THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2619 of 2004 JUDGMENT: The accused/appellant was convicted by the lower Court under Section 306 IPC and was sentenced to rigorous imprisonment of three years and fine of Rs.1,000/-. Questioning the same, the accused filed this appeal. The accused married the deceased Ayesha Siddiqua @ Reshma on 25-08-2002. It was a love marriage between the two and without consent of PWs.1 and 2 who are parents of the deceased. Both of them lived in a room taken on rent from PW-4. It is alleged that since the time of marriage the accused used to humiliate the deceased insulting in filthy language and used to manhandle her on petty issues and used to lock the house from outside while keeping the deceased inside the house whenever he goes out of the house. It is further alleged that on 10- 06-2003 during night the accused slapped the deceased on petty matter and went out of the house and that during that time the deceased vexed with her life with the accused, committed suicide by hanging herself to the ceiling of her house. Plea of the accused is one of not guilty. Even though the lower Court framed the charge against the accused under Section 304-B IPC, after trial, the lower Court found the accused guilty under Section 306 IPC. It is contended by the appellant’s counsel that there is no legal evidence before the Court for finding the accused guilty under Section 306 IPC and that the entire evidence of PWs.4 and 5 on the basis of which the lower Court recorded its finding, is only development during trial in the lower Court without any basis in the investigation record. PW-1 is father of the deceased. PW-2 is mother of the deceased. PW-3 is PW-1’s co-brother. PW-4 is the landlady in whose house the accused and the deceased lived together on rent. PW-5 is paternal aunt of the deceased. PW-1 had no direct knowledge about the affairs between the deceased and the accused, as he never visited their house. PW-1 is stated to have been informed about the deceased and the accused whenever PW-2 visited their house. This evidence of PW-1 is based on hearsay. Similarly evidence of PW-3 is also based on hearsay, as to what he gathered from PW-1. Even though PW-2 deposed about the accused locking the room by keeping the deceased inside whenever he goes out of the house, this fact was not stated to the police by PW-2 when the Investigating Officer PW-12 recorded her statement under Section 161 (3) Cr.P.C. PW-4 who is the landlady did not state about the accused locking room by keeping the deceased inside while leaving the house. Apart from there being no corroboration for PW-2’s evidence in this regard, it is also a development in her evidence without any basis in her statement to the police. PWs.4 and 5 speak to an incident which took place about 15 days prior to the deceased committing suicide. It is their evidence that on petty disputes there was quarrel between the accused and the deceased and the accused beat the deceased causing bleeding injuries to her, when the deceased left house of the accused and went to PW- 5. According to PW-5, she got the deceased treated by a Doctor for her injury and sent her back on the previous day of the suicide and questioned the accused about his highhanded behaviour against the deceased. The entire above episode spoken by PWs.4 and 5 in their evidence during trial in the lower Court, is a development during trial without any basis in the investigation record i.e., statements of them recorded by PW-12 under Section 161 (3) Cr.P.C. PW-4 admitted in the cross-examination that she did not disclose the said incident to the police during investigation when her statement was recorded. Even though PW-5 denied about she not disclosing that episode to the police, it was elicited in cross-examination of PW-12 that PW-5 did not state to him in her statement about the above facts. Thus, entire crucial evidence of PWs.4 and 5 against the accused is an after thought and subsequent development during trial, which is baseless. The lower Court totally relied upon evidence of PWs.4 and 5 to come to the conclusion that the accused was behaving cruelly towards the deceased. This is a fallacy in judgment of the lower Court. In the absence of any legal basis, the lower Court relied upon the evidence of PWs.4 and 5, even though it had no basis in the investigation record. The question of drawing presumption under Section 113 (A) of the Indian Evidence Act does not arise here because the prosecution failed to prove any cruelty on the part of the accused. In the absence of any legal evidence in favour of the prosecution, the lower Court erred in finding the accused guilty under Section 306 IPC. Accordingly, the appeal is allowed setting aside the conviction and the sentence passed by the lower Court against the accused/appellant and acquitting him. _____________________________ SAMUDRALA GOVINDARAJULU, J October 17, 2011 PN THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2619 of 2004 October 17, 2011 PN