JUDGMENT : Dinesh Kumar Singh, J. 1. The present appeal has been filed by appellant, Ram Kishore s/o Mahadeen. Aggrieved by the judgment and order of conviction and sentence dated 31st August, 2001 passed by the Additional Sessions Judge, Ayodhya Case, Lucknow in Sessions Trial No.683 of 1997 arising out of Case Crime No.224 of 1988 under Sections 498-A and 304-B IPC, Police Station Sarojini Nagar, District Lucknow. 2. The Trial Court vide impugned judgment and order had acquitted four other accused of all charges and had only convicted only the accused-appellant under Sections 498-A and 304-B IPC and sentenced him to undergo 3 years’ rigorous imprisonment with fine of Rs.5,000/- under Section 498-A and 10 years’ rigorous imprisonment under Section 304-B IPC. It was further directed that both the sentences would run concurrently. In the event of non payment of fine, the accused would undergo 6 months further imprisonment. 3. The prosecution case, in brief, is that on 6th December, 1988, Ram Kumar, brother of the deceased, Krishna Kumari gave a written complaint, Exh.Ka-1 at Police Station-Sarojini Nagar, District-Lucknow alleging that deceased, Krishna Kumari was married to the accused-appellant in April, 1986. First year of the marriage was peaceful and thereafter, the accused and other family members started demanding one cycle, watch etc., as dowry items. After one year of marriage, the accused along with his four-five friends brought the deceased to her parental home and left her there. A Panchayat was organised to settle the dispute between the accused-appellant and the deceased and after the Panchayat, the deceased came back to her in-laws place. However, after 20 days thereafter, on 2nd December, 1988, the accused-appellant bet her with fists and kicks. It was further alleged that on 3rd December, 1988, the accused-appellant, his father, Mahadeen and Kallu sprinkled kerosene oil on the deceased and set her on fire. Later on, she was brought to Sarojini Nagar Hospital by Ram Vilas and his mother. After first aid, she was referred to Balrampur Hospital. During the course of treatment in Balrampur hospital, she died on 3rd December, 1988 at around 6:00 P.M. It was said that Ram Vilas and his mother saw the accused putting the deceased on fire. 4. On the basis of the aforesaid complaint, FIR at Case Crime No.224 of 1988 under Sections 498-A and 304-B IPC and Section 3/4 of the Dowry Prohibition Act was registered. 4. On the basis of the aforesaid complaint, FIR at Case Crime No.224 of 1988 under Sections 498-A and 304-B IPC and Section 3/4 of the Dowry Prohibition Act was registered. After conducting the inquest, dead body was sent for postmortem. 5. Postmortem on the dead body of the deceased was conducted by Dr. V.K. Mishra (P.W.-3) on 4th December, 1988. In the post mortem examination, Dr. V.K. Mishra noticed the following two antemortem injuries: - "(i) Abraded contusion of 5 cm x 2 cm right side of 10 cm below lower angle of right scapula. (ii) Abraded contusion of 2 cm x 2 cm, 2 cm lat to mid line at the level of 2-2 vertebra." 6. Dr. V.K. Mishra in his statement said that the deceased died due to antemortem burn injuries. She had got burnt 70%. He said that two injuries of contusions were identified before she got burnt. 7. After completing the investigation, the investigating officer filed charge-sheet against the accused-appellant and others. Charges were framed against the accused-appellant and others under Sections 147/304-B IPC and 149/498-A IPC which the accused denied and claimed for trial. 8. Prosecution to prove its case examined as many as 14 witnesses namely : - (i) P.W.1, Ram Kumar (ii) P.W.-2, Buddha (iii) P.W.-3, Dr. V.K. Mishra (iv) P.W.-4, Addl. Superintendent of Police Anil Das (v) P.W.-5, S.P. (Rural) Ajay Mohan Sharma (vi) P.W.-6, Purnima Singh (vii) P.W.-7, Smt. Bholana, (viii) P.W.-8 Chandradhar Tripathi (ix) P.W.-9 Ram Vilas (x) P.W.-10, Drigpal (xi) P.W.-11 Ram Avtar (xii) P.W.-12, Laxmi Narain (xiii) P.W.-13, S.I. Munna Bajpai (xiv) P.W.14, Scientific Officer 9. During the course of trial, Mahadeen died on 12th October, 1999 and, therefore, the trial against him got abated. Statements of accused under Section 313 CrPC were recorded in which they denied the allegations and in their defence examined as many as five defence witnesses namely:- (i) D.W.-1, Ram Prasad (ii) D.W.-2, Hardoi (iii) D.W.-3, Smt. Janak Dulari (iv) D.W.-4, Ram Kumar (v) D.W.-5, Mansharam 10. P.W.-1, the complainant deposed that after Gauna ceremony her sister came to her parental home from her in-laws place. In the marriage they could not give watch and cycle, however, his father promised that a watch and cycle would be given to the accused-appellant. P.W.-1, the complainant deposed that after Gauna ceremony her sister came to her parental home from her in-laws place. In the marriage they could not give watch and cycle, however, his father promised that a watch and cycle would be given to the accused-appellant. He reiterated the allegations of the FIR and said that the accused used to torture and assault the deceased for these two dowry items. He further said that on 3rd December, 1988 i.e. the date of incident, the accused had beaten the deceased and thereafter, put her on fire after sprinkling kerosene oil and due to that reason she had died. He said that Ram Vilas and his mother had seen the accused setting the deceased on fire after sprinkling kerosene oil. This witness is not an eye witness. His evidence is of hearsay evidence inasmuch as he had deposed on the basis of information given by P.Ws. 7 and 9. 11. P.W.-2, father of the deceased had corroborated the statement of P.W.-1. P.W.-2 was also not present at that time and place of incident. He was also not an eye witness. He further said that he went to the hospital at Sarojini Nagar where the deceased was admitted and at the hospital Smt. Bhagwandei wife of Mahadeen, Kallu Lodh and Ram Kishore were present in the Hospital. The deceased was taken to Balrampur Hospital by his son. However, she died within an hour of admission in Balrampur Hospital. He said that Mahadeen, father of the accused-appellant, Ram Kishore assured that they would not beat Krishna Kumari and on their assurance in the Panchayat, she was sent to her in-laws place. 12. Except for these two witnesses, none of the other witness of fact has supported the allegations of demand of watch and cycle. 13. P.W.11, Ram Avtar said that he was present in the Panchayat which held at the house of Buddha, father of the deceased. He did not say that the accused used to beat the deceased for not bringing the dowry. However, he said that the accused promised that they would not torture or beat the deceased and on their assurance, the deceased was sent to her in-laws place. 14. He did not say that the accused used to beat the deceased for not bringing the dowry. However, he said that the accused promised that they would not torture or beat the deceased and on their assurance, the deceased was sent to her in-laws place. 14. P.W.-12, Laxmi Narayan also supported the fact of Panchayat and the fact that the accused and his father promised that they would not torture or beat the deceased and on their assurance the deceased was sent to her in-laws place thereafter. 15. P.W.-7, Smt. Bholana in her statement before the Court did not say that she witnessed the accused setting the deceased on fire. However, she said that when she came to know about the incident, she went to the house of the accused-appellant and found that the deceased was taken on a cot to the hospital and the accused-appellant was present at the place. On her cross-examination, she said that she did not remember that who else were present and at what time the incident took place. She said that she went to the place of incident in the morning but she did not remember how long she remained there. Demeanor of this witness is not such that it can be relied on. It appears that she was not present when the incident took place. 16. P.W.-9, Ram Vilas also said that when he and her mother were bringing paddy from their filed at that time they had heard the cry “save, save” and then they reached the house of Ram Kishor at around 11:00 A.M. and thereafter, they brought the deceased on a cot to Sarojini Nagar Hospital. 17. The defence witnesses had categorically said that when the deceased died, it was around 10-11:00 A.M. D.W.-2 said that he saw the deceased engulfed in fire and the accused and his family were in their field. She raised alarm and then many people came running to the place of incident and then the fire was extinguished by pouring water. She said that she removed the burnt clothes and fresh clothes were put on the deceased. She said that in the process, she also got her thumb injured. 18. Thus, from the analysis of evidence, it is clear that the accused-appellant used to torture and beat the deceased. She said that she removed the burnt clothes and fresh clothes were put on the deceased. She said that in the process, she also got her thumb injured. 18. Thus, from the analysis of evidence, it is clear that the accused-appellant used to torture and beat the deceased. The accused had beaten the deceased before the date of incident inasmuch as two injuries of contusions would indicate that the deceased was beaten up by the accused. The demand of dowry is not proved by the evidence of the prosecution but from the medical evidence and the evidence of other prosecution witnesses, it is clear that the deceased used to be tortured by the accused-appellant. It appears that on the date of incident she was beaten up by the accused and thereafter, she committed suicide by pouring kerosene oil. 19. Considering the aforesaid aspect of the matter, ingredients of Section 498-A and 304-B IPC are not made out against the accused-appellant. Since the accused-appellant assaulted the deceased for which she had committed suicide, the accused should be convicted for offence under Section 306 IPC. The incident is of the Year 1988. 30 years have been gone by since the date of incident. 20. Considering the facts and circumstances of the case as well as the time which has got elapsed since the date of incident, it would be appropriate to sentence the accused for 3 years rigorous imprisonment. 21. Thus, this appeal is partly allowed. 22. The accused-appellant is convicted under Section 306 IPC and sentenced to undergo 3 years rigorous imprisonment. The sentence already undergone by the accused, would be reduced from the sentence of 3 years and he should remain in jail to serve out remainder of the sentence. 23. Learned CJM, Lucknow is directed to get the appellant arrested and send the accused-appellant to prison to undergo the remainder of sentence as awarded by this court. 24. Let lower Court record be returned to the lower Court for necessary action.