THE HONOURABLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.1239 OF 2004 JUDGMENT: This appeal is directed against the conviction and sentence passed by the VI Additional Sessions Judge, Tirupati in S.C.No.307 of 2001 on 30-06-2004. The appellants who are A-1 and A-2 were prosecuted for the offences under Sections 498-A and 304-B of IPC alleging that the deceased Murukula @ Mittayi Padma @ Vani was given in marriage to A-1, 2½ years prior to her death and at the time of marriage PW-1 the father of the deceased gave cash of Rs.20,000/-, a wrist watch and 2½ sovereigns of Gold ornaments and after one year she gave birth to a female child but the child died immediately. Thereafter A-1 and A-2 started harassing the deceased to bring additional dowry amount from her parents and started harassing the deceased both physically and mentally. Thereafter the deceased left to her parents house and stayed there for about six months and thereafter A-1 took the deceased to his house and PW-1 gave some money and household articles to A-1. On 27-02-2001 the deceased died by consuming poison in the house of the accused. On the information received by PW-1, himself and other family members gone to the house of the accused and found their daughter dead and immediately has gone to the Police Station and lodged a complaint and the same was registered as a case in Crime No.14 of 2001 under Sections 304-B and 498-A of IPC by PW-10. Subsequently, PW-11 took-up the investigation and conducted inquest over the dead body of the deceased and brought the dead body, send to the Government hospital for conducting autopsy and after arresting the accused and completion of investigation filed charge sheet. The learned Sessions Judge has framed the charges under Sections 498-A and 304-B of IPC against the accused and both the accused pleaded not guilty for the said charges. The prosecution in order to establish the said charges examined PWs.1 to 11 and got marked Exs.P-1 to P-13 and M.Os.1 to 3. No oral evidence was adduced by the defence but Exs.D-1 and D-2 were marked in the 161 Cr.P.C. statement of PW-4. Taking into consideration of the said oral and documentary evidence the learned Sessions Judge found both the accused guilty for the offence under Sections 498-A and 304-B of IPC and convicted for the offence under Section 498-A of IPC and sentenced to undergo rigorous imprisonment for a period of three (3) years and to pay fine of Rs.100/-, in default to suffer simple imprisonment for seven days and further convicted for the offence under Section 304-B of IPC and sentenced to undergo rigorous imprisonment for a period of seven years. Aggrieved by the said conviction and sentence the present appeal is filed by the appellants. Now the point that arises for consideration is: Whether the prosecution could able to establish the charges under Sections 498-A and 304-B of IPC against the accused beyond reasonable doubt? POINT: The appellants’ counsel stated that there is no evidence on record to establish the demand for additional dowry and harassment of the deceased by the accused. No mediation was held with regard to the demand for additional dowry or harassment by the accused. The PWs.1 to 3 are interested witness and their evidence cannot be relied up on. On behalf of the Public Prosecutor it is pleaded that the evidence of PWs.1 to 3 establishes the demand for additional dowry and harassment of the deceased by the accused prior to her death, in connection with the demand of dowry and as she died within seven years of her marriage, the prosecution could able to establish the offence under Sections 498-A and 304-B of IPC. In order to establish the charge under Section 304-B of IPC the prosecution has to establish that the deceased died under suspicious circumstances within seven years of her marriage and she was subjected to cruelty or harassment in connection with the demand of dowry prior to her death. To establish the offence under Section 498-A of IPC the prosecution has to establish that the deceased being subjected to cruelty by the accused prior to her death. In the present case, admittedly, the deceased died within two and half years of her marriage. According to PWs.1 to 3 the deceased was murdered by A-1 and A-2 by throttling. But whereas the evidence of the Doctor who conducted autopsy (PW-9) shows that there are no external injuries over the dead body of the deceased and as per the opinion of the said Doctor the deceased died due to consuming Organo Phosphate insecticide poison. Therefore, the prosecution could able to establish that the death of the deceased was under suspicious circumstances within seven years of her marriage. The next point to be established by the prosecution is that the deceased was subjected to cruelty or harassment in connection with demand of additional dowry prior to her death. To establish the same, the prosecution has examined PWs.1 to 3. PW-1 is the father of the deceased and according to him after the marriage the deceased lived in the house of the accused for one year happily and during Ugadi time A-1 and A-2 demanded a beerva, one cot with bed and household articles by way of Ugadi customary articles. As he sustained loss in his agricultural income he could not fulfill the demand of A-1 and A-2. The deceased used to visit his house and told him that A-1 and A-2 were demanding the above-mentioned articles and stayed in their house for 20 days and thereafter A-1 came to their house and took her to his house. After twenty days thereafter one male person came and informed him that his daughter consumed poison and she was in serious condition. But in the cross-examination he has stated that he promised to present Ugadi customary articles and it is a custom in their family that when the child died, mother used to stay in her parents house till 5th month of the child death and accordingly she came to their house. Therefore, from the admissions made by him in the cross-examination the deceased stayed in their house as per their custom after death of her child but not due to the harassment caused by the accused in connection with the demand made by them. The alleged demand for the articles made by the accused is towards presentation for Ugadi but not with regard to any additional dowry. More over, his evidence does not disclose any harassment caused by the accused to the deceased in connection with the said demand. PW-2 is the brother of the deceased also has stated about A-1 and A-2 demanding for beerva, one cot with bed and household articles and for non-fulfilling the said demand they harassed the deceased. But he did not speak when the said demand was made and when the same was informed to him by his deceased sister. PW-3 is the sister of the deceased and she also stated in her chief-examination that her deceased sister stayed in their parents house for about six months and she used to complain about the accused demanding additional dowry and other articles and they have convinced their younger sister saying that later they will fulfill their demand and her mother took her to her in-law’s house. She also stated that the deceased informed her that unless demand of accused is fulfilled she was not going to her house. Thereafter after 20 days A-1 came to their parents house and took the deceased to their house. Therefore, even from the evidence of PW-3 also the deceased stayed in her parents house for six months and thereafter A-1 came and took her to their house. If really the accused had harassed the deceased for additional dowry the question of A-1 taking back the deceased doe not arise. More over, she did not speak of when her sister informed her about the harassment and demand made by the accused. More over, as per the admissions of PWs.1 to 3 neither they held any panchayat with regard to the alleged demand made by the accused nor informed the same to anybody. Admittedly, one Bathekka was the mediator for marriage between the deceased and A-1 but they do not inform her also. PW-4 stated to be the resident of the same locality has only stated about his coming to know about the deceased consuming poison and saw the mob carrying the deceased on a Tractor to the hospital but she died on the way. PW-5 another witness who is also resident of the same locality has only stated about the deceased consuming poison and shifting her to the hospital and her death on the way to the hospital. Therefore, apart from the evidence of PWs.1 to 3 there is no other independent witnesses to speak about the demand for additional dowry or harassment caused by the accused to the deceased. The learned Sessions Judge has not recorded any finding with regard to the ingredients required to be proved for the offences under Sections 498-A and 304-B of IPC but simply extracted Sections 304-B and 498-A of IPC and Sections 113-A and 113-B of the Evidence Act and by drawing the presumption under Section 113-B of the Evidence Act convicted the accused. When the prosecution could not establish the harassment caused by the accused in connection with demand for additional dowry prior to her death the presumption under Section 113-B of Evidence Act is not available to the prosecution. Therefore, the accused were convicted without recording any finding of proving the ingredients for the offences under Sections 498-A and 304-B of IPC. Hence, the accused are entitled for the benefit of doubt. Hence, the prosecution has failed to establish the charges under Sections 304-B and 498-A of the IPC against the accused beyond reasonable doubt. In the result, the appeal is allowed and the conviction and sentence passed in S.C.No.307 of 2001 by the VI Additional Sessions Judge, Tirupati, is hereby set aside and both the accused are acquitted for the offences under Sections 498-A and 304-B of the IPC. _______________________ P. DURGA PRASAD, J September 09, 2011 PN THE HON'BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.1239 OF 2004 September 09, 2011