P. S. NARAYANA, J. ( 1 ) HEARD Sri Padmanabha Reddy, learned senior counsel representing the appellants (A-1 to A-4), and the learned Additional Public prosecutor. ( 2 ) THE appellants-accused preferred the present criminal appeal aggrieved by the judgment, dated 23-09-1998, made in s. C. No. 98 of 1995 on the file of the Assistant sessions Judge, Suryapet. ( 3 ) THE case of the prosecution is that A-2 and A-3 are the parents and A-4 is the brother of A-1, and the deceased-Jayaprada was the wife of A-1. P. Ws. 1 and 2 are the parents and P. W. 5 is the sister of the deceased. P. Ws. 3 and 4 are the co-brother and uncle of P. W. 1. It is stated that the marriage between A-1 and the deceased had taken place on 02-06-1993. At the time of marriage, P. W. 1 paid a sum rs. 60,000/- to A-1, towards dowry, as agreed in the settlement, prior to the marriage, and after marriage, A-1 demanded the parents of the deceased to purchase a Hero honda Motor Cycle and then, P. W. 1 paid rs. 30,0007- to A-1 for purchasing the same. Thereafter, P. W. 1 also gave Television, decollem cot and other articles. When p. Ws. 1 and 2 went to the house of the accused to bring the deceased for Deepavali festival, the accused demanded one tula of gold, and P. W. 1 stated that he would give cash of Rs, 5,000/-, instead of gold, as demanded by him, and sent the same through p. W. 3. But, the accused refused to receive it, insisting for gold. P. W. 5, who was pregnant, was admitted in the Nursing Home of dr. Krishna Kumari in K. K. Road, and gave birth to a male child in the hospital on 2-4-1994. Then, P. W. 2 went to the house of the accused and brought the deceased along with her to the hospital after obtaining permission of the accused. On 02-04-1994. P. W. 5 was not discharged from the hospital, as she was advised to continue to be in the hospital on that day, and on the next day she was discharged. On the night of 02-04-1994, p. Ws. On 02-04-1994. P. W. 5 was not discharged from the hospital, as she was advised to continue to be in the hospital on that day, and on the next day she was discharged. On the night of 02-04-1994, p. Ws. 1 and 2 and the deceased could not go to their place-Arvapally, since it became late in the night, and so, they went to the house of p. W. 3, stayed there for that night, and on the next day, all of them along with P. W. 5, who was discharged from the hospital, went to arvapally. The deceased stayed in the house of her parents till 15-04-1994. During her stay, it is stated that the deceased informed her parents and also her sister P. W. 5 about the ill-treatment and harassment for additional dowry made by the accused. On 16-04-1994, A-3 the mother-in-law of the deceased came to the house of P . W. 1, to take the deceased to her house. While leaving the house along with the deceased, she demanded the parents of the deceased for gold. On 17-4-1994, P. W. 1 received information that the deceased had been admitted in the Government Hospital, suryapet, with burn injuries. P. W. 1 rushed to the hospital and reached there by 9 a. m. By then, P. W. 10 the then Judicial First Class magistrate, Suryapet, had recorded the Dying declaration of the deceased, on requisition from the Medical Officer of the Hospital. P. Ws. 3 and 4 also rushed to the hospital on coming to know about the admission of the deceased in the hospital. P. W. 1 went to police station and lodged a complaint. P. W. 12 received the same and registered a case in Cr. No. 72 of 1994. Further, P. W. 11 had taken up the investigation and recorded the statements of P. Ws. 1 to 3 and Arruri laxmi (L. W. 4 ). P. W. 1 went to police station and lodged a complaint. P. W. 12 received the same and registered a case in Cr. No. 72 of 1994. Further, P. W. 11 had taken up the investigation and recorded the statements of P. Ws. 1 to 3 and Arruri laxmi (L. W. 4 ). He visited the scene of offene and prepared observation panchanama in the presence of P. W. 7 and also one s. Nageshwar Rao (L. W. 9) and seized m. O. 1 burnt door curtain pieces; M. O. 2 partly burnt blouse pieces; M. O. 3 partly burnt white silk saree pieces; M. O. 4 broken bangle pieces; M. O. 5 left leg rubber slipper of the deceased; M. O. 6 plastic can; M. O. 7 sun flower match box; M. O. 8 burnt hair from the scene under cover of panchanama, in the presence of the same panch witnesses. He held inquest over the dead body of the deceased in the presence of P. W. 6 and also one K. Yadagiri (L. W. 10), and sent the dead body for post-mortem examination. P. Ws. 9 and 14 conducted autopsy over the dead body of the deceased and opined that the death of the deceased was due to 100% burn injuries. P. W. 13 had taken up further investigation on 22-04-1994, and on 23-04-1994, he visited Arvapally and recorded the statements of P. Ws. 4 and 5. On 25-04-1994, at 5 p. m. , he arrested A-1, a-2 and A-4 at their house and sent them to judicial remand. A-3 surrendered herself before the Sessions Court, Nalgonda; obtained anticipatory bail, and she was released. P. W. 1 3 filed the charge-sheet after collecting medical reports. ( 4 ) ON appearance of the accused before the Court of Judicial First Class Magistrate, suryapet, and after completing necessary legal formalities, the matter was committed to the Court of Sessions and the Court of sessions, in turn, had made over the same to the learned Assistant Sessions Judge, suryapet. The learned Assistant Sessions judge, recorded the evidence of P. Ws. 1 to 14, and D. W. 1 B. Ravindra Babu, Judicial first Class Magistrate, Nalgonda, who recorded the declaration of A-2, and also marked Exs. P-1 to P-10 and Exs. D-1 and d-2, respectively and M. Os. The learned Assistant Sessions judge, recorded the evidence of P. Ws. 1 to 14, and D. W. 1 B. Ravindra Babu, Judicial first Class Magistrate, Nalgonda, who recorded the declaration of A-2, and also marked Exs. P-1 to P-10 and Exs. D-1 and d-2, respectively and M. Os. 1 to 8, and ultimately, arrived at the conclusion that the guilt, as against the accused, had been proved beyond ail reasonable doubt and accordingly, convicted and sentenced them to undergo imprisonment apart from imposing fine. Questioning the same, the present criminal appeal is preferred. ( 5 ) SRI Padmanabha Reddy, learned Senior counsel representing the appellants, had taken this Court through the evidence of p . W. 2, who was cross-examined to some extent, and whose evidence was deferred, and ultimately, eschewed from consideration at the instance of the prosecution, and would contend that inasmuch as P. W. 2 was substantially cross-examined and a favourable answer that the accused and deceased first decided to marry, had been elicited in the cross-examination of P. W. 2, the prosecution conveniently had made an application to expunge the evidence of p. W. 2 from being considered, which is not permissible in law. The learned counsel also had placed strong reliance on an English decision in R. v. Stretton and also had drawn the attention of the Court to a passage from murphy on Evidence by Peter Murphy, 5th edition at page 468. The learned counsel would submit that this is not a case where the chief-examination of P. W. 2 alone was recorded and that was substantially completed; since she was crying subsequently, she was not further cross- examined, and on that ground, the favourable portion of the evidence of P. W. 2 definitely, cannot be eschewed from consideration, since it would cause prejudice to the accused. The learned counsel also would further contend that the evidence of P. W. 1, P. W. 3 and P. W. 4 is vague. It is also doubtful whether Ex. P-1, the report, alleged to have been drafted by P. W. 1, is the same one, or the same had been replaced, since P. W. 4 deposed that Ex. P-1 is not the report drafted by him. The learned counsel would further submit that even as per Ex. It is also doubtful whether Ex. P-1, the report, alleged to have been drafted by P. W. 1, is the same one, or the same had been replaced, since P. W. 4 deposed that Ex. P-1 is not the report drafted by him. The learned counsel would further submit that even as per Ex. P-1 and also the evidence of P. W. 1, it is the tradition in the vishwabrahmina community, to give some presents to the daughters by parents, during festival days. That is the reason why, though an amount of Rs. 5,000/- had been sent, the family members of the accused were not inclined to receive the same, since receipt of cash is not customary, but receipt of present in the form of some gold alone is the tradition or customary practice in Vishvabrahmina community. The learned counsel also had drawn the attention of this Court to a judgment of the Supreme Court in Reema Aggarwal v. Anupam, in this regard. The learned counsel would further submit that in Ex. P-7 Dying declaration, which was made by the deceased, relating to the cause of death, nothing had been stated in this regard. The learned counsel also had pointed out that ex. D-2, which was marked through D. W. 1, a declaration made by A-1, who had also received burn injuries, would definitely goes to show that A-1 made an attempt to save the life of his wife, and during such course, he had also sustained burn injuries; this would point out. the innocence of the accused and definitely would not point out the guilt of the accused. The learned counsel also had taken this Court meticulously through the complete evidence available on record and would conclude by submitting that the imposition of fine under Section 304-B I. P. C. is impermissible in law, and that even the sentence of imprisonment imposed, dividing the same into simple imprisonment and also rigorous imprisonment, appears to be a peculiar feature in the present case. ( 6 ) THE learned Additional Public prosecutor, on the contrary, had placed strong reliance upon the judgment in Ramesh Kumar v. State of Chattisgarh and would submit that though it may not be a case attracting section 304-B I. P. C. , as such, definitely it is a case that would fall under Section 498-A i. P. C. , since there is clear evidence, relating to demand of one tula of gold, and that the witnesses consistently had spoken about the same. Further, the learned counsel while elaborating the submissions about the evidence of P. W. 2 would contend that the examination of P. W. 2 was not completed. The English decisions (referred to supra), at the best, may be only of persuasive value and that they are not binding on the Indian courts. The learned Counsel also would submit that, at any rate, in view of the incapacity on the part of P. W. 2 to be further cross-examined, and when the further cross- examination of P. W. 2 was deferred, the defence counsel could have taken steps for bringing that witness before the Court, and having not taken any steps in that regard, raising a contention before this Court that prejudice had been caused to the accused, because of the expunging or eschewing the evidence of P. W. 2, in toto, by the learned judge, definitely cannot be sustained. The learned counsel also submitted that from the date of marriage, within 11 months, the incident happened, and hence, the presumption that it would have been only dowry death, also is available in favour of the prosecution. The learned counsel also had taken this Court through the evidence available on record in detail. ( 7 ) AT the outset, it may be appropriate to have a look at Ex. P-1 complaint, given by p. W. 1, which reads as hereunder,-"i. Ragi Some Bramha Chari, S/o. Veera somaiah, aged, 40 yeas, R/oarvapally, mandal, Arvapally, submit that my second daughter Jayaprada was given in marriage to Togati Murali, s/o. Ananthachari, aged,26 years, and performed marriage 8 months back. As per his demand paid an amount of rs. 60,000/- towards dowry, thereafter due to harassment paid Rs. 30,000/- to purchase Hero Honda from the date ot marriage his daughter never seen happily. As per his demand paid an amount of rs. 60,000/- towards dowry, thereafter due to harassment paid Rs. 30,000/- to purchase Hero Honda from the date ot marriage his daughter never seen happily. When enquired for the reason she disclosed that for every petty matter they subjected cruelty physically and mentally towards her. For which gave, t. V. and Double Cot with beds. As per the tradition in connection with deepavali festival demanded for one tula gold. The cost of gold Rs. 5,000/- was given through my co-brother. But refused to take net cash and returned back. On 16-04-1994, Saturday, at about 4 p. m. mother-in-law of my daughter came to my house to take my daughter. While, taking my daughter she asked to give the gold. Then, I said that you took? my daughter and the amount is at Suryapet and tomorrow, I will come and give cash or gold. Today, i. e. , 17-04-1994 at 4 p. m. my daughter s husband, mother-in-law, father-in-law and brother Srinivas pored kerosene on my daughter and set fire. On coming to know the fact came in the morning. My daughter was on the death bed in the hospital. At about 11 a. m. she died, and requested to take action against the persons responsible for the death of my daughter. " ( 8 ) IN the First Information Report, it is specifically stated by P. W. 1 that as per the tradition in connection with Deepavali festival, the accused demanded one tula of gold. It was also stated that the cost of one tula of gold Rs. 5,000/-, was given through his co- brother, but the accused refused to take cash and returned the same Hence, the earliest version, as stated in Ex. P-1, which is the crux of the version of the prosecution, would definitely assume significance. The charge framed is as hereunder,"that you A-1 T. Murali, A-2 T. Anantha chary, A-3 T. Rukminamma and A-4 t. Srinivasa Chary of Suryapet town on or about 17th day of April, 1994 at Golla bazar, Suryapet town caused the death to Thogeii Jayapradha, W/o. Muraii (A-1), aged, 19 years, within seven years of her marriage before her death by subjecting her to cruelty and harassed her in connection with your demand of dowry and that you thereby committed an offence punishable u/s. 304 (B) I. P. C. , and within my cognizance. " ( 9 ) P. W. 1 deposed that his second daughter is Jayaprada and A-1 got married heron 02-06-1993 at Arvapally. Atthe time of marriage, he gave Rs. 60,000/-, towards dowry, and Rs. 30,000/- towards motorcycle, and thereafter, he also gave one T. V. , decolum cot and other small articles. After marriage, they lived together happily for one or two months, and thereafter, his daughter informed them that her husband started harassing her by demanding money, as he wants to purchase iron safe and gold. It is no doubt true that there is some evidence available on record relating to the settlement of marriage and some agreement relating to giving of Rs. 60,000/-, towards dowry, and other aspects. But, it is pertinent to note that the specific case of the prosecution is that the death of the deceased is the result of non- fulfilling the demand of one tula gold made by the accused. At this stage itself, it is pertinent to note that it is in the evidence of P. W. 1 that when cash was sent, the same was refused insisting only for gold. No doubt, P. W. 1 further deposed in detail about several other aspects, stating that on the information given to them, they had cone to the Government hospital, Suryapet, where his daughter was in serious condition, and that at about 11 a. m. , on the same day, he went to police station and gave Ex. P-1 complaint. The contents of Ex. P-1 already had referred to supra. Here itself, it may be stated that it is the version of the prosecution that P. W. 1 had drafted Ex. P-1, but whereas in cross- examination this witness deposed that ex. P-1 is not the report drafted by him. Hence, it is doubtful whether the same ex. P-1 is the report, or whether any other report had been there, or subsequent thereto, the present report Ex. P-1 had been replaced. It is needless to say that it is for the prosecution to explain. P. W. 1 was cross-examined, at length, relating to several details to his family and the affairs of the family. He had deposed that on 17-04-1994 he received a phone call from one Ramesh, friend of A-1, intimating about the burning incident of his daughter. It is needless to say that it is for the prosecution to explain. P. W. 1 was cross-examined, at length, relating to several details to his family and the affairs of the family. He had deposed that on 17-04-1994 he received a phone call from one Ramesh, friend of A-1, intimating about the burning incident of his daughter. By the time when he reached at Suryapet, his daughter was in the Government Hospital and was alive. Till that time, no police personnel came to the hospital. P. W. 1, his maternal uncle-Someshwara Chary, along with one Somireddy, went to the D. S. P. , and informed him about the incident. The D. S. P. , did not record his statement, but immediately followed him to the hospital. Though the d. S. P. wanted to record the statement of the deceased, it was informed that already the magistrate has recorded her statement and thereafter she died. Immediately after her death, P. W. 1 lodged a complaint. This witness also deposed that at about 11. 30 or 12 noon, police came to the Hospital and recorded his statement. The D. S. P. , C. I. of police and S. I. were present, but he did not remember, who recorded his statement. Along with him, his maternal uncle- someshwara Chary, his co-brother- venkateshwarlu, his wife and his brother-in- law apart from some other villagers were present at that time. This witness also deposed that he might not have stated in his statement that he had send Rs. 5,000/- at the time of Deepavali festival. But, in fact, he sent the money to Ugadi festival No doubt, there is some controversy and confusion, since certain other witnesses also spoken in the same fashion, but this may (?) alter the situation in any way. P. W. 1 further deposed that a friend of A-1 telephoned to them to the telephone of Srinivas at their village, and that he did not tell the police that he received a telephone call from the friend of A-1 and thereon he came to the hospital. This witness also deposed that it is not true to suggest that the match of his daughter was not settled through Someshwara Chary with A-1, and that the marriage of his daughter took place, after A-1 and his daughter got acquainted with each other. Several other suggestions have also been denied. This witness also deposed that it is not true to suggest that the match of his daughter was not settled through Someshwara Chary with A-1, and that the marriage of his daughter took place, after A-1 and his daughter got acquainted with each other. Several other suggestions have also been denied. When there was a question by the Court, P. W. 1 deposed thatat the instance of the accused, his daughter- deceased-Jayaprada stated before the magistrate that she burnt herself by setting fire with kerosene, as the accused threatened her. Certain submissions, at length, were made on the strength of this answer, most probably to explain the Dying Declaration. ( 10 ) P. W. 2 is the mother of the deceased. In her cross-examination this witness admitted that it is true that A-1 and deceased first decided to marry, and thereafter, they had celebrated the marriage. No doubt, she had denied certain suggestions. It was recorded by the Court that "the witness was crying for some time, while giving deposition and expressed her inability and that she is unable to give evidence and thereafter her evidence is deferred. " ( 11 ) SUBSEQUENT thereto, this witness was not examined at all. It appears from the record that the learned Additional Public prosecutor filed an application to expunge her evidence, brought on record, as she could not be produced forfurtherexamination, and the said application was allowed. In this regard, the learned Judge also had recorded a finding that the evidence of P. W. 2 on record stood eschewed. This is the aspect on which submissions at length were made by both the learned counsel. It is no doubt true that she made an admission stating that A-1 and the deceased first decided to marry, and thereafter, the marriage was celebrated. The learned Senior Counsel advanced submissions to the effect that this would definitely negative the version of the prosecution that there was harassment, in relation to dowry and that it had resulted in the death of the deceased. ( 12 ) THE question now is whether the evidence of P. W. 2, which cannot be said to be a complete evidence or a complete deposition of a witness, can be taken into consideration or not? ( 12 ) THE question now is whether the evidence of P. W. 2, which cannot be said to be a complete evidence or a complete deposition of a witness, can be taken into consideration or not? However, despite the fact that the further cross-examination was deferred, subsequent thereto, no steps were taken by either of the parties, the prosecution or the defence, to get the witness before the court, whether the evidence of a particular witness, whose deposition is not complete, can such incomplete deposition be relied upon by the Court? ( 13 ) IN Gopal Saran v. Satyanarayana, the Apex Court while dealing with sections 137 and 138 of the Indian Evidence act, 1872, held that when a party is not submitting himself to cross-examine, in spite of the order of the Court, it is not safe to rely on his examination-in-chief. No doubt, in the present case, P. W. 2 was cross-examined to some extent, but inasmuch as P. W. 2 was crying and was unable to depose, her evidence was deferred. It is not in controversy that neither of the parties had taken any steps to secure the presence of this witness. ( 14 ) IN this context, the learned Senior counsel, Sri Padmanabha Reddy, placed strong reliance on the observations made in ft. v. Stretton s case (1 supra), and the relevant portion is extracted hereunder,"the complaint in a case of attempted rape gave evidence in-chief and was cross-examined on behalf of the accused for a period of three and a half of hours over two separate days, restricted sessions being necessary because of her medical condition, but cross-examination had not been concluded . Afterthis, she became too ill for further cross-examination. The accused asked the Judge to rule that the trial could not continue, since they had been deprived of the opportunity to conclude the cross-examination of the complainant. The Judge permitted the trial to proceed and warned the jury to bear in mind the fact that the complainant had not been fully cross-examined. The accused were convicted. On appeal, the Court of Appeal held that the Judge had exercised his discretion correctly, in view of the length of the cross- examination that had been possible and in view or the ciear warning he had given to the jury. The accused were convicted. On appeal, the Court of Appeal held that the Judge had exercised his discretion correctly, in view of the length of the cross- examination that had been possible and in view or the ciear warning he had given to the jury. It is not difficult to sympathise with the trial Judge, in a case where there was evidently some doubt whether the complainant would be able to testify in a subsequent trial, so that discharging the jury might have been the equivalent of directing a verdict of not guilty. There will be cases where the facts dictate a different exercise of discretion. " ( 15 ) ON the strength of this English decision, it was submitted that inasmuch as P. W. 2 was cross-examined substantially, the eschewing of evidence of this witness, in toto, would cause prejudice to the accused, and hence, the same has to be taken into consideration. It is needless to say that English decisions are of only persuasive value and they are not binding on the Indian Courts. ( 16 ) IN the light of different provisions of the Indian Evidence Act, 1872 (for short "the act"), this Court is of the considered opinion that unless the evidence of a particular witness is complete, even at the stage of further cross-examination, if the further examination of the witness had been deferred, and subsequently, the witness was not produced, and inasmuch as it is not complete deposition of the witness, the same cannot be taken into consideration, and hence, the learned Judge is justified in eschewing the evidence of p. W. 2 from being considered. No other interpretation would be possible in this regard in the light of the different provisions of the act. ( 17 ) P. W. 3 had deposed that P. W. 2 Is his wife s sister and P. W. 11s his co-brother. He further deposed about the payment of certain amounts, and also of the accused demanding one tula of gold and offering cash of rs. 5,000/- to the accused. No doubt, P. W. 3 deposed that some oral dying declaration was made to him by the deceased. He further deposed about the payment of certain amounts, and also of the accused demanding one tula of gold and offering cash of rs. 5,000/- to the accused. No doubt, P. W. 3 deposed that some oral dying declaration was made to him by the deceased. He deposed that when F. W. 3 and his wife went to see the deceased they found the deceased with injuries all over her body and she told him that for money, a quarrel took place on the previous night, and then, she poured kerosene on herself, set fire and died at about 11. 00 a. m. This witness was cross- examined, at length, and certain questions were put even oy the Court. ( 18 ) THE learned Additional Public proscuior placed reliance on this oral dying declaration, alleged to have been made by the deceased, and would submit that in the light of the same, it should be taken that ex. P-7 was made by the deceased only under the threats made by A-1 and nothing more. ( 19 ) THE next witness is P. W. 4, who had deposed that A-1 was known to him through his friend-Ramesh, who practices as an advocate, and after some time, he came to know that A-1 also belongs to his caste, and that they had settled the marriage. No doubt, he deposed about the payment of amount towards dowry and certain other articles. This witness was also specifically deposed that when Jayaprada s father came to take jayapradafrom the house of A-1, they refused to send her, unless they were given one tula of gold. Then, P. W. 1 sent a cash of rs. 5,000/- through P. W. 3 and they refused to receive the amount and that they demanded gold of one-tula. This witness was no doubt cross-examined at length, and as already referred to supra, it is said that he had drafted ex. P-1, but in his cross-examination, he deposed that Ex. P-1 is not the report drafted by him. Thus, there is some suspicion as to whether Ex. P-1, is the same report which was produced before the Court and which had been drafted by this witness. ( 20 ) P. W. 5 is the elder sister of Jayaprada and no doubt she had deposed about all the details. P-1 is not the report drafted by him. Thus, there is some suspicion as to whether Ex. P-1, is the same report which was produced before the Court and which had been drafted by this witness. ( 20 ) P. W. 5 is the elder sister of Jayaprada and no doubt she had deposed about all the details. The complete evidence of this witness almost appears to be what she came to know through others, and therefore, it is needless to say that it is nothing but hearsay. ( 21 ) P. W. 6 is the panch witness to the inquest panchanama conducted over the dead body of the deceased-Jayaprada. This witness deposed that there are burn injuries and signs on the body of Jayaprada. K, Yadagiri and Saroja were also present at the time of inquest panchanama and he had signed on panchamana Ex. P-2, and that the panchas opined that the cause of death was due to burn injuries. This witness was also cross-examined. ( 22 ) P. W. 7 is another witness. He is a retired teacher, and he was declared as hostile, since he deposed that he does not know the contents of panchanama and that the police obtained his signature on a white paper. ( 23 ) P. W. 8 is a photographer, who had taken Ex. P-4 (4 photographs and 4 negatives ). In cross-examination, he deposed that the photographs did not contain the name of photo studio and other particulars. ( 24 ) P. W. 9 is the Medical Officer, who deposed that on 17-04-1994 at 2. 00 p. m. , he received a requisition from the Police Station, suryapet, to conduct autopsy over the dead body of Jayaprada. This witness and dr. Srinivasalu, conducted autopsy over the dead body of the deceased at 2. 30 p. m. , and opined that the cause of the death of the deceased was 100% ante-mortem burns, leading to shock and death. Post-mortem report was marked as Ex. P-5, and in cross- examination he deposed that he does not remember, as to whether the deceased was admitted In the hospital with burns and whether A-1 was also received burns and admitted in hospital, and that he cannot say, unless he goes through the records of the hospital. Post-mortem report was marked as Ex. P-5, and in cross- examination he deposed that he does not remember, as to whether the deceased was admitted In the hospital with burns and whether A-1 was also received burns and admitted in hospital, and that he cannot say, unless he goes through the records of the hospital. ( 25 ) P. W. 10 is the XI Metropolitan magistrate, Secunderabad, who worked as district Munsif at the relevant point of time. On 17-04-1994 at 6. 30 a. m. he received requisition from the Medical Officer, government Hospital, Suryapet, to record dying declaration of Jayaprada and he went to the hospital and recorded dying declaration of Jayaprada. He had taken all precautionary measures before recording the dying declaration, and after satisfying himself, he recorded that the deponent is in fit condition to give statement. The duty Medleal Officer was present throughout recording of the dying declaration and made an endorsement that the deponent is in fit condition to give statement. The deponent stated while deposing that 10 days prior to the incident, she went to her maternal aunt s house and for that her husband objected, due to that, she poured kerosene on herself and set fire. Ex. P-6 is the requisition; Ex. P-7 is the dying declaration and Ex. P-8 is the endorsement of the Medical Officer. ( 26 ) AT this stage, it is pertinent to have a look at Ex. P-7. The relevant portion reads as herunder,"i am the Magistrate, if you state what was happened I will record. Ans, Ten days back I went to the house of my maternal aunt. For which my husband become angry on me. I asked my husband to forgive. But my husband stated that he will not excuse and stated to go to my house. For that, I poured kerosene on my body and blazed myself. This is occurred. " ( 27 ) P. W. 11 is the Assistant Commissioner of Police, Special Investigating Team, hyderabad. He had deposed that S. I. of suryapet Police Station, registered a case in cr. No. 72 of 1994 under Section 304-B, I. P. C. , on the complaint made by P. W. 1 and issued f. I. R. , and that he can identify his signature made in the F. I. R. Ex. He had deposed that S. I. of suryapet Police Station, registered a case in cr. No. 72 of 1994 under Section 304-B, I. P. C. , on the complaint made by P. W. 1 and issued f. I. R. , and that he can identify his signature made in the F. I. R. Ex. P-9 is the original f. I. R. After issuing F. I. R. , the case file was handed over to him, and for investigation, he had gone to the Government Hospital on 17-05-1994 at about 11. 10 a. m. , and that he saw the dead body of the deceased- jayaprada in the hospital. He examined p. Ws. 1 to 3 and wife of P. W. 3, in the hospital. He secured the presence of Kppoju yadagiri, P. W. 6 and K. Saroja and conducted inquest over the dead body of the deceased- jayaprada in the hospital. Ex. P-2 is the inquest panchanama. The dead body of the deceased was sent for post-mortem examination. After conducting the postmortem, the body was handed over to the parents of the deceased. Before the dead body was sent for post-mortem examination, it was photographed. Ex. P-4 contains photographs and negatives. On the same day, at about 4. 30 p. m. , he visited the scene of offence and secured the presence of two panchas, namely, P. W. 7 and one Nageswara rao, and conducted scene of offence panchanama. Ex. P-10is the scene of offence panchanama. He seized burnt pieces of curtain cloth; burnt saree pieces; broken bangles; burnt left leg slipper; one plastic can with white lid, containing kerosene, and also burnt hair under Ex. P-10. (Property not produced ). He obtained the signatures of panchas at the scene of offence on Ex. P-10, and he also visited A-1, where he was in the hospital with burn injuries to his hands. A-1 was referred to Osmania Hospital for treatment. A-2 to A-4 were absconding during his investigation. He handed over the case to laxmi Reddy, S. D. P. O. , for further investigation, on 22-04-1997. This witness was cross-examined at length. In his cross- examination, this witness deposed that p. W. 1 did not state that his son-in-law asked one tula of gold and then he promised to give. He did not state about A-1 demanding money or gold, in any statement. This witness was cross-examined at length. In his cross- examination, this witness deposed that p. W. 1 did not state that his son-in-law asked one tula of gold and then he promised to give. He did not state about A-1 demanding money or gold, in any statement. This witness also deposed that P. W. 3 stated in his statement as in Ex. D-1, and P. W. 3 did not state in his statement about accused demanding one tula of gold for Ugadi festival. P. W. 3 did not state in his statement that he asked Jayaprada and she told him that due to harassment of accused for demand of dowry, she poured kerosene on her and set fire. This witness had well deposed in all other asperts also in the cross-examination. I deem it appropriate to have a look at the evidence of D. W. 1, who had recorded the declaration, which was marked as Ex. D-2. Therein, the question no. 10 may be relevant, which reads thus,"how your body burnt when and where and how burnt, tell me? ans, Three days prior to Ugadi my mother-in-law came and asked to take my wife to Ugadi, they are fromarvapalli. I stated them that she will be taken tomorrow. For which stated that there is work on tomorrow and she will be taken to-day only. My brother took a Rikshaw and sent them to Bus stand. Yesterday evening my wife came from the village. I asked her how was the journey and at what time reached your village? My wife stated that she has not gone to the village and stayed in her aunt s house. Then I have stated that why you have gone there. My wife stated that her mother took her. To-day at 5. 30 a. m. heard cries of my wife from the kitchen. When I reached there my wife was burning. I tried to put off fire and received burns to me. Nothing more to say. " ( 28 ) HENCE, while appreciating the material available on record, Ex. P-7, Dying declaration, made by the deceased and the statement recorded by P. W. 1, marked as ex. D-2, also may have to be carefully scrutinized. ( 29 ) P. W. 12 deposed that he worked as s. I. Suryapet, at the relevant point of time on 17-04-1994. He received complaint, Ex. P-7, Dying declaration, made by the deceased and the statement recorded by P. W. 1, marked as ex. D-2, also may have to be carefully scrutinized. ( 29 ) P. W. 12 deposed that he worked as s. I. Suryapet, at the relevant point of time on 17-04-1994. He received complaint, Ex. P-1, from P. W. 1 and registered a case in cr. No. 72 of 1994, under Section 304-B i. P. C. , and issued F. I. R. Ex. P-9, and handed over the case diary file to P. W. 11, for further investigation. ( 30 ) P. W. 13 is the D. S. P. (C. I. D.) City zone, Hyderabad, and priorto that, he worked as Sub-Divisional Police Officer, Suryapet. This witness deposed that on 22-04-1994, he took up further investigation in Cr. No. 72 of 1994, under Section 304-B I. P. C. On 23-04-1994, he visited Aravapalli, examined and recorded that statement of P. W. 5, and on the same day, he also examined and recorded the statement of P. W. 4 at Suryapet. He deputed one constable for apprehension of accused A-2 to A-4 and one reliable information, he arrested the accused A-1, a-2 and A-4, at their house, on 25-04-1994 at 5. 00 p. m. , and brought them to the Police station, Suryapet, at 5. 30 p. m. , and issued arrest card and made entries in the relevant records and handed over to Police Constable for safe custody. On 26-05-1994, theywere sent to judicial remand. A-3 surrendered before the District Court and obtained anticipatory bail. This witness also deposed that he collected medical certificate and filed charge-sheet against A-1 to A-4 for the offence punishable under Section 304-B i. P. C. , on 30-06-1994. This witness was cross-examined and deposed that he arrested a-1 in his house and it is not true to suggest that A-1 was in hospital on the date of his arrest, as shown by him, and he did not collect wound certificate of accused A-1. On the date of arrest, he observed that A-1 was having burn injuries on both hands, chest and abdomen, and he does not know about recording of statement of A-1 by the magistrate at Hyderabad, when he was in osmania General Hospital. On the date of arrest, he observed that A-1 was having burn injuries on both hands, chest and abdomen, and he does not know about recording of statement of A-1 by the magistrate at Hyderabad, when he was in osmania General Hospital. This witness also deposed that along with the deceased, accused was also admitted in the Hospital on 17-04-1994, and later, he was shifted to osmania General Hospital on the requisition of the Medical Officer, where he was provided escort. He did not make any efforts to verify the medical records as to whether A-1 sustained any burn injuries and what treatment he had undergone in the hospital. His investigation reveals that A-3 with the help of neighbours admitted the deceased and accused in hospital, Suryapet, and no doubt he had put suggestion that A-3 had lodged complaint stating that the deceased sustained burn injuries and the report was suppressed and the other suggestions also had been denied. ( 31 ) P. W. 14 is the Civil Assistant Surgeon, who gave requisition to P. W. 9, and this witness identified the Magistrate, who was recorded the dying declaration. He deposed that he made endorsement on the dying declaration about the mental condition of the patient. Ex. P-8 is endorsement made on the dying declaration. Ex. P-6 is the requisition given by him. Ex. P-7 is the dying declaration recorded by the Magistrate. As against this evidence, the evidence of D. W. 1 is available for the limited purpose of deposing about the recording of the statement of A-1, marked as ex. D-2, which had been already referred to supra. ( 32 ) ON the strength of this evidence, strong reliance was placed on the Judgment of the Apex Court in Ramesh Kumar s case (3 supra), and in the light of the facts of this decision, the learned Additional Public prosecutor would submit that though the ingredients of Section 304-B I. P. C. , are not satisfied the ingredients of Section 498-A i. P. C. , are definitely satisfied. ( 33 ) THE Apex Court in the above judgment no doubt on facts held that,"making the deceased free to go whoever she liked and to do whatever she wished, does not and cannot mean even by stretching that the accused had made the deceased free "to commit suicide" as held by the trial Court and upheld by the High Court and instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. In State of West Bengal v. Orilal Jaiswal and another- (1994) 1 SCC 73 , this court has cautioned that the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty. " ( 34 ) ON the strength of these facts, submissions at length were made. " ( 34 ) ON the strength of these facts, submissions at length were made. Whatever may be the evidence available on record, relating to what he had transpired at the time of marriage, the cause of death, according to the version of the prosecution, is the demand for one tula of gold, which P. W. 1 though requested for receiving the cash, it was refused by the accused which ultimately had resulted in the death of the deceased. ( 35 ) SECTION 304-B I. P. C. , reads as hereunder,"304-B. Dowry Death, (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. " ( 36 ) SECTION 2 of the Dowry Prohibition act, 1961, defines the dowry as hereunder,"2. Definition of "dowry", In this act, "dowry" means any property or valuable security given or agreed to be given either directly or indirectly (a) by one party to a marriage to the other party to the marriage; or (b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person;" ( 37 ) IT is needless to say that the imposition of fine in the present case cannot be sustained. In Ex. P-1 itself P. W. 1 stated that the demand was made by the accused for one tula of gold and no doubt instead of gold, cash of Rs. 5,000/-, was given through his co-brother, but the same was refused. It is not in controversy that the parties were belonging to Viswabrahmana community and professionally they are concerned with gold. The presents or the gifts, if any, voluntarily made by the parents out of love and affection, during the festival days, cannot have any stretch of imagination. 5,000/-, was given through his co-brother, but the same was refused. It is not in controversy that the parties were belonging to Viswabrahmana community and professionally they are concerned with gold. The presents or the gifts, if any, voluntarily made by the parents out of love and affection, during the festival days, cannot have any stretch of imagination. ( 38 ) IN Reema Aggarwal v. Anupam (2 supra), while dealing with a definition of dowry, the Apex Court held that,"dowry as a quid pro quofor marriage is prohibited and not the giving of traditional presents to the bride or the bridegroom by friends and relatives. Thus, voluntary presents given at or before or after the marriage to the bride or bridegroom, as the case may be, of a traditional nature, which are given not as a consideration for marriage but out of love, affection or regard, would not fall within the mischief of the expression "dowry" made punishable under the Dowry Act. " ( 39 ) APART from the dying declaration, ex. P-7, except the oral dying declaration alleged to have been made to P. W. 3, by the deceased, absolutely there is no other material. It is pertinent to note that when cash was sent and the same was not accepted, it clearly suggests the fact that traditionally in the community of Viswabrahmana, who are more concerned with the gold articles, they thought of having one tula gold as a present on the festival occasion, and nothing more and nothing beyond. On the strength of such evidence, to record a finding that the death had resulted due to such harassment, especially, when the dying declaration ex. P-7 clearly negatives the same, coupled with Ex. D-2, which was well spoken by d. W. 1, wherein. A-1 also sustained burn injuries in the course of his attempt to save the life of his wife. This Court had carefully scrutinized the findings recorded by the learned Judge and that independently the learned Judge was carried away by the portions of evidence. On the strength of which the conviction cannot be sustained. The episode does not stop there. The learned additional Public Prosecutor made a serious attempt, at least, to convince the Court that it is a fit case falling under Section 498-A I. P. C. though not under Section 304-B I. P. C. . On the strength of which the conviction cannot be sustained. The episode does not stop there. The learned additional Public Prosecutor made a serious attempt, at least, to convince the Court that it is a fit case falling under Section 498-A I. P. C. though not under Section 304-B I. P. C. . In the light of the scant evidence available especially in the light of Ex. P-7 and Ex. D-2 and in the light of the stand taken in the earliest point of time in Ex. P-1 that one tula of gold is something concerned with the tradition of the community, definitely the benefit may have to go to the accused only and not in favour of the prosecution. In the absence of proof, by placing reliance on the presumption of the prosecution, it cannot be said that the guilt of the accused is proved. ( 40 ) THIS Court is well satisfied that the prosecution definitely failed to prove the ingredients of either Section 304-B I. P. C. or section 498-A I. P. C. , in the alternative, as submitted by the Additional Public Prosecutor, and hence, this Court is of the considered opinion that the prosecution is bound to fail and the findings recorded by the learned judge are definitely unsustainable, in the light of the discussion supra. ( 41 ) EVEN after hearing about the quantum of sentence, what had been stated by the learned Judge appears to be a bit peculiar as already referred to supra. Section 304-B does not contemplate the imposition of fine at all, but fine also had been imposed and the imprisonment also had been divided into simple Imprisonment and Rigorous imprisonment. No doubt, these are all peculiarities, which are concerned with the imposition of sentence. ( 42 ) IN the light of the findings recorded above, the conviction and sentence imposed as against the appellants are here by set aside and the appellants-accused are set at liberty forthwith. The bail bonds shall stand cancelled. ( 43 ) ACCORDINGLY, the criminal appeal is allowed.