THE HON’BLE SRI JUSTICE P.DURGA PRASAD CRIMINAL APPEAL NO.1371 OF 2004 ORDER: This appeal is directed against the conviction and sentence passed by the III Additional Sessions Judge, Tirupati in S.C.No.121 of 2002 on 16.06.2004. The appellant herein is the accused No.1 and he along with his mother (accused No.2) was prosecuted for the offence under Sections 498-A and 304-B IPC. According to the prosecution, the deceased B.Thilakavathi was married to accused No.1 in the year 1995. At the time of marriage, P.W.1, mother of the deceased provided some gold jewels to the accused, but not given any dowry as per agreement. After 3 years of their marriage, accused No.1 and his mother, accused No.2 started harassing the deceased and subjected her to cruelty to get cash of Rs.10,000/- from her mother as dowry. During their matrimonial life, the deceased gave birth to a female child about 2 years prior to her death. The deceased used to inform her mother (P.W.1) and paternal aunt (P.W.10) about the accused Nos.1 and 2 demanding to get Rs.10,000/- from her mother and subjecting her to cruelty. Due to the frustration, the deceased committed suicide by pouring kerosene and setting fire to herself on 11.06.2001 at 5.00 P.M. in her house. On hearing the cries of the deceased, the surrounding people rushed to the spot and found the deceased lying with burn injuries. Immediately, they sent a word to the accused No.1, who rushed to the spot and shifted the deceased to S.V.R.R.G.G. Hospital, Tirupati and while undergoing treatment she died in the hospital on the same day at 6.30 P.M. The learned Sessions Judge has framed the charges under Sections 498-A and 304-B IPC against accused Nos.1 and 2. Both the accused pleaded not guilty for the said charges. In order to establish the said charges, the prosecution examined P.Ws.1 to 10 and got marked Exs.P.1 to P.9 and M.Os.1 and 2. No oral and documentary evidence was adduced on behalf of the accused. 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 498-A IPC and convicted and sentenced to undergo rigorous imprisonment for a period of 3 years and to pay fine of Rs.300/- in default to suffer simple imprisonment for 3 months. Accused No.1 was further convicted for the offence under Section 304-B IPC and sentenced to undergo rigorous imprisonment for a period of 7 years. Accused No.2 was found not guilty for the charges under Sections 498-A and 304-B IPC. Aggrieved by the said conviction and sentence, the present appeal is filed by accused No.1 therein. Now, the point that arises for consideration is: Whether the prosecution could able to establish the charges under Sections 498-A and 304-B IPC against the accused No. 1 beyond reasonable doubt? P O I N T: The appellant’s counsel has pleaded that the deceased was brought up by P.W.10, V.Rajeswari and her husband from her childhood and they performed the marriage of the deceased with accused No.1 and at the time of marriage, no dowry was given. Therefore, the alleged harassment of the deceased by accused No.1 demanding to get Rs.10,000/- towards dowry appears to be false. He further pleaded that P.W.10 and her husband have not lodged any complaint with the police even though they came to know about the incident immediately, but whereas P.W.1, who is the natural mother of the deceased, has lodged the complaint only to extract money from accused No.1. He further pleaded that the prosecution has failed to establish the ingredients of Section 304-B IPC, as such accused No.1 is liable to be acquitted. The learned Additional Public Prosecutor on the other hand has pleaded that P.W.1, who is the natural mother of the deceased, P.W.2, who is the sister of the deceased, have categorically stated about the deceased informing them about the harassment caused to her by accused No.1 to get Rs.10,000/- from P.W.1 and the harassment caused by the accused was also stated by P.W.3, who is the neighbourer. Therefore, the prosecution could able to establish the harassment caused by accused No.1 in connection with demand for payment of Rs.10,000/-. P.W.10 also admitted about the deceased informing her about the demand for payment of Rs.10,000/- by accused No.1, as such the prosecution could able to establish the offences under Sections 498-A and 304-B IPC against accused No.1 and the lower Court has rightly convicted the accused No.1 for the above said charges. In order to establish the charge under Section 304-B IPC, the prosecution has to establish (i) that the death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances; (ii) such death must have occurred within 7 years of her marriage; (iii) soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband; (iv) such cruelty or harassment must be for or in connection with demand of dowry; In the present case, there is no dispute with regard to the death of the deceased due to burn injuries as the same was established by the prosecution from the evidence of P.Ws.1, 2, 3, 5, 6, 7 and 10. With regard to the death of the deceased within 7 years of her marriage, the appellant’s counsel has pleaded that there is no material on record to show that the deceased was married to accused No.1 within 7 years of her death. The Additional Public Prosecutor on the other hand has pleaded that P.Ws.1 and 2 have specifically stated about the performing of the marriage of the deceased with accused No.1 within 7 years of her death. P.W.1, who is the natural mother of the deceased, stating that she gave her 2nd daughter Thilakavathi in marriage to accused No.1 about 5 years back. But in the cross-examination, she has stated that she is illiterate and she cannot tell about the exact number of year when the marriage was held. P.W.2, who is the elder sister of the deceased, has specifically stated that the marriage of her sister was held in 1996 and the deceased died to burn injuries on 11.06.2001, i.e. within 7 years of her marriage. The next point to be established by the prosecution is that soon before her death, the deceased was treated with cruelty or harassment by accused No.1 in connection with demand for dowry. P.W.1, who is the natural mother of the deceased, even though stated in her chief-examination that she performed the marriage of the deceased with accused No.1 about 5 years back, in the cross-examination, she has stated that till one year age of her daughter Thilakavathi, she looked after her, thereafter as her younger sister Rajeswari has no daughters, on her request and consent, brought up the deceased Thilakavathi. Her sister Rajeswari and her husband, Narayana, performed the marriage of Thilakavathi. She further admitted that the marriage expenses are met by the accused. P.W.2, who is the elder sister of the deceased, also admitted in her cross-examination that right from the childhood days till marriage, her younger sister was residing with L.Ws.4 and 5 i.e. P.W.10 and her husband. The marriage of her younger sister was performed by her uncle and aunt and her mother contributed some amount for the marriage. Therefore, the marriage of the deceased was performed by P.W.10 and her husband having brought her up from the age of one year. P.W.10 also stated that they performed the marriage of Thilakavathi at Tiruchanoor and at the time of marriage she presented gold ornaments to the accused. Therefore, it is evident that there is no payment of dowry at the time of marriage of deceased with accused No.1. With regard to harassment caused by the accused and demanding Rs.10,000/-, P.W.1 has stated that the accused and deceased lived happily for about one year. Thereafter, accused No.1 used to send the deceased to her asking her to bring amount from her (P.W.1). Twice or thrice when she went to the house of deceased at Tirupati, accused No.1 beat the deceased in her presence and on one occasion he poured kerosene on her and tried to set her on fire, but on the intervention of the neighbours, his attempt was averted. In the cross-examination, she has stated that she used to visit Tirupati to the house of accused on and often. She admitted that her granddaughter is aged about 2 years and she do not remember the name of her granddaughter and she do not know whether she is studying or not. She denied that after the birth of her granddaughter, she never gone to Tirupati, therefore, she do not know any of the particulars of her granddaughter. P.W.2 also stated that her sister was informing to them that accused No.1 was demanding Rs.10,000/- and unless she meets his demand, he would see her dead body. In the cross- examination, she stated that only once she went to the house of the accused during the pregnancy time of her sister. Her sister used to come to the house of P.W.10 and from there she used to come to their house. After the marriage, her sister came to their house 2 or 3 times. Therefore, the deceased used to visit the house of P.Ws.1 and 2 only 2 or 3 times after her marriage i.e. within a period of 7 years. Moreover, if P.W.1 used to visit the house of the deceased and accused, she would have known the details of her granddaughter, but she could not state even the name of her granddaughter, that itself shows that she never visited the house of the accused. Therefore, her daughter informing her about the accused demanding Rs.10,000/- from her, cannot be believed. Moreover, the marriage was performed by P.W.10 and her husband without payment of any dowry, therefore, the question of accused No.1 demanding to get Rs.10,000/- from P.W.1 does not arise. The prosecution has examined P.W.3, who is the neighbour, to speak about the demand of Rs.10,000/- by the accused and also harassing the deceased. P.W.3, who is the neighbour of the accused has stated that the deceased used to inform her that both the accused demand her to get Rs.10,000/- from her mother. On the previous day of her death, she heard the sounds of accused beating the deceased and she heard her cries. On the date of incident in the afternoon at about 1.00 P.M. she saw the deceased in front of her house when she was feeding meals to her daughter. Around 5.00 P.M in the evening she heard the shouts of deceased from their portion and also heard the sounds of banging of doors. She went outside her house and called neighbours and went along with them into the house portion of the deceased. They saw her lying with burn injuries in their kitchen. But in the cross- examination she admitted that she did not state before the police that on the previous day of the incident, she heard the shouts of beating and cries of the deceased. Except the information furnished by the deceased, she do not know personally about the bickerings between the accused and the deceased. On the date of incident, when the deceased was feeding to her child just by then both the accused returned from market for their lunch and at that moment there were no quarrellings among them. Therefore, even though P.W.3 has stated that the deceased informing her about the demand of Rs.10,000/- by the accused, her evidence with regard to hearing the sounds of the accused beating the deceased and hearing the cries of the deceased is an improvement made before the Court as she did not state the same before the police in her statement. Therefore, from the evidence of P.W.3, it is only evident that the deceased informed her about the accused demanding her to get Rs.10,000/- from her mother. P.W.10, who is the aunt of the accused, who performed the marriage of the deceased, has specifically stated in his chief- examination that after the marriage, the deceased Thilakavathi used to come to her house at Pichatur and she did not use to tell her anything about her family affairs. She was declared as hostile and in the cross-examination by Additional Public Prosecutor, she admitted that she has stated before the police in her 161 Cr.P.C. statement to the effect that since three months after her marriage, both the accused used to harass the deceased to bring an additional dowry of Rs.10,000/- and this fact was informed to them by the deceased whenever they used to go to Tirupati. But in the latter part of the cross-examination she has admitted that the deceased did not inform to her as contained above. Therefore, from the above it is evident that the admissions made by P.W.10 is only with regard to the statement made before police in her 161 Cr.P.C. statement, but the said fact was not stated to her by the deceased. Therefore, P.W.10, who has brought up the deceased and performed her marriage, did not state anything about the harassment of the deceased by the accused and demanding Rs.10,000/. P.W.1 was informed about the deceased sustaining burn injuries and admitted in the hospital by the husband of P.W.10, and she came to the Tirupati and saw the dead body of her daughter on the next day morning and thereafter she lodged the complaint with the police. As admitted by her, by the time she has gone to the police station, her younger sister P.W.10, her husband and her daughter P.W.2, her son Sundaram and her brother Gopal were present in the police station, but none of them have lodged any complaint with the police. When P.W.10 and her husband were present immediately after the incident in the hospital and also in the police station, why they did not lodge the complaint was not explained by the prosecution and whey they have waited till the arrival of P.W.1 to Tirupati for lodging the complaint. Moreover, P.W.1 has stated about the demand for Rs.10,000/- and not specified the manner in which the deceased was harassed or treated cruelly by the accused except stating that accused No.1 beat the deceased in her presence on one occasion and tried to pour kerosene on her and set fire to her. The said fact was not supported by any of the witnesses examined by the prosecution. P.W.2 has also not spoken about the mode of harassment caused by the accused to the deceased. The learned Sessions Judge basing on the admission made by P.W.10 in her cross-examination has found that she has supported the version of P.Ws.1 and 2 with regard to harassment caused by the accused and demand for Rs.10,000/- and found the accused No.1 guilty for the offence under Sections 498-A and 304- B IPC. As already observed above, P.W.10 has not admitted about the deceased informing her about the harassment made by the accused, but she only admitted about her giving such statement before the police. Therefore, the said statement recorded under Section 161 Cr.P.C., cannot be relied upon when she has not spoken the same before the Court. Even if the evidence of P.Ws.1 and 2 has taken into consideration, the prosecution could only establish about the demand for Rs.10,000/- by accused No.1, but the prosecution could not establish the harassment or cruelty caused by accused No.1 to the deceased. Mere demanding of Rs.10,000/- does not amount to any harassment or cruelty on the part of the accused. Thus, the prosecution could not able to establish that the deceased was treated with cruelty or harassment prior to her death in connection with demand for dowry. Therefore, the finding recorded by the learned Sessions Judge in that regard is liable to be set aside. Thus, the prosecution has failed to establish the offence under Sections 498-A and 304-B IPC against the accused No.1 beyond reasonable doubt. In the result, the appeal is allowed. The conviction and sentence passed by the learned III Additional Sessions Judge, Tirupati in S.C.No.121 of 2002 dated 16.06.2004 is hereby set aside and the accused No.1 is acquitted for the offences under Sections 498-A and 304-B IPC. _______________________ P.DURGA PRASAD, J 18th November, 2011 Ksp