THE HON’BLE SRI JUSTICE R. KANTHA RAO CRIMINAL APPEAL No.339 of 2002 Date:19.8.2010 Between: Kale Narasimha @ Narasimloo and others. …………Appellants/accused A1 to A3. And The State of A.P. rep by Public Prosecutor, High Court of A.P., Hyderabad. …………….Respondents. THE HON’BLE SRI JUSTICE R. KANTHA RAO CRIMINAL APPEAL No.339 of 2002 ORDER: This appeal arises out of the judgment dated 21.3.2002 passed in S.C.No.85 of 1998 on the file of II Additional District & Sessions Judge, Ranga Reddy, N.T.R Nagar, Hyderabad. The appellants/A1 to A3 along with another accused (A4) were tried for the offence under Section 304-B IPC. Pending trial, A4 died and the case against him was abated. After recording the evidence, the learned trial Court altered the charge to one under Section 306 IPC against A1 to A3. At the conclusion of the trial and after hearing both sides, the learned trial Court convicted A1 to A3 for the offence under Section 306 IPC. A1 and A2 were sentenced to undergo rigorous imprisonment for seven years each and also to pay fine of Rs.1,000/- in default of payment of fine to suffer simple imprisonment for three months each, whereas A3 is sentenced to suffer rigorous imprisonment for two years and also to pay fine of Rs.1,000/- and in default of payment of fine to suffer simple imprisonment for three months. Challenging the said order of conviction and sentence, the appellants/A1 to A3 preferred the present appeal. I have heard the learned counsel appearing for the appellants and the learned Public Prosecutor representing the State. Brief facts necessary for considering the present appeal may be stated as follows:- Smt.K.Lalitha herein after called the deceased was married to the 1st appellant (A1) on 7.2.1988. It is said that at the time of marriage, P.W.2 the father of the deceased agreed to pay an amount of Rs.10,000/- as dowry but he could only pay an amount of Rs.2,000/-. The deceased and the 1st appellant lead marital life for about three years, and, thereafter, it is said that the accused started harassing the deceased in connection with the payment of balance of dowry amount. Some mediations took place, wherein the elders tried to convince the appellants not to insist upon the payment of balance of dowry amount. It is also the part of the prosecution story that A2 who is the brother-in-law of the deceased (brother of A1) was insisting upon the deceased either to bring the balance amount of dowry or to agree for sexual intercourse with him. Ultimately, it is said that on 29.11.1995, the deceased consumed pesticide poison at the house of the appellants at Chinchalpet and died. The information relating to the death of the deceased was conveyed to her parents through somebody by the accused stating that the deceased died off snakebite. Thereupon, the parents and other relatives of the deceased arrived at the house of the appellants. In the meanwhile, P.W.1, the Village Administrative Officer, Chinchalpet Village gave a report in Navabpet Police Station informing the death of the deceased basing on which a case in Crime No.59 of 1995 was registered by the police under Section 174 Cr.P.C. Subsequently, after recording the statement of P.W.2, the father of the deceased, section of law was altered to one under Section 304-B IPC and was investigated into by the Sub-Inspector of Police-P.W.10 and P.W.11-the Sub Divisional Police Officer and a charge has been laid after the investigation was over. Before the trial Court, the prosecution in order to prove the guilt of the accused, examined P.Ws.1 to 11, marked Exs.P1 to P9 and M.Os.1 to 3. The appellants did not choose to examine any defence witnesses. Ex.D1 contradiction in 161 Cr.P.C statement of P.W.5 was marked on their behalf. The learned trial Court mainly relying on the evidence of P.W.2, the father, P.W.3 the mother, P.W.4 the sister and P.W.5 an independent witness, convicted the appellants/A1 to A3 for the offence under Section 306 IPC and sentenced A1 and A2 to undergo rigorous imprisonment for seven years each and also to pay fine of Rs.1,000/- in default of payment of fine to suffer simple imprisonment for three months each, whereas A3 was sentenced to suffer rigorous imprisonment for two years and also to pay fine of Rs.1,000/- and in default of payment of fine to suffer simple imprisonment for three months. The point for determination in this appeal is whether the conviction and sentence recorded by the trial Court against the appellants can be sustained. The evidence of P.W.1, the Village Administrative Officer is of no importance. In his Ex.P1 report he merely informed about the death of the deceased in Nawabpet Police Station. He did not even visit the house of the accused prior to lodging the report. Absolutely, he has no knowledge about the cause of the death of the deceased also his report is based on the information conveyed to him by some villagers. P.Ws.2 to 4, who are the close relatives of the deceased, however, stated in their deposition that as against the agreed amount of Rs.10,000/-, they gave only Rs.2,000/- to the 1st accused and they also gave some utensils worth of Rs.2,000/- at the time of marriage. According to them, the deceased and A1 lived happily for a period of five years, and, thereafter, all the appellants started harassing the deceased to get the balance amount of dowry and they also stated that A2 was saying to the deceased either to bring the dowry amount or satisfy his lust. All of them stated that being unable to bear the harassment meted out to her ultimately the deceased resorted to the extreme step of committing suicide by consuming pesticide poison. The version of these witnesses was relied upon by the trial Court to record a conviction under Section 306 IPC. P.W.5 an independent witness stated in his deposition about P.W.2 promising the accused to pay dowry of Rs.10,000/- but giving only Rs.2,000/- and some household articles worth Rs.2,000/- and two months prior to her death the deceased informing her parents about A2 pulling her hands and the elders convened Panchayat etc facts. But this witness admitted in the cross-examination that he does not know the terms of the marriage and that he was not present at the time of paying any amount or giving any articles at the time of marriage and thus the evidence of this witness, which was relied upon by the learned trial Court, is of not much consequence. There is no dispute about the fact that the deceased died homicidal death at the house of the accused. Her death had taken place more than seven years after the marriage and for that reason the learned trial Court altered the charge from Section 304-B IPC to 306 IPC. The question, therefore, is whether the evidence of P.Ws.1 to 5 can be disbelieved, and even if it is believed whether it constitutes an offence under Section 306 IPC. In the statement made by P.W.2-the father of the deceased stated that against the agreed dowry of Rs.10,000/- he could only give Rs.2,000/-. The evidence of P.Ws.1 to 4 before the trial Court is that for a period of five years, A1 and the deceased lived happily. Whereas in Ex.P2 statement of P.W.2, he stated that the couple lead conjugal life happily for a period of two years and thereafter, the appellants started harassing the deceased for the balance amount of dowry. The incident took place on 29.11.1995, P.W.2 though reached the house of the accused on the very same day lodged the report on the next day at 9.00 A.M., and the report is lacking in important details like how he came to know about the death of the deceased and in what manner the appellants used to harass the deceased to bring the dowry amount. It is pertinent to note that in Ex.P1 report, he did not mention about A2 demanding the deceased either to bring dowry amount or to satisfy his lust. This is an important fact which P.W.2 ought to have mentioned while he was examined by the S.I of Police. The omission of this important fact creates any amount of doubt regarding the veracity of the prosecution story. Admittedly, P.W.2 is an agricultural labourer and his agreeing to pay Rs.10,000/- as dowry, paying only an amount of Rs.2,000/- at the time of marriage and promising to pay the remaining amount subsequently does not appear to be convincing. Further, only sweeping allegations were made by P.Ws.1 to 4 that the accused were harassing the deceased to bring the balance amount of dowry but they did not mention the specific instances, how and when the deceased was subjected to harassment by them in connection with the payment of dowry. Further, I would like to state that to attract the offence of abatement of suicide punishable under Section 306-IPC, the abatement must be by one of the modes indicated in Section 107 of the IPC i.e., either by instigation or by conspiracy or by intentionally aiding by doing an act or legal omission. The person who is said to have abated the commission of suicide must be having either of three mental elements mentioned in Section 107 IPC. Unless the accused visualized the consequences, which fallow their doing a particular act or legal omission, they cannot be held liable for punishment under Section 306 IPC. Thus in the instant case, even if the entire evidence on record, is believed it is not possible to convict the appellants (A1 to A3) for the offence under Section 306 IPC. The trial Court, therefore, in my view had fallen into grave error in appreciating the evidence of P.Ws.1 to 5 and coming to the conclusion that the material on record attracts the offence punishable under Section 306 IPC. In the result, the Criminal Appeal is allowed, setting aside the impugned judgment, dated 21.3.2002, in Sessions Case No.85 of 1998, passed by the II Additional District & Sessions Judge, Ranga Reddy District, in convicting the Accused Nos.1 to 3 for the offence under Section 306 I.P.C., and, accordingly, they are acquitted of the said offence and they shall be set at liberty, forthwith, if not required in any other case. The fine amount, if any, paid by the appellants-A1 to A3 shall be refunded to them. The bail bonds, if any, shall stand cancelled. _________________________ JUSTICE R. KANTHA RAO Date:19.08.2010 mrb