HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.33 of 2006 JUDGMENT: The appellant/A.1 was convicted by the lower Court under Section 306 IPC and was sentenced to rigorous imprisonment of three years and fine of Rs.3,000/-; and was also convicted under Section 498-A IPC and was sentenced to rigorous imprisonment of 2 years and fine of Rs.2,000/-. Questioning the same, A.1 alone filed this appeal. 2. Though originally charge sheet was filed against A.1 to A.4, the case against A.4 stood abated as he died. A.1 to A.3 faced trial before the lower Court. After trial, the lower Court acquitted A.2 and A.3 of the charges and convicted A.1 alone for the above charges. 3. Marriage of A.1 with the deceased Rafath Begum took place about 16 years prior to her death. Though it is alleged that dowry of Rs.60,000/- in cash and utensils worth Rs.50,000/- was given at the time of marriage, the said fact may not be relevant for the purpose of this case, as there is no charge under Section 3 of the Dowry Prohibition Act. A.1 and the deceased have five children. PW.4 is eldest of the children. It is alleged that A.1 started harassing the deceased for additional dowry from her parents both mentally and physically and was beating her. On 26.06.2003, Rafat Begum was admitted in PW.11’s private hospital called Harmain hospital. As her condition was serious, she was shifted to Yashoda hospital, Malakpet, Hyderabad where she was declared dead. PW.5 Associate Professor, Forensic Medicine, Osmania Medical College, who conducted autopsy on dead body of the deceased gave Ex.P.2 post-mortem certificate; and after seeing Ex.P.6 FSL report, he gave Ex.P.3 final opinion to the effect that the deceased died due to organo phosphate poison. Plea of A.1 is one of not guilty. 4. It is contended by the appellant’s counsel that evidence of prosecution witnesses is highly discrepant and is with full of omissions and contradictions from their respective previous statements and that there is no legal evidence to show that the deceased was harassed by A.1 muchless for the sake of additional dowry and presents and that the said conduct drove the deceased to commit suicide. It is also contended that Section 113-A of the Indian Evidence Act relating to presumption as to abetment of suicide has no application herein since marriage of the deceased with A.1 took place 16 years prior to her death. It is true that in order to apply presumption under Section 113-A of the Indian Evidence Act as to abetment of suicide by a married woman, the suicide should have been within a period of 7 years from the date of her marriage. In the absence of availability of presumption under Section 113-A of the Evidence Act, it has to be seen whether the prosecution has made out by independent evidence that there was abetment of the deceased to commit suicide by A.1. 5. PWs 1 to 4 and 6 are the relevant witnesses to speak to the conduct of A.1 towards the deceased during her marital life with him. PWs 2 and 3 are parents, PWs.1 and 6 are brothers and PW.4 is son of the deceased. After death of the deceased, PW.1 gave Ex.P.1 report to PW.8, who was the then Sub-Inspector of Police, Falaknuma Police Station on 26.06.2003 at 23.40 hours. PW.8 registered Ex.P.1 as case in Cr.No.135 of 2003 under Sections 498-A, and 306 IPC and issued Ex.P.5 F.I.R. PW.8 took up investigation into the case, examined witnesses, conducted inquest on dead body of the deceased in the presence of panchayatdars including PW.7 under the cover of Ex.P.4 inquest report. He also arrested A.1 on 27.06.2003. PW.9 is the Inspector of Police, Falaknuma Police Station, who filed charge sheet in this crime before the Magistrate after collecting all the documents from the concerned. 6. It is evidence of PW.1 that since three months after the marriage, A.1 started harassing the deceased by demanding additional dowry of Rs.20,000/-, Rs.40,000/- and so on and that A.1 used to insist the deceased to bring amounts from her father for travelling expenses to go to Dubai and that in the year 1988, his father gave Rs.25,000/- to A.1. A.1’s sister was at Dubai. Therefore, A.1 was frequenting to Dubai and for meeting travelling expenditure, according to PW.1, he was demanding money from parents of the deceased. It is evidence of PWs. 1, 3 and 6 that on the demand of A.1, they gave Hero Honda motor cycle. Though there is discrepancy with regard to the description of the said vehicle as Splendor or Passion, their evidence is consistent with regard to giving of the said two wheeler to A.1. It is evidence of PW.3 that she gave Rs.15,000/- to her son, who made initial payment for the two wheeler and gave the same to A.1. The subsequent instalments are stated to have been paid by A.1 himself. It is evidence of PW.1 that PW.4 came and informed him about A.1 beating the deceased to bring Rs.40,000/- from her parents during night inspite of the deceased not keeping good health and that as it was late in the night, he (P.W.1) asked PW.4 to go home so that he would talk about the matter in the next morning. In the next morning, news was received to the effect that the deceased was admitted in Harmain Hospital for treatment. It is evidence of PW.1 that his sister died due to continuous harassment both mentally and physically caused by the accused. 7. Even though PW.2 stated about A.1 demanding amount like Rs.5,000/-, Rs.1,000/-, R.2,000/-, Rs.4,000/- several times for consuming alcohol, it is elicited in his cross-examination that he did not state the same to the police during investigation. There is lot of evidence let in with regard to A.1 attacking PW.6 with knife causing injury to him on his back about one month prior to death of the deceased; and also about A.1 behaving highhandedly towards PW.6 after death of the deceased in Yashoda hospital by pushing down PW.6 in that hospital into Cellar, due to which PW.6 suffered fracture/dislocation of shoulder. The said incidents are not relevant herein for the purpose of deciding truth or otherwise of the charges framed against A.1. Suffice it to say, it is elicited in cross- examination of PW.6 that he mentioned in his report to the police dated 19.05.2003 (relating to the incident of A.1 hacking the deceased with knife on his back) that his sister and brother-in-law used to quarrel with each other and that his sister used to come to their house for shelter and that after 3 or 4 days, she used to return to her house and that because of giving shelter to their sister, A.1 bore grudge against them. It is contended by the appellant’s counsel that PW.6 admitted in cross-examination that he did not mention in the said report about A.1 subjecting his sister to harassment. Though PW.6 did not state in his previous report to the police mentioning the word “harassment”, PW.6 has narrated the previous incidents as to how there were quarrels between the deceased and A.1 due to which the deceased used to come away to her parents’ house. This description of events amounts to harassment of the deceased by A.1. 8. Even though PWs 2 and 3 gave certain details of A.1 harassing the deceased, in cross-examination, it is elicited that those details are not stated by them to the Investigating Officer during investigation. An additional fact, which PW.3 brought to light, is that A.1 after birth of 4th son through the deceased, married second wife and increased harassment of the deceased. Though this fact was not disclosed by PW.3 in her previous statement to the police, it is not denied in her cross-examination about A.1 marrying a second wife. Of course, marrying a second wife is permissible for A.1 as the parties belong to Muslim religion. PW.4 says that his father was always beating his mother for one reason or another and as he was addicted to alcohol, used to come home in drunken condition and used to abuse his mother in very filthy language. PW.4 further deposed that on the previous night of the occurrence, his father came to house in drunken condition and beat his mother and demanded her to bring amounts from her uncle or from her brother’s house. He says that even though his mother started vomiting, A.1 did not care. He says that he went to PW.1’s house and PW.1 told him that he would come in the morning. On the next morning, the deceased died. The entire narration of above events stated by PWs 1 to 4 and 6 reveal that the deceased was subjected to cruelty as envisaged under explanation to Section 498-A IPC and that by the wilful conduct on the part of A.1 he drove the deceased to commit suicide by consuming pesticides poison. But, the above evidence is not sufficient to find that A.1 was guilty of abetting the deceased to commit suicide. 9. Therefore, I find that though the prosecution was able to prove guilt of A.1 under Section 498-A IPC, failed to make out the offence under Section 306 IPC against him. The sentence of imprisonment of two years awarded by the lower Court under Section 498-A IPC to A.1 is reasonable and appropriate. 10. In the result, the appeal is partly allowed setting aside the conviction and the sentence passed by the lower Court against the appellant/A.1 under Section 306 IPC; and the appeal is partly dismissed confirming the conviction and the sentence passed by the lower Court against the appellant/A.1 under Section 498-A IPC. ____________________________ SAMUDRALA GOVINDARAJULU,J Dt. 5th November, 2011. PNV