P.W.2 and P.W.6 gone to the house of accused and held a panchayat at Devaruppula viilage, and they advised accused No.1 to treat the deceased properly and assured them that P.W.1 would pay the balance dowry of Rs.25,000/- after some days. At that time, the deceased also accompanied them. After panchayat they left the deceased at the house of the accused and returned, and after 4 or 5 days they came to know that the deceased was killed. In the cross-examination, P.W.5 has stated that the deceased came from the house of accused to his village and complained him about the ill-treatment to her. On the same day they went to Devaruppula village. The panchayat was held at about 11.00 A.M. and one document was executed at that time. It is noted in the said document that accused No.1 and deceased agreed to live amicably. The said paper was handed over to one Rama Swamy, an elderly person of Devaruppula village of Gowda community. He is also an elderly person of Gowda community of their village. He received a letter Ex.D.3 from the above said Rama Swamy. He signed on it in token of acknowledgment. The contents of Ex.D.8 are correct. Panchayat was conducted after one month after receiving Ex.D.8. P.W.6 another mediator K.Siddaiah has also stated about the payment of dowry amount of Rs.85,000/- by P.W.1 to the accused and promised to balance of Rs.25,000/- after few days. About one week or 10 days prior to the death of the deceased, the deceased informed him that the accused persons were harassing her for the balance dowry. Thereafter, himself, P.Ws.2 and 5 went to Devaruppula village, and called P.Ws.3 and 4 and held a panchayat. The accused demanded Rs.25,000/-, if the said amount is not paid, they will not maintain her and allow her to live with accused No.1 as his wife. They advised them that they would see that P.W.1 paid the remaining dowry amount and advised them to maintain the deceased properly. They left the deceased to the custody of the accused and returned back to their village. Thereafter, they came to know that the deceased was killed. Therefore, according to them, immediately after the deceased complaining about the harassment caused by the accused, they have gone to Devaruppula village and held a panchayat. P.Ws.2, 5 and 6 who were the mediators belongs to the village of deceased i.e. Pasaramadla and other mediators P.Ws.3 and 4 belongs to the village of accused i.e. Devaruppula village. According to the mediators of Pasaramadla village, the deceased informed them about the harassment caused by the accused and thereafter, they have gone to Devaruppula village and held a panchayat in the presence of P.Ws.3 and 4. P.Ws.3 and 4 have not stated about the holding of panchayat with regard to demand for additional dowry and harassment of the deceased by the accused. According to P.W.3 a panchayat was held with regard to misunderstandings between the deceased and accused No.1 and P.W.4 has stated that P.W.1 complained before them that the deceased was unable to attend agricultural works being an educated girl, they advised him to advice his daughter to attend marital obligations by adjusting herself and left the place. As admitted by P.Ws.2, 5 and 6 with regard to panchayat, there was a correspondence between the elders of Devaruppula village and Pasaramadla village. The said correspondence was marked as Exs.D.1 to D.6. In Ex.D.1 it was mentioned that a panchayat was conducted in the presence of Kurimala Parasu Ramulu, who is P.W.2 and Yerukula Yadagiri, who is P.W.4 and assured to give the remaining dowry soon and after Anitha was sent to her in-laws house. Ex.D.2 is the letter addressed to the Gowda Caste people of Devaruppula village by the elders of P.W.1’s village. Wherein it was mentioned that there arose differences between Venkanna (accused No.1) and his wife Anitha (deceased) and both of them are requested the caste elders to decide it. On 11.12.2001 it was decided to hold a panchayat and they have decided that they would see that the elder of both parties present at 10.00 A.M at the house of Burra Sathaiah near the bus stand of Devaruppula village. This is their request made to the elders. Both parties agreed the decision taken by the elders. Hence the agreement. Therefore, the elders of P.W.1’s village addressed a letter to the caste elders of Devaruppula village for holding a panchayat on 11.12.2001 in the house of Burra Sathaiah, but no document was produced with regard to holding of panchayat on the said date. Ex.D.3 letter dated 10.07.2002 written by the caste elders of Devaruppula village to the P.W.1’s village elders stating that Venkanna, resident of their village married Anitha, daughter of Thanduri Ramnarsaiah (P.W.1), since the said Anitha did not send, the caste elders of Devaruppula village complained about the same and they wrote the letter after consulting said Anitha and her father. Therefore, as per the said document, the Devaruppula village elders have addressed a letter to the caste elders of Pasaramadla village of P.W.1 complaining about the deceased was not been sent to the house of the accused. The said letter was acknowledged by elders of village under Ex.D.4. Therefore, in none of the correspondence between elders of the Devaruppula village and elders of the deceased village i.e. Pasaramadla village, there is no mentioned about the demand of balance dowry by the accused and harassment of the deceased by the accused. P.W.1 has got marked Ex.P.19, letter said to have been written by the accused to the deceased. The said letter reads thus: “Five days ago, I send to your mother’s house. You said that I came to know that if I come there, you will return back. I am giving this opportunity. Come there. If you did not come face the trouble. It is a small matter, do not go with an axe. If you do not come though I said, you will face the trouble. If you want a better life. You can say if you want trouble. I am saying for your safety. You are hearing your mother’s words but you are not hearing my words. That is your like. I will hear as per your words. I am giving an opportunity. This letter is your end. Think over it. Do not miss this opportunity. I am saying for your safety. Change your mind and come there. Do not do unnecessary work. You know it. Do not see happy for today. See happy life during the entire life. If you come, nobody stop you. Do not hear the words of others. There is no value for this letter if you do not hear though I take trouble for you. Conscious is not agree. The new year is coming. Therefore, new year to you – you. I will tell you the remaining words after your arrival. You do as I said. It is dharmam. As soon as you receive this letter, you come back. If you do not come, it is fate for you but not your family.” By reading of the said letter, it is found that the deceased was not coming to the house of the accused and accused No.1 demanded her to come to his house by giving a last chance, otherwise she has to face the consequences and the said letter does not disclose anything about the payment of balance dowry by the father of the deceased. P.W.1 also got marked another letter Ex.P.21, which is the letter addressed to the Sarpanch, Pasaramadla Gram Panchayat by the Sarpanch of Devaruppula village, wherein it was mentioned that the son of Peddi Somaiah, resident of their village married Anitha, daughter of Thandur Ramnarsaiah of Pasaramadla village about three years back. About 6 months back a panchayat was took place. Since then they are living happily as per the advice of the village elders. On 20.05.2002 Anitha took to her parents’ house to settle the marriage of her brother saying that she may return on the next day, but she did not come. They asked them to send Anitha and they will wait till then, but she did not send and no value was given. She did not send