IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2022 of 2004 DATE: 12.12.2011 Between: Udai Singh Rathod …… Appellant And The State of A.P. rep. by Public Prosecutor …… Respondent HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2022 of 2004 JUDGMENT : The appellant/A-1 was convicted by the lower Court under Section 498-A I.P.C and was sentenced to rigorous imprisonment of three years and fine of Rs.5,000/-. Questioning the same, the accused filed this appeal. 2) Trial of the case in the lower Court proceeded against A-1 to A-7 for offences under Sections 498-A, 304-B I.P.C and Sections 3 and 4 of the Dowry Prohibition Act. Appropriate charges under those sections of law were framed by the lower Court against A-1 to A-7. After trial, the lower Court found A-2 to A-7 not guilty of all the charges, and also found A-1 not guilty of the charges under Section 304-B I.P.C and Sections 3 and 4 of the Dowry Prohibition Act, but found A-1 alone guilty under Section 498-A I.P.C. A-1 is husband of the deceased Shivani. It is alleged that A- 1 was harassing the deceased for additional dowry of Rs.1,00,000/- from her parents and that on 05.02.1998 the deceased committed suicide by hanging as she was unable to bear the said harassment for additional dowry. Marriage of the deceased with A-1 took place on 24.05.1997. The deceased died by committing suicide within a year of her marriage with A-1. In spite of it, the lower Court for its own reasons recorded acquittal of A-1 under Section 304-B I.P.C but strangely found him guilty under Section 498-A I.P.C. The State/Public Prosecutor did not choose to file any appeal against acquittal of A-1 under Section 304-B I.P.C. The said finding of acquittal of A-1 under Section 304-B I.P.C became final. When the offence under Section 498-A I.P.C is part and parcel of the major offence under Section 304-B I.P.C, conviction against A-1 under Section 498-A I.P.C cannot stand at all. One of the requirements under Section 304-B I.P.C is that the deceased woman was subjected to cruelty or harassment by her husband for or in connection any demand for dowry. Subjecting a woman to cruelty or harassment by her husband for or in connection with any demand for dowry, is covered by clause (b) of explanation to Section 498-A I.P.C. Finding of the lower Court that A-1 is not guilty under Section 304-B I.P.C rules out subjecting the deceased herein to cruelty or harassment by A-1 for or in connection with any demand for dowry. In the light of the said finding, the lower Court should not have found A-1 guilty under Section 498-A I.P.C, as it becomes inconsistent finding. 3) Apart from that, there is no direct evidence of A-1 subjecting the deceased to cruelty for the sake of any additional dowry, except what was said to have been informed by the deceased to the witnesses. P.W-1 is father of the deceased. P.W-2 is P.W-1’s brother’s son. It is their evidence that whenever the deceased was coming to their houses, the deceased was narrating the harassment being meted out to her by A-1 and others. Except from what the deceased informed them, they have no personal knowledge of the alleged harassment. I n Kans Raj V. State of Punjab[1] the Supreme Court held that what was informed by the deceased to the witnesses as and when she came to their houses, cannot be equated with a statement of the deceased relevant under Section 32 of the Evidence Act, as the said statements were not made in any imminent expectation of death. Therefore, the above evidence of P.Ws 1 and 2 is not admissible in evidence. In the absence of admissible and relevant pieces of evidence before the Court about cause of her suicide, the lower Court erred in finding A-1 guilty under Section 498-A I.P.C. I do not agree with reasoning and finding of the lower Court against A-1 under Section 498-A I.P.C. 4) In the result, the appeal is allowed setting aside the conviction and the sentences passed by the lower Court against the appellant/A-1 and acquitting him. _______________________________ SAMUDRALA GOVINDARAJULU, J December 12, 2011 ksh [1] AIR 2000 Supreme Court 2324