JUDGMENT B.V. PINTO, J.—This appeal is filed by the accused challenging the judgment dated 26/28.2.2004, passed by the Fast Track Court-VIII, Bangalore in S.C. No. 755/1999 convicting the accused for the offences punishable under Sections 498A, 304B IPC and Section 4 of Dowry Prohibition Act and sentencing him to undergo S.I, for a period of 1 year and to pay fine of Rs. 1,000/- for the offence under Section 498A IPC and S.I. for a period of 10 years for the offence punishable under Section 304B IPC and S.I. for 1 year and to pay fine of Rs. 1,000/- for the offence punishable under Section 4 of D.P. Act, with default clauses. 2. It is the case of the prosecution that deceased Dhanalakshmi @ Manjamma was given in marriage to accused on 22.4.1999 and before the marriage the accused has demanded and accepted dowry in the form of gold jewels, thereby, he is alleged, to have committed offence punishable under Section 3 of D.P. Act. It is further alleged that, after the marriage the accused had subjected deceased Dhanalakshmi to cruelty and harassment on the pretext of bringing further dowry and thereby, he is alleged to have committed offence punishable under Section 4 of D.P. Act. It is further alleged against the accused that he was ill-treating and harassing the deceased Dhanalakshmi while she was living as wife of the accused and thereby, he is alleged to have committed offence punishable under Section 498A IPC, It is further alleged that, being unable to tolerate the ill-treatment and harassment in connection with the dowry demand for on 30.6.1939 at 9 a.m., the deceased committed suicide by pouring kerosene on herself and setting fire, thereby, he is alleged to have committed an offence punishable under Section 304B IPC. 3. The prosecution in order to prove the case has examined in all 12 witnesses, P.Ws. 1 to 12 and got marked documents Exs. P1 to P4 and produced M.Os. 1 to 3. 4. The defence of the accused was one of total denial. He has examined Murugesh as DW. 1 and got marked Exs. D1 and D2 in his defence. 5. However, after hearing the prosecution and the defence, the learned Sessions Judge was pleased to convict the appellant, and sentenced him as herein before mentioned. The convicted accused has filed this appeal. 6. He has examined Murugesh as DW. 1 and got marked Exs. D1 and D2 in his defence. 5. However, after hearing the prosecution and the defence, the learned Sessions Judge was pleased to convict the appellant, and sentenced him as herein before mentioned. The convicted accused has filed this appeal. 6. Heard Smt. Padmavathi, learned Counsel for the appellant, and Sri Vijaya Kumar Majage, Learned HCGP for the respondent State. 7. Learned Counsel for the appellant submits that the deceased Dhanalakshnii was an orphan girl who was brought by P.W. 1 from the premises of Velangani Church in Tamil Nadu when he had gone on a tour. The said deceased was 4 years of age, at the time when she was brought from Velangani Church to Bangalore. Though the complainant was well educated and well to do person, being Ex-MLA having 3 wives and 10 children, he has not sent the deceased to the school and made the deceased to work as a maid in the house of P.W. 1 and for his different wives. The deceased was harassed in the house of P.W. 1 and later on, she was given in marriage to the accused, who is physically handicapped person. The accused is the teacher in private school and with a purpose of securing the deceased back to the house of his wives this marriage was arranged by P.W. 1 and there were no expenses incurred by P.W. 1 for the marriage much less giving any dowry. The deceased having known the conduct and mentality of the P.W. 1 would never have asked for scooter or cash money or house site as alleged by the prosecution witnesses. Since from the day one, P.W. 1 has never treated the deceased as his daughter, but as a maidservant in the house without payment, of salary for her sendees. Under the circumstances, she submits that the question of harassing or ill-treating the deceased at the hands of accused does not arise at all. Further, deceased had lived with the accused for not more than 68 days and the said time is too short time, to say regarding the conduct of the accused in treating his newly married wife. The concept of willful conduct is totally misconceived in this case, having regard to the duration of living together by the accused and the deceased. Further, deceased had lived with the accused for not more than 68 days and the said time is too short time, to say regarding the conduct of the accused in treating his newly married wife. The concept of willful conduct is totally misconceived in this case, having regard to the duration of living together by the accused and the deceased. She further submits that the allegation that the accused was burning the body of the deceased by cigarette butts is not proved by either the inquest; proceedings or the post mortem report. It is in the evidence of P.W. 6, the foster mother of the deceased, that the deceased had never come to house personally but demanding the articles mentioned above over the phone, but on the next question P.W. 6 has stated that she does not know as to when such phones were received by her. Under the circumstances, learned Counsel for the appellant submits that theory of demand for dowry soon before the death is not proved. In this ease, therefore the appellant is wrongly convicted and submits that evidence adduced by the prosecution does not prove beyond reasonable doubt any offence either under Section 498A or 304B IPC or under Section 4 of D.P. Act. Hence, appeal may be allowed and order of conviction may be set aside. 8. Sri Vijaya Kumar Majage, learned HCGP on the other hand submits that, evidence of P.W. 1 coupled with the evidence of P.Ws. 5 and 6 clearly establishes that the accused has demanded dowry before marriage and harassed deceased Dhanalakshmi while living as husband and wife in his house and the deceased has committed suicide being unable to tolerate the ill-treatment and harassment caused to her for want of dowry. Under the circumstances, he submits that, the order of conviction may be sustained and the appeal may be dismissed. 9. The prosecution in this case commenced by filing of the complaint by Sri Srinivasa on 30.6.1999 before the Kadugondanahalli Police Station, Bangalore. It is stated by him that before 20 years prior to giving the complaint, he has gone to the South India tour, as a part of said tour, he and his family had been to Velangani Chuch. After seeing the Velangani Church they remained for 3 days and at that time, one small girl was coming behind them. It is stated by him that before 20 years prior to giving the complaint, he has gone to the South India tour, as a part of said tour, he and his family had been to Velangani Chuch. After seeing the Velangani Church they remained for 3 days and at that time, one small girl was coming behind them. He asked the church father as to who that girl is and the church father fold him that the girl is orphan and therefore, they brought her on the pretext, of taking care of her. She was about. 4 years at that time and after coming to his house, he was looking after as his own daughter. About 13 months ago, his relative by name Shiva Pandian proposed to give Dhanalakshmi in marriage to his relative Ravi. About 3 months ago, at the intervention of the said Shiva Pandian, marriage of Dhanalakshmi was celebrated with Ravi-accused. At the time of marriage, gold ornaments and household articles were given and marriage was performed in a choultry. After the marriage accused was living with the his wife in the 7th cross, 7th main of Pilanna Garden, third stage, Bangalore. During the period when accused was living with his wife, he was giving mental and physical ill-treatment to deceased Dhanalakshmi and he was abusing her. He was asking her to bring money, site, scooter and share in the property. This fact was told to him by his wife to whom deceased was phoning. It is in the complaint that on 30.8.1999, at about 9.30 a.m., one Shamshuddin informed him that his daughter had set herself on. fire and when he went to his daughter’s house, his daughter Dhanalakshmi had sustained burn injuries and had already died. The neighbouring people informed him that, accused has been ill-treating his daughter for the sake of scooter and site and therefore, she has committed suicide on 30.6.1999 at 9 a.m., by pouring kerosene on herself and setting fire on her. Based on the above information, the Kadugondariahalli Police registered the case in Crime No. 240/1999 for the offences punishable under Sections 498A and 304B of IPC and Sections 3 and 4 of D.P. Act and commenced investigation. After completion of the investigation charge sheet came to be filed against the appellant for the above said offences. 10. During the trial complainant has been examined as P.W. 1. After completion of the investigation charge sheet came to be filed against the appellant for the above said offences. 10. During the trial complainant has been examined as P.W. 1. He has reiterated the version contained in the complaint Ex. P1. In the cross-examination, he has stated that first wife is one Rani, second wife is one Indira and he does not know who is Helen Mary. His first wife has got 4 children and all of them are educated, second wife has got 6 children and all of them are educated beyond SSLC. However, deceased Dhanalakshrni was not educated at all but was made to work, in the house. It was suggested to him that deceased was made to work in the house of both his wives but the witness replied that deceased was working in the house of second wife Indira Bai. It is stated by him that Dhanalakshrni was mentally and physically fit and there was no deformity in her. P.W. 1 has replied to a question that there was no objection or obstacle to him to admit the deceased to the school. It is stated that the accused, having noticed the ill-treatment and suffering of Dhanalakshmi himself offered to marry Dhanalakshmi and at the time of marriage P.W. 1 has not spent a single rupee for the said marriage. P.W. 1 has voluntarily stated that 50% of the expenses was met by him for the marriage of the deceased. In the further cross-examination, P.W. 1 has admitted that the accused has not asked him directly either the (sic) dowry or the scooter or the site, but the same was asked to his wife Indira over phone. It is suggested to him that the deceased Dhanalakshmi was looked as a bonded labour in his house and in order to see that she works in the house of his wives even after the marriage, he had agreed to give the deceased to the accused. P.W. 2 is a neighbour of accused, who has stated that deceased was living happily with her husband. Accused was not having a toilet in his house and deceased was coming to her house for using the toilet. In the cross-examination, it is brought out that accused is a middle class citizen and she has never seen accused fighting with his wife. Accused was not having a toilet in his house and deceased was coming to her house for using the toilet. In the cross-examination, it is brought out that accused is a middle class citizen and she has never seen accused fighting with his wife. P.W. 3 Shamshuddin has stated that on hearing that Dhanalakshmi has sustained burn injuries, he informed the same to P.W. 1. P.W. 4 is the signatory to Ex. P3 inquest report, P.W. 5 Cheiuvaraju is the brother of P.W. 1. He has sated that his house is at a distance of 500 to 600 feet away from the house of P.W. 1 and that the deceased had informed the wife of P.W. 1 regarding the harassment. In the cross-examination, it is brought out that P.W. 1 has married twice and got 10 children. All of them are educated and they are all well settled. After the deceased came to their house Indira Bai-second wife of P.W. 1 had begotten one son by name Prabhakar, another son by name Vijayendra and deceased was taking care of the house of P.W. 1. It is denied that deceased was looked as the maidservant in the house and as a bonded labour. It is also elicited that he has no personal knowledge of demand of dowry and demand of site, scooter etc. P.W. 6 is the second wife of P.W. 1. She has stated that deceased was found in Velangani Church when she was 4 years of age and she was brought to Bangalore. It is in her evidence that the accused was burning the deceased by means of cigarette butts and he was ill-treating, assaulting and harassing deceased. In the cross-examination, it is elicited that Dharialakshmi has not informed her that the accused was demanding for site, scooter and cash. In the further cross-examination, she has stated that she does not know as to when such telephone calls were received from the deceased. P.W. 7 Palina is a neighbour who knows both the accused and the deceased. P.W. 7 after chief examination recorded on 15.6.2001 did not appear before Court for cross-examination, hence, the trial Court has held the evidence of P.W. 7 as nil. P.W. 8 Ravi Kumar is the signatory to Ex. P3 inquest proceedings, P.W. 9 is the signatory to Ex. P.W. 7 after chief examination recorded on 15.6.2001 did not appear before Court for cross-examination, hence, the trial Court has held the evidence of P.W. 7 as nil. P.W. 8 Ravi Kumar is the signatory to Ex. P3 inquest proceedings, P.W. 9 is the signatory to Ex. P2, which is the spot, mahazar, which is conducted in the house of deceased and accused. P.W. 10 Mary is the daughter-in-law of P.W. 1. However, after her examination-in-chief on 30.7.2002, she was not available for cross-examination and the learned Session Judge has held that her evidence is nil, P.W. 11 Byrappa is the constable who attended the dead body during post mortem examination and later on handed over the body to the relatives. P.W. 12 is the Inspector of Police of Kadugondanahalli Police Station who has conducted the part of investigation, recorded spot mahazar, recovered the personal belongings of the deceased and handed over the same to P.W. 3. 11. After the conclusion of the evidence, the accused was questioned regarding the involvement in the case. He has stated that he is running a school and Dhanalakshmi was coming there and informed him about her predicament in the house of P.W. 1, Thereafter, he loved her and married her but has never asked for any dowry from P.W. 1 or anybody else. He has got examined one Murugesh as DW. 1 who is a cook. DW. 1 has stated that accused himself has ordered him to cook for the marriage celebrated in Mounakurumaduvaria choultry in Cox town and he has cooked the food for the marriage of the accused with the deceased. He has stated that accused himself has given entire cost of cooking as well as entire expenses of the marriage. 12. It is from the evidence of these witnesses the learned Magistrate has found the accused guilty and has convicted and sentenced him as mentioned above. 13. On a careful consideration of the entire material on record, it is seen that the version of P.W. 1 that the accused has demanded dowry prior to the date of marriage, is not proved beyond reasonable doubt, except the oral version of P.Ws. 1, 6 and hearsay evidence of P.W. 5 brother of P.W. 1. There is no material to prove that the accused has asked for any dowry from the hands of P.W. 1. 1, 6 and hearsay evidence of P.W. 5 brother of P.W. 1. There is no material to prove that the accused has asked for any dowry from the hands of P.W. 1. It is in the evidence of P.W. 2 Roseling Kumar that the accused has no toilet in his house and he belongs to a middle class family. Under the circumstances, it has to be believed that the accused would have no capacity or moral courage to ask any dowry from the hand of P.W. 1, who was a MLA at onetime and was having affluent means and persons in his command. Under the circumstances, I am not inclined to believe the version of P.W. 1, so far as the demand of dowry, scooter or site by the accused. If one looks at the status of P.W. 1 and accused, the accused would have no courage to stand before P.W. 1 and open his mouth to ask the deceased in marriage, leave alone, asking for dowry. The statement made by the accused in his statement under Section 313 Cr.P.C. states that looking at the plight of the deceased, he started loving her. The spot, mahazar drawn by the police throws better light into the situation of accused as on the date of the marriage of accused and deceased. Under the circumstances, the entire story propagated by P.W. 1 through himself and P.W. 6 is not believable either so far as ill-treatment of deceased is concerned or in so far as the demand of dowry is concerned. Under the circumstances, prosecution has not proved the ingredients of offence under Section 304B IPC namely, demand for dowry soon before death” and consequent commitment of suicide by deceased being unable to tolerate such harassment. In view of such observations the following order is made: 1. The appeal is allowed. 2. The order of conviction and sentence passed by the trial Court is hereby set aside and the accused is acquitted of the offence punishable under Sections 498A, 304B of IPC and Section 4 of D.P. Act. 3. Bail bond if any, executed by him is hereby cancelled. 4. Fine amount if any, deposited by him shall be refunded to him.