HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.72 of 2006 JUDGMENT: The appellants 1 to 3/A1, A2 and A4 were convicted by the lower Court under Section 306 I.P.C. and they were sentenced to rigorous imprisonment of five years; and the appellants 1 and 2/A1 and A2 were convicted by the lower Court under Section 304-B I.P.C. and were sentenced to rigorous imprisonment of seven years. Questioning the same, this appeal is filed. 2. The deceased is wife of A.1. A.2 is elder sister and A.4 is younger brother of A.1. A.3 who is husband of A.2, died when the matter was pending in the lower Court and the case against A.3 stood abated. A.1, A.2 and A.4 faced trial in the lower Court. Marriage of the deceased with A.1 took place on 21.02.1999. The deceased poured kerosene on to herself and set fire to herself on 08.12.1999 while she was in her parents’ house at Dharmavaram. Immediately she was shifted to Government Hopsital, Dharmavaram. PW.6 who is Deputy Civil Surgeon, Community Health Centre, Dharmavaram gave hospital intimation to the police as well as the Magistrate. PW.10 who was the then Judicial Magistrate of the First Class, at Dharmavaram, reached that hospital in the first instance and recorded Ex.P.8- dying declaration of the deceased. Subsequently, PW.11 Head Constable in Dharmavaram Town Police Station went to the hospital and is stated to have recorded statement of the deceased. Ex.P.7 is the statement said to have been recorded by P.W.11 at the Government hospital, Dharmavaram. Ex.P.7 was not formally proved by PW.11 and was marked by PW.6. After death of the deceased, PW.9 Mandal Revenue Officer, Anantapur conducted inquest on dead body of the deceased under the cover of Ex.P.12 - inquest report. PW.7 is the then Civil Assistant Surgeon, Government Hospital, Anantapur, who conducted post-mortem examination on dead body of the deceased and issued Ex.P.9 post-mortem report opining that the deceased died of shock due to extensive antemortem burns. 3. PWs 1 to 4 are relations of the deceased. PW.1 is mother of the deceased Ranganadhamma @ Shirisha. PW.2 is wife of brother of the deceased. PW.3 is sister of the deceased. PW.4 is brother of the deceased. PWs 1 to 4 turned hostile to the prosecution. PW.5 is having his house opposite to house of the accused in Guttur village of Penukonda Mandal. He also turned hostile to the prosecution. Evidence of PW.4 reveals that the deceased lived with A.1 for 15 days after her marriage, out of 9 months. 4. On 09.10.1999, the deceased gave Ex.P.10 report to Dharmavaram Police. PW.8 is the then Head Constable in Dharmavaram Police Station, who received Ex.P.10 and registered the same as case in Cr.No.197 of 1999 under Sections 498-A IPC and Sections 3 and 4 of the Dowry Prohibition Act and issued Ex.P.11 F.I.R. It is stated that C.C.No.285 of 2001 was filed in Cr.No.197 of 1999 against A.1 and A.2. PWs 1 to 4 gave a go-bye to the version contained in Ex.P.10 to the effect that the accused did not make any demand for any Scooter. But PWs.1 to 4 could not give any reason as to why the deceased committed suicide. 5. In Ex.P.7 statement said to have been recorded by PW.11 from the deceased, there is reference to demand for Scooter on the part of the accused. But in Ex.P.8 statement/dying declaration recorded by the Magistrate, there is absolutely no reference to any demand for Scooter by A.1 or by his family members from the deceased or from her parents. In my opinion, Ex.P.8 is more relevant piece of statement of the deceased under Section 32 of the Evidence Act. By the time of recording Ex.P.8 statement by PW.10, no other persons were present with the deceased, except the duty doctor PW.6. PW.10 says that the deceased was in a fit condition to give statement. PW.6 says that the deceased was conscious and coherent while recording the said statement. In Ex.P.8 itself, the Magistrate has noted that the declarant was in a fit condition to give statement after putting certain preliminary questions, as contemplated under Rule 33 of the Criminal Rules of Practice, the Magistrate proceeded to record the dying declaration. It is stated in Ex.P.8 by the deceased that all the accused harassed her stating that she was unfit for consummation and that she lodged report before the Deputy Superintending of Police. But the deceased did not state to the Magistrate that the harassment was because of not meeting the demand for Scooter, as alleged in Ex.P.10. In Ex.P.7 statement also, the deceased stated that her husband A.1 did not approach her for consummation attributing that she was unfit for consummation as she did not attain puberty and saying that she was given in marriage to him without attaining puberty. That was the initial reason given by the deceased for the harassment. She continues in Ex.P.7 to the effect that so saying, the accused were harassing and ill-treating and abusing her and they drove her out of the house stating that if she cannot get a Scooter from her parents, he will not allow her into the house for leading marital life. When the deceased is said to be unfit for consummation and for marital life, there is no question of accepting her for the purpose of leading marital life with her, even without she attaining puberty. Ex.P.10 report, which is not relevant under Section 32 of the Evidence Act, it was disclosed by the deceased that she was subjected to medical test at Bangalore and Vijayawada with regard to her puberty and the doctors also certified her puberty and gave certificates to that effect. No investigation was made by the Investigating Officer in that direction. To rule out the ground for harassment namely that the deceased did not attain puberty, no certificates issued by the doctors at Bangalore and Vijayawada on puberty of the deceased were collected and produced, and no doctor who gave those certificates was examined during investigation muchless during trial in the lower Court. From total reading of contents of Exs.P.7, P.8 and P.10, it is evident that there was no consummation of marriage between the deceased and A.1 on the ground that the deceased did not attain puberty and was not fit for marital life or for consummation. 6. The lower Court based convictions of the appellants on Exs.P.7, P.8 and P.10 statements of the deceased. Insofar as Ex.P.10 is concerned, it is not a relevant piece of evidence under Section 32 of the Evidence Act, because the said statement was given nearly two months prior to her death, and because the said statement is not in respect of the reasons for her death. Ex.P.10 only contains the reasons for the alleged harassment of the deceased and so it is outside the purview of Section 32 of the Evidence Act. As pointed out by the appellants’ counsel, PW.11 did not state that Ex.P.7 is the statement recorded by him from the deceased. The said fact was not elicited during trial in the lower Court. In any event, contents of Ex.P.7 cannot over - shadow the contents of Ex.P.8 dying declaration recorded by the Magistrate PW.10. In Ex.P.8 - dying declaration, the allegation regarding demand for Scooter is conspicuously absent. PWs 1 to 4 also ruled out demand for Scooter made by the accused. Therefore, I have no hesitation to conclude that none of the accused muchless A.1 made any demand for Scooter. Such demand can be expected only if the deceased was in a fit condition for consummation. 7. In the absence of proof of any demand for dowry or presents, the question of any of the accused being liable under Section 304-B IPC does not arise at all. In order to convict any of the accused under Section 306 IPC, the prosecution has to establish either of the three methods of abetment contemplated under Section 107 Cr.P.C. or, in the alternative, has to rely upon the presumption under Section 113-A of the Evidence Act. Admittedly, it is not a case of instigation or intentional aiding or conspiracy on the part of any of the accused towards the deceased to commit suicide. Since there is no valid proof of demand for dowry or presents, Clause (b) of explanation to Section 498-A IPC cannot be invoked in this case. In order to constitute cruelty under Clause (a) of explanation to Section 498-A IPC, the accused must be guilty of such wilful conduct which drove the deceased to commit suicide. There is no wilful conduct on the part of any of the appellants towards the deceased to drive her to commit suicide. Refusal on the part of A.1 or the other accused for marital life with the deceased or for sending away the deceased from the matrimonial house is for the reason that she was unfit for consummation as she did not attain puberty. In the absence of proof of the deceased being fit for consummation, the blame cannot be on the accused. Therefore, it cannot be said that they are guilty of any wilful conduct towards the deceased to drive her to commit suicide. Even without the deceased attaining puberty, one cannot expect A.1 to lead marital life with her. Because of the separation between the deceased and A.1 due to her misfortune, the deceased decided to end her life and set fire to herself by pouring kerosene on herself. In my opinion, none of the accused is guilty of any wilful conduct or blame-worthy conduct towards the deceased. In that view of the matter, conviction of the appellants under Section 306 IPC with the aid of Section 113-A of the Evidence Act is also unsustainable in law. I do not agree with reasoning and conclusion of the lower Court in convicting the accused for the above offences. 8. In the result, the appeal is allowed, setting aside the convictions and sentences passed by the lower Court against the appellants/A.1, A.2 and A.4, and acquitting them. ___________________________ SAMUDRALA GOVINDARAJULU,J Dt. 8th November, 2011. PNV