THE HON’BLE SRI JUSTICE P.DURGA PRASAD CRIMINAL APPEAL No.965 OF 2004 ORDER: This appeal is directed against the conviction and sentence passed against the appellant in S.C.No.23 of 2003 by the III Additional Sessions Judge (Fast Track Court), Nalgonda on 28.04.2004. The appellant, who is accused No.1, along with his parents, accused Nos.2 and 3 and his sister, accused No.4, and the grand parents, accused Nos.5 and 6 were prosecuted for the offence under Section 304-B IPC. According to the prosecution, the marriage of the deceased Deepthi @ Sumathi was performed with accused No.1 about a year back prior to the date of complaint and at the time of negotiations, parents of the deceased agreed to pay Rs.4,25,000/- towards dowry. At the time of the marriage, the parents of the deceased paid an amount of Rs.3,50,000/- and Rs.25,000/- towards household articles and promised to pay the remaining amount afterwards. After the marriage, as the remaining amount was not paid, the accused harassed the deceased in connection with the payment of balance dowry. On 27.03.2002, the deceased committed suicide in the house of the accused by consuming poison. On the complaint given by P.W.1, the father of the deceased, P.W.14 has registered the case in Crime No.25 of 2002 and took up the investigation. Thereafter, the investigation was taken up by P.W.15 and after completion of the investigation charge sheet was filed against accused Nos.1 to 6. The learned Sessions Judge has framed the charge under Section 304-B IPC against all the accused. All the accused pleaded not guilty for the said charge. In order to establish the said charge, the prosecution examined P.Ws.1 to 15 and got marked Exs.P.1 to P.12 and M.Os.1 and 2. In defence, the accused No.1 examined himself as D.W.1 and also examined D.Ws.2 and 3 on their behalf. The learned Sessions Judge by taking into consideration of the said oral and documentary evidence found accused No.1 guilty for the offence under Section 304-B IPC and convicted and sentenced to undergo rigorous imprisonment for a period of 7 years and also to pay fine of Rs.500/- in default Simple Imprisonment for 6 months. Accused Nos.2 to 6 were found not guilty and they were acquitted. Aggrieved by the said conviction and sentence, the present appeal is filed by accused No.1. Now, the point that arises for consideration is: Whether the prosecution could able to establish the charge under Section 304-B IPC against accused No.1 beyond reasonable doubt? P O I N T: Learned Senior Counsel Sri Padmanabha Reddy appearing for the appellant has pleaded that there is no evidence on record to show that accused No.1 harassed the deceased in connection with demand for balance dowry prior to her death. He also pleaded that the lower Court has only relied upon two contusions found on the dead body of the deceased and came to the conclusion that the accused No.1, who was present along with her at the time of her death and failed to explain the same, liable for the offence under Section 304-B IPC by drawing the presumption under Section 113- B of Evidence Act. The learned Public Prosecutor on the other hand has pleaded that the evidence of P.Ws.1 to 6 is sufficient to establish the harassment caused by the accused No.1 in connection with demand for balance dowry and supported the findings recorded by the learned Sessions Judge. The allegations made against the present accused are that at the time of his marriage with the deceased, P.W.1 has agreed to pay Rs.4,25,000/- towards dowry, but paid Rs.3,50,000/- and agreed to pay the balance amount after the marriage and as he did not pay the said balance amount, the accused harassed the deceased and as she could not tolerate the harassment caused by the accused, committed suicide. P.W.1, father of the deceased has not spoken anything against accused No.1. In the chief examination itself he has stated that his daughter reported to his wife that accused Nos.2 to 5 harassing her and torturing her for remaining dowry amount. Her daughter was unwilling to join the matrimonial society of accused No.1 on the ground that accused Nos.2 to 5 subjected her to cruelty in connection with demand for balance dowry amount. According to him, he has paid Rs.3,50,000/- at the time of marriage and promised to pay the balance dowry amount after the marriage. In the cross-examination he admitted that he used to borrow money for his family necessities, from accused No.2. He further admitted that on 15.09.2001 he borrowed Rs.15,000/- from accused No.2 by executing a document and he paid loan amount to accused No.2 with interest. P.W.2 mother of the deceased has stated about her daughter informing her that accused Nos.1 to 6 subjected her to cruelty and harassment in connection with demand for balance dowry amount. Both P.Ws.1 and 2 have not specifically stated on what date their daughter came to their house and informed them about the harassment caused by the accused in connection with demand for balance dowry amount. P.Ws.3 and 4 are brothers of the deceased. According to them, whenever they visited the house of the accused, their sister informed them about the harassment in connection with demand for balance dowry amount by the accused persons. It is not the case of P.Ws.1 and 2 that the deceased informing her brothers (P.W.Nos.3 and 4) about the harassment caused by the accused and they have not spoken anything about the deceased informing her brothers about the harassment caused by the accused. Apart from the above said persons, the prosecution has examined P.Ws.5 and 6, who are the neighbours of the accused. P.Ws.5 and 6 stated that 2 or 3 times deceased came to their house and reported that her in-laws used to harass her in connection with dowry amount. They did not specifically state on what date she has came to their house and informed about the same. The learned Sessions Judge has not recorded any finding with regard to demand for balance dowry amount by accused No.1 even though he extracted the provisions of Section 304-B IPC and Section 113-B of Evidence Act in the judgment. The above evidence of P.Ws.2 to 6 does not specifically disclose about the harassment caused by accused No.1 in connection with demand for dowry. Moreover, according to them all the accused harassed the deceased in connection with payment of balance dowry amount. When accused Nos.2 to 6 were acquitted by the lower Court and without recording any finding against accused No.1, it cannot be said that accused No.1 has harassed the deceased in connection with payment of balance dowry amount. On the other hand, as admitted by P.Ws.1 and 4, P.W.1 used to take loan from accused No.2, who is the father of accused No.1. When there is a demand for balance dowry amount by the accused, the question of their lending amount to P.W.1 does not arise. Therefore, it shows that there is no demand for balance dowry amount by the accused. With regard to death of the deceased, all the witnesses are admitted that she was found dead in the house of the accused by consuming poison. The Doctor, who conducted autopsy, P.W.9 has stated that he found external injuries over her body i.e. Contusion 2 X 1 cm on infra-auxiliary region on right side and Contusion 1 X ½ cm on right thumb. According to him, the cause of death is due to consuming of Organophosphate and insecticide poison. Therefore, the death of the deceased was due to consuming of poison. The learned Sessions Judge basing on the evidence of P.W.9 as he found two contusions over the body of the deceased, and the accused No.1 was alone present in the house at the time of the incident and as he failed to establish the defence taken by him with regard to the deceased demanding to put up separate family from other accused and the deceased was suffering with stomachache, drawn the presumption that she was subjected to physical assault and cruelty prior to her death. Except the above evidence, there is no material on record to show that accused No.1 harassed the deceased in connection with demand for balance dowry amount prior to her death. The drawing of presumption under Section 113 – B of Evidence Act by the learned Sessions Judge, cannot be accepted. Mere presence of injuries on the body of the deceased and non- explanation of the said injuries by the accused cannot be a ground to drawing the said presumption. Thus, the prosecution has failed to establish that the appellant/accused No.1 herein has harassed the deceased for payment of balance dowry amount prior to her death and thereby failed to establish the charge under Section 304-B IPC against the accused beyond reasonable doubt. In the result, the appeal is allowed. The conviction and sentence passed by the learned III Additional Sessions Judge (Fast Track Court) Nalgonda in S.C.No.23 of 2003 dated 28.04.2004 is hereby set aside and the accused No.1 is acquitted for the offence under Section 304-B IPC. _______________________ P.DURGA PRASAD, J 02nd September, 2011 KSP