IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD WEDNESDAY THE EIGHTH DAY OF DECEMBER TWO THOUSAND AND TEN PRESENT THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No. 9 5 0 OF 2004 Between: K.Narsinga Rao & 3-Ors. … Appellants V/s. The State of Andhra Pradesh Represented by its Public Prosecutor High Court of Andhra Pradesh Hyderabad … Respondent Counsel for the appellants : Sri A.L. Raju Counsel for the Respondent : Addl.Public Prosecutor The court made the following : (judgment follows 2nd page) THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No. 9 5 0 OF 2004 O R D E R : Aggrieved by the conviction and sentence recorded by the IV-Additional Metropolitan Sessions Judge, Hyderabad in SC.No. 177 of 2003 dated 23-4-2004 whereby and whereunder the appellants A-1, A-2 and A-4 were found guilty for the offence under section 304-B of IPC and they were convicted under section 235 (1) Cr.P.C. and sentenced to undergo simple imprisonment for seven years each, this criminal appeal is filed. 2. The facts of the case are that the Assistant Commissioner of Police, Saifabad Division, Hyderabad filed charge sheet under section 304-B IPC against the accused in Cr.No.373/2002 of Saifabad Police Station alleging that soon before the death of the deceased, the accused showed cruelty towards her for additional dowry and as such she committed suicide. 3. The learned XV Metropolitan Magistrate, Hyderabad on receipt of charge sheet assigned PRC.No. 1 of 2003 on his file and complied the formalities as contemplated under section 207 Cr.P.C. and committed the same to the Court of Session, Sessions Division, Hyderabad under section 209 (a) Cr.P.C. and under section 209 (c) Cr.P.C. submitted the record of the case and thereafter under section 209 (d) Cr.P.C. notified the Public Prosecutor of the commitment of PRC.No. 1 of 2003 to the Court of Session. 4. On receipt of records the said records, the learned Metropolitan Sessions Judge, Hyderabad, made over the same to the Court of IV Additional Metropolitan Sessions Judge, Hyderabad and assigned SC.No. 177 of 2003 for disposal according to law. 5. On appearance of the accused, the learned trial Judge examined them under section 228 Cr.P.C. alleging the substance of accusation. All the accused denied the same. Charge under section 304-B of IPC was framed, read over and explained to them. They all pleaded not guilty and claimed to be tried. 6. To substantiate its case, the prosecution examined in all 11 witnesses; PWs 1 to 11 and marked Exs.P1 to P19 besides MOs 1 to 3. On behalf of the accused no oral and documentary evidence was adduced. 7. After closure of the prosecution evidence, the accused were examined under section 313 Cr.P.C. for the incriminating evidence appearing against them. All the accused denied the same. 8. On appreciation of the oral and documentary evidence placed on record, the learned trial Judge found A-1, A-2 and A-4 guilty for the offence under section 304-B of IPC and whereas A-3 and A-5 were found not guilty for the said offence and they were acquitted. The trial Judge sentenced A-1, A-2 and A-4 to undergo simple imprisonment for seven years. 9. Aggrieved thereby, A-1, A-2 and A-4 filed the present criminal appeal. 10. Heard the learned counsel for the appellants as well as the learned Additional Public Prosecutor representing the State. 11. The learned trial Judge convicted the appellants as stated above on the basis of evidence adduced by the father of the deceased and also placing reliance on Ex.P3 signed by father of the deceased and father of the accused at the time of marriage, wherein it is stated that some properties were given towards dowry. The trial Judge perused the entire evidence and records and also the evidence adduced by the prosecution; more particularly the dying declaration recorded by the learned Magistrate, which reads as hereunder: “I am residing with my aunt; ladies of house, well and husband all are under one shelter. My husband want to a marriage. My marriage taken 2 (two) years back. I have received an interview card. My father instructed me not to attend interview. There is quarrel between my father and my in-laws. I thought that the only reason of quarrel is with my in-laws to my father I only myself. I myself poured kerosene on my body and set fire. My mother-in-law and sister-in-law not happy with that of my job. I want to do job. My parents want to do job. Whereas my inlaws are unwilling to send me to job. In this connection, there is a quarrel in between my parents and in-laws. My sister-in-law and my male stopped the fire and brought me to the hospital. My husband till then not turned up. Nothing to say any more. I have weared silk saree.” 12. In the above dying declaration, it is categorically stated by the deceased that the husband, in-laws prevented her from joining duty on the basis of call letter received by her. Aggrieved over the same, she committed suicide. Even though the other exhibits i.e., complaint and statement of PW-1, wherein some vague allegations are mentioned that the accused harassed her. But in all the exhibits i.e., dying declaration, 161 Cr.P.C. statement and Ex.P-1 complaint, the basic reason mentioned by the deceased and the immediate cause for committing suicide is refusal on the part of the husband and inlaws from joining her in job. In the dying declaration, when it is clearly and categorically admitted that she committed suicide only on the said reason, whatever evidence adduced by the father of the deceased, it is in the nature of hearsay evidence, which cannot be appreciated. The learned trial Judge had erroneously relied on Ex.P3 which is the dowry items given at the time of marriage. The first ground to convict the accused, since he received dowry and also it is stated that a sum of Rs.5000/- to be paid to the accused at the time of Deepavali. So the learned trial Judge opined that the evidence of PW-1 and the evidence of father of the deceased and convicted the appellants as stated hereinabove. Whereas section 304-B IPC reads as hereunder: Dowry Death: 304-B of IPC : (1) Where the death of a woman is caused by any burns or bodily injury or occurs other wise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection, any demand for dowry, such death shall be called “dowry death” and such husband or relative shall be deemed to have caused her death. Explanation : For the purpose of this sub-section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life. 13. The main ingredients of the said section, there should be harassment in connection with the demand of dowry and the death should be in suspicious circumstances. In the present case, the deceased committed suicide. Aggrieved over the refusal by the inlaws and the husband from joining duty on the basis of the call letter received by her. So at no stretch of imagination against A-1, A-2 and A-4 attracts offence under section 304-B of IPC and conviction and sentence inflicted by the learned trial Judge for the offence under section 304-B of IPC be and is hereby set aside and the appellants- A-1, A-2 and A-4 are acquitted of the charge under section 304-B of IPC. 14. In the result, the Criminal Appeal is allowed. __________________________ JUSTICE RAJA ELANGO. 08-12-2010 I s L THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No. 9 5 0 OF 2004 Circulation No.65 Date: 08-12-2010 Court Master : I s L Computer No. 43