Dharam Veer, J.
1. This appeal, preferred by the appellants Under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), is directed against the judgment and order dated 19.10.1994 passed by the Additional Sessions Judge, Roorkee in Sessions Trial No. 323 of 1989, State v. Smt. Kamla Rani and Anr., whereby each of the appellants/accused, viz., Kamla Rani and Jagdishwar Prasad have been convicted under Section 304B & 498A of Indian Penal Code, 1860 (for short, IPC) and each of them has been sentenced to R.I. for 10 years Under Section 304B IPC, but no separate sentence was awarded to the accused appellants Under Section 498A IPC. However, the appellants accused were acquitted of the charges of offence punishable Under Section 306 IPC.
2. Appellant No. 1 Smt. Kamla Rani died during the pendency of this appeal. Hence, appeal of Smt. Kamla Rani stood abated by the order dated 16.2.2010 passed by this Court.
3. The prosecution case, in brief, is that Kamlesh @ Simmi w/o the present accused appellant Jagdishwar Prasad consumed poison in the evening of 28.3.1987 in the house of the accused appellant. She was taken to the Civil Hospital, Roorkee by the accused appellant where she was medically examined by PW6 Dr. SK Srivastava on the same day i.e. on 28.3.1987 at 8.30 pm, who also prepared the medical report Ex. Ka-3. She died on the same day at 9.30 pm in the said hospital. Thereafter inquest report Ex. Ka-4 was prepared by SI Surendra Singh on 29.3.1987 at 11 am (in the inquest report the complainant PW1 Laxmi Chand was one of the panches as mentioned at serial No. 1 in the inquest report). Along with the inquest report, photo lash Ex. Ka-6, specimen of seal Ex. Ka-7, letter to CMO Ex. Ka-8 for conducting the post mortem, police proforma No. 13 Ex. Ka-9 and report of PS Gangnahar addressed to CMO Ex. Ka-10 were also prepared. Post mortem of the dead body was conducted by PW5 Dr. OP Sharma on 29.3.1987 at 3 pm and prepared the post mortem report Ex. Ka-2. Cause of death could not be ascertained in the post mortem and hence viscera was preserved, which was sent to the Forensic Laboratory, Agra for chemical analysis. Report of the Forensic Laboratory is Ex. Ka-12, wherein it has been stated that Aluminium Phophite poison was found in the parts of viscera.
4. Thereafter on 2.4.1987 at 8.30 pm, PW1 Laxmi Chand lodged an FIR Ex. Ka-1 with PS Gangnahar, Roorkee with the averments that the marriage of his daughter Kamlesh @ Simmi (the victim) was solemnized with the present accused appellant Jagdishwar Prasad on 5.10.1986 at Roorkee and he had given dowry commensurate with his status. Jagdishwar Prasad had a cycle repair shop at Roorkee. After the marriage, Jagdishwar Prasad and his parents started pressurizing his daughter Kamlesh @ Simmi to bring money from her father so that the present accused appellant may start some fine business. The daughter of the complainant told him about this fact in December, 1986. The complainant shown his inability to fulfill the said demand pleading poorness. Thereafter his daughter Kamlesh @ Simmi was being started harassed by her husband (present accused appellant) and her in-laws. On 24.3.1987, his daughter again came to his house and said to the complainant that the accused appellant Jagdishwar Prasad and his parents had stepped up the pressure on her to anyhow bring Rs. 50,000/- for the business and his daughter asked him to somehow manage the said amount. On this, the complainant went to the house of the accused appellant and told him that he being a very poor person could not arrange the said money for his business. On 28.3.1987 at about 8 pm, the present accused appellant came to him and told that his daughter was ill and asked him to proceed immediately. On this he and his wife Smt. Dayawanti (PW2) immediately reached at the place of occurrence where they saw that their daughter Kamlesh @ Simmi, who was pregnant at that time, was lying unconscious and parents of Jagdishwar Prasad and one Ishwar Dayal Agarwal and a Compounder Soni were forcibly making her engulf something in a glass. When the complainant asked as to what had happened, then the accused appellant Jagdishwar Prasad and his parents told him that his daughter had consumed something and become unconscious. Her condition was deteriorating. The complainant and his wife Smt. Dayawanti (PW2) immediately brought her to the hospital on a rickshaw and got her admitted. Ishwar Dayal Agarwal and the Compounder had already reached at the hospital as they came there on a scooter. After half an hour, his daughter Kamlesh @ Simmi expired in the hospital. The complainant alleged that her daughter was killed by the accused appellant and his parents by giving her some poisonous substance. At about 11.30 pm on the date of incident, the complainant was brought at the police station by Iswar Dayal Agarwal, who told there his deceased daughter had consumed rat poison. When the complainant tried to lodge the report, Iswar Dayal Agarwal asked him not to lodge the report as he already had lodged the report.
5. On the basis of the FIR Ex. Ka-1, chick FIR Ex. Ka-13 was prepared by Head Moharrir Rameshwar Prasad on 2.4.1987 at 8.30 pm. Necessary entries were made in the GD. Copy of GD is Ex. Ka-14. The investigation of this case was entrusted to C.O. Anil Kumar Jain, who inspected the place of occurrence and prepared the site plan Ex. Ka-5. The IO during the course of investigation recorded the statements of the witnesses and after completing the investigation filed the chargesheet Ex. Ka-11 against the present accused appellant and the co- accused Kamla Rani (appellant No. 2 whose appeal has been abated) and Madan Gopal, who died before the committal of the case and hence, case against him was abated by the Additional Munsif Magistrate vide order dated 13.3. 1989.
6. Learned Additional Munsif Magistrate/Judicial Magistrate, Roorkee, after giving the necessary copies of the documents to the accused appellants as prescribed under Section 207 Cr.P.C., committed the case to the Court of Sessions on 17.5.1989. Thereafter the case was transferred to Additional Sessions Judge, Roorkee for its disposal according to law.
7. On 16.11.1989, learned Additional Sessions Judge, Roorkee framed the charges against the accused appellants Under Section 306 read with Section 34 IPC, Section 498A read with Section 34 IPC and Section 304B read with Section 34 IPC. The charges were read over and explained to each of the accused appellants, who pleaded not guilty and claimed to be tried.
8. To prove its case, prosecution has examined PW1 Laxmi Chand, the complainant and father of the victim; PW2 Smt. Dayawanti, mother of the victim; PW3 Jagdish, brother-in-law of the deceased; PW4 Smt. Vidyawanti, neighbourer of the complainant; PW5 Dr. OP Sharma, who conducted the post mortem and prepared the post mortem report Ex. Ka-2; PW6 Dr. SK Srivastava, who had medically examined the victim when she was admitted to the hospital and prepared the medical report Ex. Ka-3; PW7 Anil Kumar Jain, C.O. and the Investigating Officer of the case and PW8 Constable Ved Prakash, who has proved the chick FIR Ex. Ka-13 and copy of GD Ex. Ka-14.
9. Thereafter, statements of each of the accused appellants were recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to them in question form, who denied the allegations made against them and stated that they have been falsely implicated in the case. However, in defence, they did not produce any documentary evidence on record. But two witnesses, viz., DW1 Ramesh Chand Pandey and DW2 Fakir Chand Sharma were examined in defence.
10. After hearing learned Counsel for the parties and appreciating the evidence on record, the learned Additional Sessions Judge, Roorkee vide his judgment and order dated 19.10.1994 convicted and sentenced to the accused appellants as discussed above. Against the aforesaid judgment and order dated 19.10.1994, the present appeal has been preferred.
11. Before any further discussion, it would be pertinent to mention the medical report Ex. Ka-3 prepared by PW6 Dr. SK Srivastava, who medical examined the victim Kamlesh @ Simmi on 28.3.1987 at 8.30 pm and the same is reproduced below:
B/B - Husband. MI - Black mole over suprasternal notch.
On Examination : Pulse 120/m, low volume, very fable, BP 70 systolic, pt, is semiconscious.
Pupils - slightly reacting. R/R - 26/m shallow. Vomiting present+++.
H/O (Taking some poison ingestion) as given by husband. Husband of the patient state that she has taken some poison.
Pt. is in shock. She is a suspected case of poisoing. Gastric lavage contents preserved.
12. To prove the aforementioned medical report Ex. Ka-3, the prosecution has examined PW6 Dr. SK Srivastava, who has proved the contents of the same and has stated that the victim was admitted in the hospital by her husband i.e the present accused appellant, whose thumb impression was obtained in the register and the patient was unable to speak. Hence, she could not enquired.
13. Thereafter she died on the same day at about 9.30 pm in the Civil Hospital, Roorkee and on the next day, post mortem of the dead body was conducted by PW5 Dr. OP Sharma. In the post mortem report Ex. Ka-2, it has been stated that cause of death could not be ascertained, viscera preserved and no external injury was found. To prove the aforesaid post mortem report Ex. Ka-2, the prosecution has examined PW5 Dr. OP Sharma, who has proved the contents of same.
14. To further prove its case, the prosecution has examined PW1 Laxmi Chand, the complainant and the father of the deceased Kamlesh @ Simmi. His statement was recorded on 4.12.1990. This witness in his examination-in-chief has reiterated the averments made in the FIR Ex. Ka-1. In his cross-examination, he has stated that no talks about the dowry took place at the time of marriage and there was no differences between the two families till the victim had gone to house of her in-laws. He has also stated that as per the opinion of Panches, the victim Kamlesh @ Simmi died due to consuming of poison and the complainant was himself one of the Panches in the inquest report Ex. Ka-4. Thereafter this witness was recalled for re-examination by the prosecution on 7.10.1994. In his re-examination, he has stated that report Ex. Ka-1 which lodged by him was prepared on the basis of heresy. Nothing was in his personal knowledge. People of his mohalla had asked him to lodge the report. He told the police as was heard by him. He has further stated that his wife (PW2 Dayawanti) has expired and he was not interested to proceed further with the case. Thus, this witness has not supported the prosecution case in his re-examination and was declared hostile.
15. PW2 Smt. Dayawant, mother of the deceased has stated that her daughter Kamlesh @ Simmi was married to the present accused appellant. After the marriage, her husband and in-laws demanded Rs. 50,000/-, which was not fulfilled. The accused appellant came to her house in the evening after 4-5 days of raising the said demand. He told that Kamlesh was not well and asked to visit her. Thereafter she along with her husband (PW1 Laxmi Chand) went to the house of the accused appellant, where they saw that Kamlesh was lying in unconscious condition. The accused appellant and his parents were present there. She enquired from the accused appellant as to what had happened. He told that she had consumed something. Thereafter they brought the victim to the hospital and got her admitted. After sometime she expired. She was pregnant at that time. In her cross-examination, she has stated that demand of money was raised only before 4-5 days of the said incident and never before such demand was made. No demand was made to her.
16. PW3 Jagdish, brother-in-law of the deceased, has also reiterated the version of PW2 Smt. Dayawanti.
17. PW4 Smt. Vidyawanti is the neighbourer of the complainant, who has stated that Kamlesh @ Simmi had come to her house after her marriage. When she asked about her well-being then she told her that her husband and in-laws were not happy with her and they allege her of bringing fewer objects. She made her understand that everything would be alright after few days.
18. PW7 Anil Kumar Jain has stated that on 2.4.1987, he was posted as C.O. at Roorkee. The investigation of this case was entrusted to him. Inquest report Ex. Ka-4 was prepared by SI Surendra Singh on 29.3.2007. Along with the inquest report, photo lash Ex. Ka-6, specimen of seal Ex. Ka-7, letter to CMO Ex. Ka-8 for conducting the post mortem, police proforma No. 13 Ex. Ka-9 and report of PS Gangnahar addressed to CMO Ex. Ka-10 were also prepared. During the course of investigation, he inspected the place of occurrence and prepared the site plan Ex. Ka-5. He recorded the statements of the witnesses during the course of investigation and after completing the investigation, he filed the chargesheet Ex. Ka-11 against the accused appellants and the co-accused.
19. PW8 Constable Ved Prakash has stated that the chick FIR Ex. Ka-13 was prepared by Head Constable Rameshwar Prasad. He has further stated that the necessary entries in the GD were made by Head Constable Ramswaroop, copy of GD is Ex. Ka-14.
20. Thereafter, statements of each of the accused appellants were recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to them in question form, who denied the allegations made against them and stated that they have been falsely implicated in the case. However, in defence, they did not produce any documentary evidence on record. But two witnesses, viz., DW1 Ramesh Chand Pandey and DW2 Fakir Chand Sharma were examined in defence.
21. DW 1 Ramesh Chand Pandey has stated that he went at the shop of the accused appellant in the evening of 28.3.1987 to get repaired his bicycle. The father of accused appellant Madan Gopal had come there in panic and told the accused appellant that her daughter-in-law (Kamlesh @ Simmi) was vomiting. Thereafter the accused appellant and his father went to their house on a bicycle in his presence.
22. DW2 Fakir Chand Sharma has stated that he lived in the neighbourhood of the accused appellant and they used to visit each other very often. He heard noise coming out of the house of the accused appellant in the evening of 28.3.1987. Thereafter he went there and saw that the wife the accused appellant (Kamlesh @ Simmi) was not well and she was vomiting. The accused appellant was not at his house. Some people of that mohalla and Smt. Kamla Rani the mother of the accused appellant (appeal of whom has been abated) were present there. In his presence, Madan Gopal, father of the accused appellant went to call the accused appellant from his shop. Kamlesh @ Simmi stated before him that she had consumed poison and she no longer wanted to live. She further stated in his presence that she herself was responsible for consuming the poison and none else was at fault for this. At the same time, parents of Kamlesh @ Simmi had arrived there. The accused appellant and his in-laws immediately took her to hospital.
23. Learned Counsel for the accused appellant argued that case against the accused appellant for the offence punishable Under Section 304B and 498A IPC is not proved beyond reasonable doubt by the prosecution and the trial court committed mistake of law in convicting the accused appellant inasmuch as necessary ingredients of Section 304B & 498A IPC have not been satisfied by the evidence adduced by the prosecution. I find substance in the argument of learned Counsel for the accused appellant.
24. The accused appellant has been convicted Under Section 304B & 498A IPC and, therefore, before any further discussion, it would be appropriate to quote these sections for the sake of convenience and the same are reproduced as under:
304B. 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.
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 not be less than seven years but which may extend to imprisonment for life.
498A. Husband or relative of husband of a woman subjecting her to cruelty.-Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.-For the purpose of this section, 'cruelty' means-
(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
25. The evidence adduced on record has to satisfy the necessary ingredients provided under the aforesaid sections of IPC for sustaining the conviction and in the aforementioned factual backdrop, I have to consider as to whether a case has been made out for conviction of the appellant under these sections of IPC.
26. The essential ingredients for proving the offence under Section 304B IPC are (i) death of a woman must have been caused by any burns or bodily injury or otherwise than under normal circumstances; (ii) such death must have occurred within seven years of marriage; (iii) soon before her death she was subjected to cruelty or harassment by her husband or relative of her husband; (iv) such cruelty or harassment must be in connection with the demand of dowry; and (v) such cruelty is shown to have been meted out to the woman soon before her death.
27. The significant words are 'within seven years of marriage' and 'soon before her death'. The main ingredient of Section 498A IPC is also the act of cruelty by the husband or the relative of the husband of a woman. Undisputedly, the deceased died within six months of her marriage. Now, in order to prove the offence against the appellants/accused Under Section 304B and 498A IPC, it was, thus necessary for the prosecution to establish that soon before her death, the deceased must have been subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry.
28. So far as another condition of cruelty or harassment of the deceased soon before her death is concerned, PW5 Dr. OP Sharma has opined in the post-mortem report Ex. Ka-2 as well as in his deposition that no external injury was found on the body of the deceased and her cause of death could not be ascertained. PW6 Dr. SK Srivastava who had medically examined the deceased when she was first brought to the hospital has stated in the medical report Ex. Ka-3 that the patient was brought by her husband and it was a suspected case of poisoning. He also did not find any bodily injury. All these facts make it abundantly clear that the deceased was not subjected to any cruelty or harassment by the accused appellant soon before her death. It creates serious doubt in the prosecution story.
29. As regards the demand of dowry by the accused appellant, it has come in the statement of PW2 Smt. Dayawanti (mother of the deceased) that no such demand was ever made to her. Even in the FIR Ex. Ka-1, it has been alleged that the accused appellant and his parents demanded Rs. 50,000/- from the deceased Kamlesh @ Simmi, but nowhere it has been alleged that the said demand was directly made to the complainant, father of the deceased or his wife. Even otherwise, the allegation made in the FIR is that Rs. 50,000/- was demanded to start some better business by the accused appellant. Learned Counsel for the accused appellant very vehemently argued that even if said version of the FIR is assumed to be correct, it cannot be termed as 'dowry demand' as the said demand was for doing some better business.
30. The explanation appended to Sub-section (1) of Section 304B IPC says that 'dowry' shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 and the same is reproduced below for the sake of convenience:
Section 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 parent of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.
Explanation II-The expression 'valuable security' has the same meaning as in Section 30 of the Indian Penal Code (45 of 1860)
31. Section 30 of the IPC is also reproduced below: 'Section 30. 'Valuable Security'.-The words 'valuable security' denote a document which is, or purports to be, a document whereby any legal right is created, extended, transferred, restricted, extinguished or released, or where by any person acknowledges that he lies under legal liability, or has not a certain legal right.'
32. Learned Counsel for the appellant cited a judgment delivered by Hon'ble Apex Court in the case of Appasaheb and Anr. v. State of Maharashtra reported in : (2007) 9 SCC 721 and relied heavily on para 11 of the said judgment, which is reproduced below:
11. In view of the aforesaid definition of the word 'dowry' any property or valuable security should be given or agreed to be given either directly or indirectly at or before or any time after the marriage and in connection with the marriage of the said parties. Therefore, the giving or taking of property or valuable security must have some connection with the marriage or the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential. Being a penal provision it has to be strictly construed. Dowry is a fairly well-known social custom or practice in India. It is well-settled principle of interpretation of statute that if the Act is passed with reference to a particular trade, business or transaction and words are used which everybody conversant with that trade, business or transaction knows or understands to have a particular meaning in it, then the words are to be construed as having that particular meaning. A demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. The evidence adduced by the prosecution does not, therefore, show that any demand for 'dowry' as defined in Section 2 of the Dowry Prohibition Act was made by the appellants as what was allegedly asked for some money for meeting domestic expenses and for purchasing manure. Since an essential ingredient of Section 304B IPC viz. demand for dowry is not established, conviction of the appellants cannot be sustained.
33. The allegation against the accused appellant is that the said money was demanded by him and his parents for doing some better business. The demand of money for starting some better business wound not fall under the definition of 'dowry'. Moreover, PW1 Laxmi Chand, the complainant and father of the deceased as well as PW2 Smt. Dayawanti, the mother of the deceased have stated in their deposition that no such demand was made before the marriage or at the time of marriage. It was allegedly made 4-5 days before the said incident. The deceased consumed the poison. Her husband i.e. the accused appellant immediately informed his in-laws about it. She was immediately taken to the hospital by accused appellant. Hence, in these facts and circumstances, it can safely be inferred that it is not a case of 'dowry death'.
34. In view of foregoing discussion, offence Under Section 304B and 498A IPC is not proved against the accused appellant beyond reasonable doubt and he is entitled to get the benefit of the same.
35. Learned Counsel for the appellant also submitted that the prosecution has not adduced sufficient evidence to prove the case against the appellant accused beyond reasonable doubt. I find substance in the submission of learned Counsel for the appellant for the following reasons:
(i) That Kamlesh @ Simmi (deceased) consumed poison in the evening of 28.3.1987. At that time the accused appellant Jagdishwar Prasad was working at his shop and he was not at his house. His father came at his shop and informed him that Kamlesh @ Simmi was vomiting. Then he went to his house along with his father. He also did immediately inform his in-laws and took his wife to the hospital, where she was medically examined by PW6 Dr. SK Srivastava. At that time PW1 Laxmi Chand, the complainant was also present. He was also one of the Panches mentioned in the inquest report and he did not complain either to police or anybody else that the accused appellant demanded any money for the business or poisoned her daughter to death.
(ii) That the said incident took place at about 8 pm on 28.3.1987 and the FIR could be lodged on 2.4.1987 at 8.30 pm i.e. after four days of the said incident. The delay in lodging the FIR has not been explained by the prosecution by showing the sufficient cause. This delay in lodging the FIR is also fatal to the case prosecution.
(iii) That the complainant PW1 Laxmi Chand, father of the deceased has not supported the prosecution case and was declared hostile. He has stated in his deposition that whatever he had stated in the FIR Ex.Ka-1 was based on heresy and nothing was under his personal knowledge and that people of mohalla told him to lodge the report and, therefore, he lodged the said report. Thus, the main witness of the prosecution itself has not supported the prosecution version.
(iv) That PW2 Dayawanti and PW3 Jagdish have stated that the demand of money was made for business purpose.
(v) That PW4 Smt. Vidyawanti, the neighbourer of the complainant has not stated anything which may be helpful to the case of prosecution.
(vi) That DW1 Ramesh Chand has stated that the appellant was at his shop in the evening of 28.3.1987 and his father came to inform him about the said incident in his presence and thereafter he went to his house.
(vii) That DW2 Fakir Chand Sharma, the neighbourer of the accused appellant, has stated that he and the accused appellant used to visit each other very often. He heard noise coming out of the house of the accused appellant in the evening of 28.3.1987. Thereafter he went there and saw that the wife of the accused appellant (Kamlesh @ Simmi) was not well and she was vomiting. The accused appellant was not at his house. Some people of that mohalla and Smt. Kamla Rani the mother of the accused appellant (appeal of whom has been abated) were present there. In his presence, Madan Gopal, father of the accused appellant went to call the accused appellant from his shop. Kamlesh @ Simmi stated before him that she had consumed poison and she no longer wanted to live. She further stated in his presence that she herself was responsible for consuming the poison and none else was at fault for this. At the same time, parents of Kamlesh @ Simmi had arrived there. The accused appellant and his in-laws immediately took her to hospital.
36. In view of my foregoing discussion and conclusion, the prosecution has failed to prove its case against the appellant beyond reasonable doubt and the appellant is entitled to get the benefit of doubt. As such, the impugned judgment and order dated 19.10.1994 of the trial court is not correct and justified and the same is liable to be set aside.
37. Accordingly, the appeal is allowed. The judgment and order dated 19.10.1994 passed by the Additional Sessions Judge, Roorkee in Sessions Trial No. 323 of 1989, State v. Smt. Kamla Rani and Anr., convicting the appellant Jagdishwar Prasad and Kamla Rani (appeal of whom has been abated) under Section 304B & 498A IPC is hereby set aside. Appellant Jagdishwar Prasad is acquitted of the charges levelled against him and the sentence awarded to him to undergo R.I. for 10 years is hereby quashed. The appellant is on bail. He need not surrender unless required in any other case.
38. Let the lower court record be sent back.