HON'BLE SRI JUSTICE B.N .RAO NALLA Crl. A.No. 66 of 2006 DATED : 09.07.2010 Between : Hakimkar Srinivas … APPELLANT A N D The State of A.P. through S.H.O, Rep. by its Public Prosecutor …RESPONDENT JUDGMENT: This Criminal Appeal is directed against the judgment, dated 12.01.2006 delivered in S.C. No. 97 of 2004 whereby the Assistant Sessions Judge, Mahaboobnagar, having considered the evidence both oral and documentary, found the appellant-A1 guilty of the offence punishable under Section 304-B IPC and sentenced him to undergo rigorous imprisonment for a period of ten years. The appellant-A1 was also found guilty of the offence punishable under Section 4 of the Dowry Prohibition Act and sentenced to undergo rigorous imprisonment for six months and pay a fine of Rs.1,000/-, in default, to suffer simple imprisonment for two months. A2 to A5 were found not guilty of the alleged offences, and accordingly, they were acquitted. The case of the prosecution, in brief, is that on 28.08.2002, PW1 – de facto complainant, who is the father of Samyuktha – deceased, performed the marriage of his daughter with A1 – H. Srinivas. PW1 gave Rs.2,50,000/-, 10 tulas of gold, and a Hero Honda Splendor Motor cycle to his son-in-law as dowry. Since the day of the marriage, A1 was habituated to luxurious life and subjected his wife to physical and mental harassment for additional dowry. On that PW1 paid Rs.1,50,000/- to his son-in-law through A4, who is the brother-in-law of A1, and with that amount A1 purchased a plot. Even after that A1, being not satisfied with the additional dowry, continued to harass his wife with the active support and encouragement of the other the accused. Unable to bear with the harassment, his wife committed suicide by pouring kerosene on her peson and setting herself ablaze and succumbing to injuries on 12.08.2003. Then, the father of the deceased lodged a police report, based on which, the Addl. Superintendent of Police, Mahabubnagar, registered a case against A1 to A5 for the offence under Section 304-B IPC and under Section 4 of Dowry Prohibition Act, and after completing the investigation, filed charge sheet. To substantiate the case of the prosecution, PWs.1 to 11 were examined and Exs.P1 to P6 were marked. No witnesses were examined except marking Ex.D1 on behalf of the defence. CW1 was examined and Exs.C1 to C3 were marked, on behalf of the Court. The trial Court, having considered the evidence on record, found A1 guilty of the alleged offences and convicted and sentenced him as stated supra in paragraph No.1 while acquitting A2 to A5 of the charged offences. Aggrieved by the judgment of conviction, A1 preferred this Criminal Appeal. PW1, father of the deceased-Samyuktha, deposed that he gave dowry of Rs.2,50,000/- to A1 at the time of marriage of his daughter with A1. After the marriage, A1 shifted his family to Mahaboobnagar from Gadwal on account of his transfer and stayed in the house of Dharma Reddy. He further deposed that his daughter telephoned him that A1 demanded her to bring additional dowry of Rs.1,50,000/-. Then, PW1, as per the direction of A1, paid him that amount through A4. Five or six months thereafter, PW1 and his wife went to A1’s house to see their daughter, who was carrying fifth month, during which time, A1 picked up quarrel and asked them not to come to his house again and beat their daughter. Fifteen days thereafter, PW7, the house owner of A1, telephoned him that cylinder was burst in the portion of his house where the deceased and A1 were staying. PW1 rushed to Government Head Quarters hospital, Mahaboobnagar, and found the dead body of his daughter there. Thereafter, he went to the house of his daughter and found there a kerosene tin, matchsticks and a matchbox. He further deposed that his daughter used to inform him that A1 used to say that he would marry his niece. PW2, mother of the deceased, deposed that A1 purchased a plot with the money given to him towards additional dowry and wanted to construct a house therein. PWs.1 and 2 suggested to A1 not to construct any house for the reason that their daughter was pregnant. Two weeks thereafter, she received a telephone call that her daughter committed suicide by pouring kerosene on her person and setting herself ablaze. PW3, brother of the deceased, deposed that A1 used to suspect his sister whenever she talked to any person. A1 also demanded additional dowry of Rs.1.5 lakhs and their parents paid it. His sister died due to harassment meted out to her by A1. PW4, another brother of the deceased, deposed that he was studying 1st Year Intermediate at Vikas college by staying at his sister’s house and A1 demanded his sister to bring additional dowry. Even in his presence, A1 used to quarrel with his sister for additional dowry. He further deposed that his sister died only because of the harassment of A1. PW5, co-brother of PW1, deposed that PW1 collected Rs.1.5 lakhs by taking hand loan from his co-brothers and gave the same to A1 towards additional dowry. Few days thereafter, he received a telephone call from the house owner of A1 that A1 locked the house by driving the deceased out of the house. On such information, when he went to her house, he found her waiting outside the house, then he took her to Kachiguda where his another co-brother stays. Three days later, A1 came there, quarrelled with his wife and stated that how they could bring his wife without his permission and that he has got every right to drive her out of the house. Saying so, he beat the deceased in the presence of all their family members and left the house. Twenty days thereafter, they received information regarding the death of the deceased. Then, all the members of their family came to Government Hospital, Mahaboobnagar and saw the dead body of the deceased there. That they had also found a kerosene tin and matchbox at the scene of offence in the house of the accused. PW6, who is another co-brother of PWs.1 and 5 deposed that in the month of August 2003, he received a telephone call from the house owner of A1, that the deceased committed suicide by pouring kerosene on her person and setting herself ablaze. Immediately, he went to Government Hospital, Mahaboobnagar, saw the dead body of the deceased, went to the house of A1 and observed kerosene tin, matchbox, etc. at the scene of offence. PW7, who is the house owner of A1 staying in another portion of his house, deposed that on 12.08.2003, at about 9.00 or 9.30 a.m., while he was performing Pooja, he heard some noise and came out of his portion and observed that the portion of A1 was full of smoke, whereas A1 was standing at the front door. He enquired with him and came to know that his wife was burning. Then, neighbours came there and tried to put off the flames by covering the deceased with blankets. He enquired with the deceased about the telephone number of her father and when she gave the number along with the code, he informed him that his daughter sustained burn injuries and that they were shifting her to hospital. When PW7 telephoned to II Town Police Station immediately one Constable came and accompanied the deceased to the hospital. A1 also came to the hospital. He further deposed that when he enquired with the deceased as to the cause of the burning, she told that when she was boiling milk her saree caught fire, and except that she did not say anything. In cross-examination, he deposed that while A1 was trying to rescue the deceased he also sustained injuries. PW8, who is known to the deceased, deposed that he saw the dead body of the deceased in the Government Hospital, Mahaboobnagar and acted as panch witness for inquest. He further deposed that the family members of the deceased informed him that the husband of the deceased used to demand and harass her for dowry. PW9, the Mandal Revenue Officer, Mahaboobnagar, deposed that on 13.08.2003, on receiving information, he conducted inquest over the dead body of the deceased, observed the dead body at mortuary and found the total skin of the body peeled off due to heavy burns, therefore, he did not mention the identification marks. He further deposed that he examined the relations of the deceased and they all stated on similar lines that all the accused, being not satisfied with the additional dowry given to A1, subjected the deceased to harassment, as a result, the deceased herself resorted to commit suicide. PW10, A.S.I., II Town Police Station, Mahaboobnagar, except stating as to the registration of crime and filing the charge sheet, he did not state anything else. PW11, Civil Assistant Surgeon, District Government Hospital, Mahaboobnagar, deposed that he conducted post-mortem examination over the dead body of the deceased and found superficial burns all over the body including soles and genitalia present. He opined that the deceased received 100% burns and the cause of the death is due to the burns and shock. CW1, the Special Judicial First Class Magistrate, deposed that on receiving requisition from II Town P.S. Mahaboobnagar along with medical intimation, he recorded dying declaration of Samyuktha with the help of a duty doctor at casualty ward. He deposed that the patient was in a fit state of mind while giving her statement, and he recorded it and obtained her left thumb impression on the dying declaration, which is marked as Ex.C3. He further deposed that the victim stated that her saree caught fire when it fell on the gas stove. Heard the learned counsel for the appellant, the learned Assistant Public Prosecutor for the State appearing on behalf of the respondent and perused the material placed on record. The learned counsel for the appellant submits that the ingredients of Section 304-B IPC are not made out, and no harassment was meted out to the deceased by A1 soon before her death, and the demand of money by the accused for domestic needs does not come under the purview of dowry unless followed by an element of cruelty or harassment. Per contra, the learned Assistant Public Prosecutor, contended that the incident occurred at the house of A1 when A1 and the deceased were only present at that time. He relied on the evidence of PW7 – owner of the house in that regard. He further contended that the evidence of PWs.1 and 2 is consistent and corroborated with the testimony of PWs.5 and 6 that there was demand of dowry and harassment on the part of the appellant-A1 till the date of the incident. A1 is the husband of Samyuktha-deceased, A2 and A3 are her in-laws. A4 is her brother-in-law, whereas, A5 is the brother of the husband of A1’s sister. The trial Court, while convicting A1, relied on the evidence of PWs.1 to 6 as well as Ex.C3 – dying declaration of the deceased, and recorded that on the date of the incident i.e. on 12.08.2003, the deceased stated in her dying declaration that her saree fell on burning gas stove and caught fire, and her body was burnt due to catch of fire to the saree, and nobody was responsible. From a careful analysis of the evidence on record, it is obvious that the evidence of PWs.1 to 6 is not consistent and they only indulged in making bald allegations against all the accused of demanding additional dowry from the deceased and her parents, without furnishing details or particulars thereof. Even though the prosecution relied on the evidence of PW7, who was declared a hostile witness. That when he was subjected to cross-examination by defence, PW7 answered that when A1 tried to rescue the deceased from flames, he also received injuries, but there is no material on record to show that he tried to rescue his wife when she was in flames and that he also received injuries, as such, his evidence was discarded altogether by the trial Court. Of course, it is the evidence of PW1, father of the deceased, that 15 days after his visit to the place of the deceased, PW7 telephoned him informing that cylinder was burst in a portion of his house where the deceased was staying. The learned counsel for the appellant relied on a decision reported in Yellamanda Chand Basha and others Vs. State of Andhra Pradesh[1] wherein it was observed at paragraph No.8 to the following effect: “The ingredients that are required to be proved in a case under Section 304-B IPC were identified by the Hon’ble Supreme Court in M. Srinivasulu v. State of A.P., (2007 (2) ALD (Crl.) 883 (SC), and the following were enlisted: i) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance. ii) Such a death should have occurred within seven years of her marriage. iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband. iv) Such cruelty or harassment should be for or in connection with demand of dowry. v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death. The learned counsel further relied on a decision reported in Tarsem Singh Vs. State of Punjab[2] wherein the Apex Court observed in paragraph 16 as follows: “That no evidence was brought on record to show that the cruelty or harassment was meted out to her for bringing insufficient dowry, in absence whereof the ingredients of Section 304-B of the Indian Penal Code cannot be said to have been proved. The legal fiction sought to be created must be raised only on fulfillment of the conditions precedent therefor. All the requisite ingredients of the offence must be brought home before the presumptive evidence is put to use by the Court for holding the accused guilty of an offence under Section 304-B IPC.” However, the trial Court appears to have lost site of the striking part of the evidence of PWs.1 and 7. PW1 stated that he was informed by PW7, who is residing in another portion of his house, that the incident occurred due to cylinder burst in the house. PW7 also testified that on the fateful day, at the relevant time, when he was performing pooja in the house, he heard a big sound in the portion where the deceased and A1 were living, and immediately, he came out and saw A1 standing at the door while the deceased was burning inside. It is conspicuous from his evidence that the big sound refers to the cylinder burst only, and it cannot be anything else. Moreover, this Court finds considerable force in the arguments put forth by the learned counsel for the appellant that none of the witnesses for the prosecution except making bald allegations, have spoken as to the specific instances of A1 demanding additional dowry or any of the accused. It is also pertinent to observe that the deceased has clearly stated in Ex.C3 – Dying declaration that she caught fire accidentally while she was in the kitchen. When somebody or something is caught fire unexpectedly, there is every likelihood of the flames spreading over the area and bursting of cylinder. Probably, the bursting of cylinder might have been heard by PW7 as stated in his evidence. His evidence was fortified by Ex.C3 – dying declaration. The dying declaration of the deceased is worth believing inasmuch as it is clear from the evidence of CW1 – Judicial Magistrate of First Class, Mahaboobnagar that the deceased was in a fit condition while making her dying declaration. Therefore, no presumption in this regard leading to conviction of A1 can be drawn by the trial Court. It does not appear from any of the prosecution witnesses that the deceased was subjected to cruelty and the same continued by A1 till her death. Therefore, it cannot be said that the ingredients of Section 304-B IPC are complied with. Therefore, the trial Court appears to have misled and misguided itself in coming to the conclusion that the prosecution succeeded in bringing home the guilt of A1 while acquitting the other accused. The trial Court committed an error apparent on the face of the record for drawing such an inference in convicting the appellant of the alleged offences. Hence, in my considered opinion, the contentions put forth by the learned counsel for the appellant-A1 are sustainable and the impugned judgment is liable to be set aside. In the result, the Criminal Appeal is allowed setting aside the conviction and sentenced imposed on the appellant-A1 in judgment dated 12.01.2006 delivered in S.C. No. 97 of 2004 on the file of the Assistant Sessions Judge, Mahaboobnagar. The bail bonds of the appellant-A1 shall stand cancelled. _________________ B.N. RAO NALLA, J 9th July, 2010 bcj [1] 2008 (1) ALD (Crl.) 809 (A.P) [2] 2009(1) ALD (Crl.) 252 (SC)