JUDGMENT : P.K. Tripathy, Adv. 1. Heard argument and the judgment is as follows: Manasi the wife of accused Umesh suffered death due to brain injury and in view of that accused Umesh and his mother Marua were charge--sheeted under the offence u/s 302/304-B/498-A/34 Indian Penal Code read with Section 4 of the Dowry Prohibition Act after the death of the deceased on 10.7.1998 while in hospital. Accused persons denied to the aforesaid charges and claimed for trial. 2. Kshetrabasi Mallick, P.W. 1 is the informant in the case, being the father of the deceased. He lodged the F.I.R (Ext. 1) with the allegations that though the marriage had taken place between the deceased and accused Umesh two years back (from the date of reporting) and at the time of marriage there was a demand of cash and articles and P.W. 1 had fulfilled some demand, except the demand of a bicycle by the accused and because of that the deceased was subjected to ill-treatment and cruelty by the accused and his family members and that on 9.7.1998, she was administered poison and ultimately the deceased died in the hospital. Both the husband and the mother-in-law of the deceased denied their presence in the house at the relevant time but they stated that they were with the deceased at the hospital when she was taken for treatment. Both the accused persons denied to the allegations of demand of dowry, ill-treatment and cruelty and also the allegations of administration of poison. 3. To substantiate the charge, prosecution examined as many as seven witnesses and relied on documents marked as Exts. 1 to 12. Amongst the witnesses, parents of the deceased are P. Ws 1 & 2 and the two co- villagers are P. Ws 4 & 5. P.W. 3 is the doctor who granted treatment to the deceased when she was brought to the dispensary and P.W. 6 is the doctor who conducted autopsy and proved the post-mortem report, Ext. 5. Ext. 4 is the medical report of the deceased. P.W. 7 is the Investigating Officer. 4. P.W. 3 is the doctor who granted treatment to the deceased when she was brought to the dispensary and P.W. 6 is the doctor who conducted autopsy and proved the post-mortem report, Ext. 5. Ext. 4 is the medical report of the deceased. P.W. 7 is the Investigating Officer. 4. Learned Second Additional Sessions Judge, Cuttack who took up the trial and delivered the judgment had noted in the impugned judgment that the factum of ill-treatment on account of non-fulfillment of dowry of cycle is proved against accused Umesh in view of the evidence of P. Ws 1 & 2 so also supportive and corroborative evidence of P.W. 4. Notwithstanding the evidence of P.W. 3 that there was no external injury or any other injury on the body of the deceased where he was granted treatment, the evidence of doctor P.W. 6 regarding presence of external injury on the head and internal injury inside the brain could be possible as ante-mortem injury before the deceased was brought to the hospital and therefore, the death of the deceased, accused Umesh should be convicted for all the offences under Sections 302/304B /498A and 4 of the Dowry Prohibition Act. Recording such finding, learned Additional Sessions Judge imposed rigorous imprisonment for life (underlined to put emphasise) and a fine of rupees five thousand for conviction, u/s 302 I.P.C, rigorous imprisonment for seven years u/s 304B I.P.C, rigorous imprisonment for three years, u/s 498A I.P.C and rigorous imprisonment for two years and a fine of rupees five thousand u/s 4 of the D.P. Act. 5. In this case, it is noticed that the trial Court did not formulate the point for determination nor pin-pointedly decided if the deceased suffered homicidal death. In that respect evidence of P.W. 6 is the most material evidence and the evidence of P.W. 3, 1 & 2 are circumstantially relevant. According to P.W. 6, on examination of the dead body, he found that 1. Left forehead was contused of 2.5 cm. diametre adjacent to the hair line at 3 cm. away from the middle line. 2. Left perital area was swollen of 3 cm. diameter. 3. Both the eyes were blackened. On dissection extra vacation of blood was found below injury No. 3. 4. Subscalpal tissue over left frontal area was contused in an area of 4 cm. diametre. 5. diametre adjacent to the hair line at 3 cm. away from the middle line. 2. Left perital area was swollen of 3 cm. diameter. 3. Both the eyes were blackened. On dissection extra vacation of blood was found below injury No. 3. 4. Subscalpal tissue over left frontal area was contused in an area of 4 cm. diametre. 5. Subscalpal tissue over the left parietal area are contused in an area at 3 cm. diametre. 6. Organs like brain, liver, splin and kidnies are congested. 7. Left side cerebrum was contused with haematoma formation.... P.W.6 opined that such injuries were ante mortem and the cause of death was due to combine effect of snock and asphyxia and such asphyxia was caused due to injury to the brain. It is opined on the record that the deceased was admitted at 5.40 p.m on 9.7.1998 with the complain of taken unknown poison. There it has been written" As per statement of (patient) she had taken unknown poison". P.W.3 in his evidence stated that (i) Pupils of the eyes was normal, Patient was irritable. (ii) No abnormality is detected on the chest. Heart rate was 60 per minute & irregular. 2. Pulse rate was 60 per minute and irregular. B.P. was 100/70 MMHG. I have treated the patient by washing the stomach. The above patient was declared dead at 2.15 AM on 10.7.1998. I am acquainted with the handwriting and signature of Dr. G.P. Sahu. Ext. 4 is my report and Ext. 4/1 is my signature. Ext.4/2 is the endorsement with signature of Dr. G.P. Sahu. In the cross-examination P.W. 3 stated that "My report does not reveal any existence of external injury. I have not ascertained the reason of the ailment". 6. On a further reference to the evidence of P.W. 6 (made in course of cross-examination) it is stated by that witness that" If the deceased had dashed against any hard and blunt object like a wall the external injuries and the corresponding internal injuries are possible". When the evidence on record stands at that, a case of homicide on the basis of poisoning as per the charge is not at all made out. When the evidence on record stands at that, a case of homicide on the basis of poisoning as per the charge is not at all made out. Be that as it may, the evidence adduced by the prosecution does not at all prove a case of homicidal death and such is not that as per the further evidence of P.W. 2 that 15 days prior to the incident accused had reiterated his demand and cautioned them for the consequence in case of non-fulfillment, there is no corroborative evidence. Apart from that, the I.O admitted in his cross-examination that the statement relating to such threatening was not made before him by P.W. 2. The evidence of P.W. 2 is found to be exaggerated on that aspect. Be that as it may, for the sake of discussion, if it is accepted that the demand was reiterated 15 days before the date of occurrence, then also that does not fulfill the requirement of "soon before her death she was subjected to cruelty or harassment". Therefore, a case of dowry death is also not proved. The legal requirement vis-a-vis the factual evidence was not at all discussed or considered by learned Additional Sessions Judge. The same menology is applicable in case of ill-treatment and cruelty punishable u/s 498A and Section 4 of the Dowry Prohibition Act. 7. Under Such circumstance, we set aside the order of convictions of the Appellant and set him at liberty forthwith, because he is detained inside the jail custody from 12.7.1998, i.e., is for a period over 10 years. 8. The Criminal Appeal is accordingly allowed. Appellant be set at liberty forthwith if his detention in jail custody is not required in any other criminal case. Release warrant be issued accordingly and immediately. Final Result : Allowed