JUDGMENT

1. Criminal Appeal No. 774 of 1991 has been filed by the State through the learned Public Prosecutor being aggrieved by the order of acquittal of A-2, recorded by the learned Assistant Sessions Judge, Gadwal of Mahaboobnagar District in SC No. 71 of 1989 on his file. In the very same case, A-1 was convicted for an offence punishable under section 304-B of the Indian Penal Code and was sentenced to suffer rigorous imprisonment for 7 years. Being aggrieved by the said conviction and sentence recorded against A-1, A-1 filed Criminal Appeal No. 4 of 1990 on the file of the Sessions Judge, Mahaboobnagar.

2. On filing of the appeal against the order of acquittal by the State in this court, the appeal, viz., Crl.A. No. 4 of 1990 filed by A-1 in the court of the Sessions Judge, Mahaboobnager, was got transferred to this court for being heard along with Criminal Appeal No. 774 of 1991. After transfer of Crl.A. No. 4 of 1990 to this court, it was renumbered as Tr. Criminal appeal no. 863 of 1992. Thus, both the appeals, viz., Criminal Appeal No. 774 of 1991 and Tr. Criminal Appeal no. 863 of 1992, arise out of one and the same Sessions Case, and so they are being disposed of by a common judgment.

3. Accused No. 1 and Accused No. 2, who are brother and sister, were prosecuted for an offence punishable under section 304-B of the Indian Penal Code read with section 34 of the Indian Penal Code, alleging that on 1st August, 1988, Monday, at about 11-00 a.m., A-1 quarrelled with his wife Lata bai (who will hereinafter be referred to as 'the deceased') and both the accused harassed and illtreated her for not getting the dowry and then strangled her to death in their house.

4. As per the version of the prosecution, the marriage between A-1 and the deceased was performed on 21-2-1988. The father of the deceased had agreed to pay a sum of Rs. 5,000/- in cash besides a gold ring, suit, and one saree worth Rs. 300/-. Though there was such an agreement, the father of the deceased could not secure the entire amount as agreed and therefore he paid only Rs. 4,000/- to A-1. After the marriage, the deceased went to the house of A-1 to stay along with him. After the marriage, only on two occasions she had visited the house of her parents. It is alleged by the prosecution that on none of those two occasions, she had complained to her parents regarding the alleged illtreatment and harassment by A-1 and A-2 on the ground of dowry.

5. P.W. 1 was informed that the deceased died because of suicide. Immediately he went to the said village along with his wife and saw the dead body of their young daughter. Thereupon, he filed a report with the police, which is produced on record at Ex. P. 1. Thus, on the strength of the first information, which was registered at the Police Station, the investigation proceeded and ultimately charge sheet was laid against the accused.

6. In order to connect the accused with the crime, the prosecution lead the evidence of P.Ws. 1 to 17 and got the documents Exs. P. 1. to P. 16 marked.

7. P.Ws. 3 to 11 turned hostile and they did not support the case of the prosecution.

8. The inquest over the dead body of the deceased was conducted by P.W. 12, the Mandal Revenue Officer, Manpad, by calling independent witnesses. The inquest report is produced on record at Ex. P. 12.

9. Postmortem over the dead body of the deceased was conducted by two doctors, P.Ws. 13 and 16 and they have produced the postmortem notes on record at Ex. P. 14.

10. P.W. 13 Women Assistant Surgeon, Government Civil Hospital, Alampur, deposed in her evidence given in court, that herself and P.W. 16 Civil Assistant Surgeon conducted postmortem examination on the deadbody of the deceased and they found the following injuries :-

1. The face is blue, swollen, eyes are protruded out, subconjunctival haemorrhage present in left eye. Tongue protruded blue, lips and gums are blue, lips swollen, bleeding through nose and mouth present.

2. Lagature mark present in front and upper part of neck extending on the back of neck up to middle on both sides, measuring 35 cm. x 2 cm. width. Mark is depressed, hard, red and parchament Neck is swollen below legature mark.

3. Abrasion present just above the legature mark measuring 11 x 2 1/2 cms. red in colour and hard.

4. Upper part of chest swollen. Both upper limbs are blue; veins are enlarged. Veins are enlarged in both lower limbs feet are blue.

On opening the neck, tissues are congested, muscles are congested, Thyroid cartilage is fractured on left super or arm. Thyroid cartilage is congested. Trachea is congested. Hyoid bone is not fractured.

P.W. 13 is of the opinion that the time of the death is between 24 to 48 hours and that the actual cause of death is asphyxia due to strangulation. The doctor P.W. 13 further stated in her evidence that the death of the deceased might also be possible by pressing the neck by some rope or cloth. However, the doctor confirmed that the death of the deceased might be homicidal. The postmortem notes issued by the doctor is produced on record at Ex. P. 14.

11. The doctor was not able to give definite opinion as to the cause of the death. She stated that the actual cause of death, to the best of her knowledge and belief, is asphyxia due to strangulation. Again the doctor stated that the death might also be possible by pressing the neck by some rope or cloth. Under these circumstances, the cause of the death of the deceased remained unsolved and, therefore, it appears that no charge was framed against the accused for the offence under section 302 of the Indian Penal Code. However, the fact remains that the death of the deceased is unnatural and that the deceased died within seven years of her marriage with the 1st accused.

12. On the point of illtreatment given to the deceased by A-1 and A-2, the prosecution relied upon the evidence of P.Ws. 1 and 2, who are father and mother respectively of the deceased. It is stated by P.W. 1 in his evidence that he had promised to give a sum of Rs. 5,000/-, by way of dowry, to A-1 but he could not collect the entire amount and therefore he paid only Rs. 4,000/- and promised to pay the balance of Rs. 1,000/- later on. He further deposed in his evidence that the accused did not make any grievance regarding the balance and he took away the newly married wife along with him. He further stated that on one occasion he himself had gone to the house of the 1st accused and that at the time of his visit he was given warm reception by the 1st accused. However, he has stated that his daughter had visited his house on two occasions and she had complained to him regarding the illtreatment given to her on account of non-payment of the balance of dowry. P.W. 1 further stated that accused No. 1 had written him a letter on one occasion that the deceased was suffering from fever and had requested him to take the deceased to his house. Thereupon, P.W. 1 had deputed his son to bring the deceased to their house. Even at that time the son of P.W. 1 was given proper treatment by A-1.

13. The prosecution has lead the evidence of P.W. 2, who happened to be the mother of the deceased. She has also stated in her evidence that on her visit to the house of A-1, she was also given warm reception.

14. Taking into consideration the evidence of both P.Ws. 1 and 2, I hold that there was no illtreatment or harassment by the accused at any point of time on the ground of non-payment of the balance of dowry. It is for the first time after the death of the deceased, P.Ws. 1 and 2 had come with the theory that A-1 used to illtreat and harass, the deceased demanding the balance of dowry.

15. Section 304-B of the Indian Penal Code defines "dowry death" as follows :-

"Section 304-B"

"(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise 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 with, 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 subsection, "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 be less than seven years but which may extend to imprisonment for life."

16. There is no doubt that the death of the deceased was caused within seven years of her marriage but there is no evidence on record to show that the deceased was subjected to cruelty or harassment by her husband, or relatives of her husband in connection with the demand for dowry and therefore the death or the deceased cannot be styled as "dowry death" within the meaning of Section 304-B(1) of the Indian Penal Code. The presumption under Section 113-B of the Indian Evidence Act arises if the deceased died within seven years of marriage. I have already stated in the foregoing para of this judgment that unless the specific harassment or illtreatment is proved, it is not sufficient to style any death as 'dowry death' though she died within seven years of the marriage.

17. It is brought out from the evidence on record that the deceased was not liking A-1. She was interested in getting married with some other boy. Therefore, she was not happy with the 1st accused. Ultimately it lead her to commit suicide. On this aspect, P.Ws. 3 and 5 have admitted in their cross-examination that whenever the deceased Lata used to come to their house, she used to tell them that she was given in marriage to A-1 against her will. This admission given by P.Ws. 3 and 5 is sufficient to say that A-1 was not liked by the deceased and therefore she had to commit suicide. On a careful consideration of the entire material on record, I hold that this is not a case of dowry death within the meaning of sub-section (1) of Section 304-B of the Indian Penal Code as no harassment or illtreatment is proved against the appellant-accused.

18. Criminal Appeal No. 774 of 1991 is filed by the State challenging the acquittal of A-2. On a reading of the entire evidence on record, I find no allegation of either illtreatment or harassment against A-2 in connection with the demand for dowry. Therefore, the order of acquittal recorded by the learned Assistant Sessions Judge is perfectly justified and does not call for interference.

19. As far as the appeal preferred by A-1 is concerned, I have already assigned reasons in the foregoing paragraphs of my judgment that there is no harassment or illtreatment given by A-1 to the deceased in connection with any demand of dowry. She appears to have committed suicide as she did not like A-1. The prosecution has failed to bring home the guilt of A-1 also for the offence under section 304-B of the Indian Penal Code beyond reasonable doubt.

20. Criminal Appeal No. 774 of 1991, preferred by the State is dismissed. Tr. Criminal Appeal no. 863 of 1992, preferred by A-1, is allowed and the order of conviction and sentence recorded against A-1 is set aside. A-1 is acquitted of the charge under Section 304-B of the Indian Penal Code. The bail bond executed by A-1 stands cancalled.

21. Order accordingly.