THE HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No. 1301 of 2004 Date: 28th July, 2011 Between: The Public Prosecutor … Appellant And: Bejjamwar Srinivas and 2 others … Accused / Respondents THE HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No. 1301 of 2004 JUDGMENT: This appeal at the instance of the State is filed against the acquittal of the accused in S.C.No.246 of 1998 by the II-Additional District & Sessions Judge, Nizamabad on 25.04.2003. The accused were prosecuted for the offence under Section 304-B IPC alleging that the deceased Venkat Laxmi alias Bejjamwar Laxmi was given in marriage to A1, and at the time of marriage, he was presented with Rs.1,00,000/- cash, one scooter and other household articles. After few days of marriage, A2 and A3 started harassing for additional dowry and started torturing the deceased. Once A1 to A3 beat the deceased and sent her to her parents house and the mother of the deceased sent her back and requested A1 not to harass the deceased. Six months back the deceased was taken to her parents house for delivery and she gave birth to a male child and thereafter A3 took the deceased to their house. Further, A1 to A3 started harassing and demanded Rs.20,000/- and gold. The deceased could not tolerate the harassment of the accused and vexed with her life, attempted to commit suicide by pouring kerosene on 19.12.1997 and she died while undergoing treatment at Government Headquarters Hospital, Nizamabad. The learned Sessions Judge has framed charge under Section 304-B IPC, and an alternative charge under Section 306 was also framed. The accused pleaded not guilty for the said charges. The prosecution in order to establish the said charges, examined PWs.1 to 12 and marked Exs.P1 to P8 and MOs.1 to 4. Taking into consideration the said oral and documentary evidence, the learned Sessions Judge found all the accused not guilty for the said charges either under Section 304-B IPC or under Section 306 IPC, and acquitted all the accused. Aggrieved by the said acquittal, the State has filed the present appeal. Now the point for consideration is whether the prosecution could able to establish the charge under Section 304-B or Section 306 IPC beyond reasonable doubt. On behalf of the Public Prosecutor, it is pleaded that the evidence of PWs.1 to 9 is sufficient to establish that the accused has demanded additional dowry of Rs.20,000/- and harassed the deceased and the deceased could not tolerate the harassment and committed suicide by setting fire to herself by pouring kerosene and the said fact was stated by her in her dying declaration which is recorded by PW3. The respondent’s counsel on the other hand pleaded that there is no material on record to establish the demand for additional dowry and harassment prior to the death of the deceased and the said dying declaration cannot be relied upon as it was recorded by the Magistrate by putting leading questions to the deceased to elicit answers; and the learned Sessions Judge has rightly appreciated the evidence available on record and held that the prosecution could not establish the said charges. PW1 is the mother of the deceased and in her chief examination she has stated that after marriage, A1 and the deceased lived happily for six months and at the time of marriage, they gave Rs.1,00,000/- of cash and other household articles and a scooter and A1 started demanding the deceased to bring Rs.20,000/- and five tolas of gold as additional dowry and her daughter informed that when she came to her house five or six months before her delivery; and after delivery she has gone to the house of the accused A1. Thereafter, one day her elder sister informed on telephone that A1 and A2 and another person told her that the deceased has set fire to herself. In the cross examination, she has stated that the marriage of the deceased was performed on 23.02.1996. She admitted that the deceased never wrote letters from Nizamabad, the deceased delivered in Kamareddy on 17.09.1997. They had a telephone connection at Kamareddy. She admitted that when the deceased was five months pregnant, the accused performed Srimantham. After delivery of the deceased, her husband died. She further admitted that no dowry was given to her younger daughter in her marriage even though her husband was alive at the time of marriage, as lot of amount was spent for the treatment of her husband, but she denied that she had no capacity to perform the marriage of the deceased at Kamareddy. PW2 is the son-in-law of PW1 and he stated that the deceased told two or three times to him in the house of PW1 that the accused was harassing her for additional dowry. Six months prior to the death, the deceased came to the house of PW1 and returned to the house of A1 three months after delivery; and in the cross examination, he admitted that he never questioned the accused demanding for additional dowry from the deceased. PW3 who is the younger sister of the deceased has stated that she came to know that the accused demanded Rs.20,000/- cash and five tolas of gold as additional dowry and in the cross examination she admitted that no dowry was given at the time of her marriage. Five months after marriage, her father died and two or three years prior to the marriage of the deceased, her father was suffering from various ailments and most of the retirement benefits were spent on his treatment and also for the marriage of the deceased, and her father has no money to give in dowry in her marriage. She admitted that her father has no money to spend on the deceased as already all the money was exhausted on his treatment. On the evidence of PWs.1 to 3, it is evident that PW1 stated that the accused No.1 to 3 demanded additional dowry and that the deceased told about the harassment caused by the accused for additional dowry of Rs.20,000/- when she came to the house six months prior to the delivery. It is not the case of PW1 that when the deceased came for delivery, she informed her that the accused are harassing for additional dowry of Rs.20,000/-. PW3 has categorically stated that her father was suffering from various ailments and her mother has spent all the amount for his treatment only and no money has been spent on the deceased. Basing on the said evidence, the learned Sessions Judge has come to the conclusion that PW1 has no money to give to A1 at the time of marriage towards dowry and a scooter and PW9 who is the employer of the brother of A1 has only stated that one day before the incident, he went to the house of the accused and found that a quarrel was going on in the house of A1. A1 has stated that he received less dowry and that he is entitled to receive remaining dowry. But the deceased has not stated anything to him. Therefore, as rightly observed by the lower Court, there is no evidence on record to show that the accused has demanded additional dowry from the deceased. Moreover the accused performed Srimantham for the deceased when she was five months pregnant. There is no dispute with regard to the death of the deceased due to burn injuries. The Doctors PWs.6 and 7 who treated the deceased specifically stated that the deceased sustained burn injuries and died on 11.08.1997 while undergoing treatment. Even though the death of the deceased is only within seven years of her marriage, but there is no evidence to establish that prior to her death, the deceased was subjected to harassment or cruelty by the accused in connection with the demand for dowry. The learned Public Prosecutor has relied upon dying declaration given by the deceased to PW5. PW5 recorded the dying declaration on receipt of requisition from the police on 19.02.1997. Ex.P3 is the dying declaration recorded by the Magistrate. In the said dying declaration, the Doctors only certified about the consciousness of the patient, but have not certified about the mental condition of the deceased for giving any statement. Therefore, the learned Sessions Judge has not relied upon the said dying declaration. Moreover, as rightly observed by the learned Sessions Judge, the said dying declaration was recorded by the Magistrate by putting leading questions to the deceased like: Whether any dowry was given at the time of marriage? Whether in-laws or husband looked after properly? Whether she has poured kerosene by herself or anybody has poured kerosene? How her parents-in-law have harassed her? How brother-in-law treated her? All these questions put by the Magistrate shows that he is pre- determined to elicit some information from the deceased with regard to the alleged demand of additional dowry or with regard to the alleged harassment caused by her husband and in-laws. Putting such questions by a Magistrate while recording dying declaration are not warranted and it is evident that the said Magistrate does not know how to record a dying declaration. Therefore, as rightly observed by the learned Sessions Judge, the said dying declaration cannot be relied upon to convict the accused. As discussed above, there is no material on record to show that the accused harassed the deceased for additional dowry prior to her death. As such the charge under Section 304 B IPC or Section 306 IPC are not established by the prosecution beyond reasonable doubt. The learned Sessions Judge has rightly acquitted all the accused and the said finding of the learned Sessions Judge does not warrant any interference in this appeal. In the result, the appeal is dismissed. _______________________________ (JUSTICE P. DURGA PRASAD) 28th July, 2011 KSM