HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2637 of 2004 JUDGMENT: The appellant/A.1 was convicted by the lower Court under Section 498-A IPC and was sentenced to rigorous imprisonment of three years and fine of Rs.1,000/-. Questioning the same, the accused filed this appeal. It is alleged by the prosecution that A.1 was subjecting the deceased wife-Bhagya to cruelty for the sake of additional dowry and that unable to bear the said harassment, the deceased committed suicide on 01.07.2002 at her maternal house by pouring kerosene on herself and setting fire to herself. The lower Court tried A.1 and his father A.2 for the offence under Section 304-B IPC. Plea of the accused is one of not guilty. After trial, though the lower Court found A.1 and A.2 not guilty of the charge under Section 304-B IPC, found A.1 alone guilty of the offence under Section 498-A IPC. During trial in the lower Court, parents of the deceased were examined as PWs.1 and 2 and sister and maternal uncle of the deceased were examined as PWs.3 and 4 respectively. PW.5 is neighbour of PWs.1 and 2. After considering the entire evidence on record, the lower Court came to the conclusion that there was no definite and satisfactory evidence of ill-treatment of the deceased for additional dowry at any time muchless during immediate proximity to the date of her death on 01.07.2002, in order to find them guilty under Section 304-B IPC. The State did not file any appeal questioning acquittal of the accused for the offence under Section 304-B IPC; and it has become final. While recording acquittal under Section 304-B IPC the lower Court proceeded to consider the case under Section 498-A IPC to the effect whether there was any harassment or cruelty as contemplated under clause (a) of explanation to Section 498-A IPC, which harassment lead the deceased to commit suicide. The lower Court basing on evidence of PWs.1 to 5 found the accused guilty under Section 498-A IPC. In my opinion, finding of the lower Court about cause of death of deceased as suicide, is itself shaky. As per Ex.P.11 dying declaration of the deceased recorded by the Magistrate PW.12, it is a case of accidental burns. In Ex.P.11, the deceased while undergoing treatment in hospital stated to the Magistrate that in the afternoon at about 2.00 P.M. on the previous day she went for preparation of tea and that kerosene oil was on the floor and she thought the said oil as water and applied fire to the kiln and that kerosene oil on the ground caught fire and she sustained burn injuries. It was the one and only statement of the deceased on record. As per the said version of the deceased, it is a case of accidental burns and not a case of suicide. But, the lower Court did not place reliance on Ex.P.11 dying declaration on the ground that photographs filed by the prosecution reveal that the incident did not take place in kitchen but in a room of the house and that there is every likelihood of the deceased being influenced by her in-laws as the incident took place in her matrimonial house. After the incident, it was father-in-law (A.2) and brother-in-law who brought the deceased to the hospital for admission. Neighbour of the accused as PW.7 who turned hostile to the prosecution otherwise stated that after hearing commotion in the house of the accused, he rushed into the house and saw smoke coming out of the room which was bolted from inside and that after applying pressure on doors of the room, the doors were opened and they found the deceased in flames. This is another circumstance which was taken by the lower Court to come to the conclusion that it is a case of suicide and not a case of sustaining burn injuries accidentally. Assuming for a moment for the sake of argument that this is a case of suicide committed by the deceased, then it has to be seen whether there is legal evidence in support of the prosecution to show that the deceased was subjected to such cruelty or harassment which led her to commit suicide as contemplated under clause (a) of explanation to Section 498-A IPC. The entire evidence of PWs.1 to 5 is to the effect that the deceased was subjected to harassment by the accused by demanding additional dowry. PW.1 did not say so in Ex.P.1 report given by him to the police. There is no whisper of demand of any of the accused for additional dowry, as per allegations in Ex.P.1. At any rate, none of PWs.1 to 5 is a witness for the alleged cruelty or harassment of the deceased by A.1. Except what was stated to have been narrated by the deceased to them whenever the deceased used to come to her maternal house, none of PWs.1 to 5 had any personal knowledge of the alleged cruelty or harassment of the deceased by A.1 for any reason. The information said to have been conveyed by the deceased to her maternal family members including PWs.1 to 5 is not an admissible piece of evidence. It will not attract Section 32 of the Indian Evidence Act as the said information was not furnished by the deceased in expectation of her death (see Kansraj v State of Punjab[1]). In the absence of any legal evidence before the Court on harassment or cruelty towards the deceased by A.1, the lower Court erred in finding the accused guilty under Section 498-A IPC. I do not agree with reasoning of the lower Court in finding A.1 guilty under Section 498-A IPC. Accordingly, the appeal is allowed setting aside the conviction and the sentence passed by the lower Court against the 1st accused/appellant and acquitting him. _______________________ SAMUDRALA GOVINDARAJULU,J Dt.14th December, 2011 PNV [1] AIR 2000 Supreme Court Cases 2324