THE HON’BLE SRI JUSTICE B. SESHASAYANA REDDY Criminal Appeal No.325 of 2002 Date:04th March, 2010 Between: P.Pavan Kumar …Appellant/accused and The State of A.P., rep. Public Prosecutor, High Court of A.P., Hyderabad. …Respondent/Complainant *** THE HON’BLE SRI JUSTICE B. SESHASAYANA REDDY Criminal Appeal No.325 of 2002 JUDGMENT: This Criminal Appeal is directed against the judgment dated 11.03.2002 passed in Sessions Case No.290 of 1998 on the file of V Additional Metropolitan Sessions Judge, Mahila Court, Hyderabad, whereby and whereunder the learned Additional Metropolitan Sessions Judge found accused P.Pavan Kumar guilty for the offences under Sections 498-A, 406 IPC and under Sections 4 and 6 of the Dowry Prohibition Act and convicted him accordingly and sentenced him to suffer Imprisonment for one year and pay a fine of Rs.10,000/-, in default, to suffer simple imprisonment for three months for the offence under Section 498-A IPC; imprisonment for one year for the offence under Section 406 IPC and imprisonment for six months each for the offences under Sections 4 and 6 of the Dowry Prohibition Act. Out of the fine amount of Rs.10,000/- imposed for the offence under Section 498-A IPC, an amount of Rs.7,500/- has been ordered as compensation to PW.1 P.Vijayalakshmi. All the substantive sentences are directed to run concurrently. A further direction has been given under Section 6(3) of the Dowry Prohibition Act, to the appellant/accused to transfer the amount of Rs.60,000/- paid to him towards dowry, 20 tolas of gold and household articles worth of Rs.50,000/- to PW.1 Smt.P.Vijayalakshmi, within two months from the date of judgment. 2. The prosecution case in brief is:- Accused P.Pavan Kumar married PW.1 P.Vijayalakshmi on 21.05.1987. At the time of marriage, Rs.60,000/- cash, 20 tolas of gold and household articles were presented. By the date of marriage, the accused was an unemployee. Father of PW.1 was requested to secure employment for the accused at Hyderabad. Father of PW.1 secured employment to the accused at Hyderabad. The accused shifted his residence to Hyderabad. He used to quarrel with PW.1 once in two or three days and demand her to bring money from her parents. He demanded PW.1 to bring Rs.50,000/- for purchasing a vehicle. Thereupon, father of PW.1 paid Rs.60,000/- to him. Because of the harassment, PW.1 suffered abortion of pregnancy. Father of PW.1 went to Bowinapally P.S. and reported against the accused. Police summoned the accused and PW.1 for settling the issue. Father of PW.1 suffered heart attack and died. PW.1 has younger sister by name Kavitha. The accused harassed PW.1 to get Kavitha married to him. The accused filed a petition being O.P.No.159 of 1989 on the file of the District Judge, Warangal, for restitution of conjugal rights. Subsequently, he withdrew the O.P. The accused lost his job and shifted his residence to Hyderabad in the last month of 1991. Eversince the accused shifted his residence to Hyderabad, he started harassing PW.1 to get her sister Kavitha married to him and give him a dowry of Rs.50,000/- or transfer the house bearing No.8-3-223/341 at Rahmath Nagar, Hyderabad on his name. PW.1 gave birth to first male child on 24.02.1992. While she was carrying second advanced pregnancy, the accused took her to Hussain Sagar on 04.12.1995 at about 11.00 A.M. and attempted to push her. Later, the accused took her to Srinivas Hospital at Yousufguda and thereafter to Krishna Hospital, where she gave birth to a second male child. In April, 1996, the accused sent PW.1 to her parents house. Thereafter, he never cared to take her for conjugal association. It is further alleged that when PW.1 attended the Civil Court in connection with the divorce petition filed by the accused, the accused beat her and thereby she received bleeding injuries on her back. Police sent her to Osmania Hospital for treatment. PW.1 presented Ex.P1 complaint before XXII Metropolitan Magistrate, Hyderabad. The learned Metropolitan Magistrate referred the complaint to the Station House Officer, Jubilee Hills Police Station, under Section 156(3) Cr.P.C. Thereupon, PW.5 Y.Madhusudan Rao, Sub-Inspector of Police, Jubilee Hills P.S. registered a case in Crime No.75 of 1997 for the offences under Sections 498-A, 406, 506, 307 and 500 IPC and Sections 4 and 6 of the Dowry Prohibition Act and issued Ex.P6 FIR. PW.6 Khaja Moinuddin, Sub-Inspector of Police, Jubilee Hills P.S. received the case file from PW.5 on 10.05.1997 and examined PWs.1and 2 and recorded their statements under Section 161 Cr.P.C. PW.7 E.Shankar Reddy, successor in office of PW.6, took-up investigation on 24.05.1997, effected arrest of the accused and sent him for remand. He examined PWs.3 and 4 on 26.05.1997 and recorded their statements under Section 161 Cr.P.C. After completing the investigation, he laid charge-sheet in the court of V Metropolitan Magistrate, Hyderabad. 3. The learned Metropolitan Magistrate took the charge-sheet on file as P.R.C.No.17 of 1998 and committed the case to the Metropolitan Sessions Division, Hyderabad, as the offence under Section 307 IPC is exclusively triable by a Court of Session. The learned Metropolitan Sessions Judge took the case on file as Sessions Case No.290 of 1998 and made over the same to the Court of V Additional Metropolitan Sessions Judge, Mahila Court, Hyderabad, for disposal according to Law. 4. Learned Additional Metropolitan Sessions Judge, on hearing the prosecution and the accused, framed charges under Sections 498- A, 406, 307, 506 IPC and Sections 4 and 6 of the Dowry Prohibition Act, read over and explained the charges to the accused, for which the accused pleaded not guilty and claimed to be tried. 5. To bring home the guilt of the accused for the offences with which he stood charged, prosecution examined 7 witnesses and proved 6 documents. The plea of the accused is one of total denial of the case. The accused marked 8 documents on his behalf. 6. The learned Additional Metropolitan Sessions, on appreciation of the evidence brought on record and on hearing the prosecution and the accused, found the accused guilty of the offences under Sections 498-A and 406 IPC and under Sections 4 and 6 of the Dowry Prohibition Act and convicted him accordingly and sentenced him as stated supra, by judgment dated 11.03.2002. Hence, this criminal appeal. 7. Heard Sri C.Praveen Kumar, learned counsel appearing for the appellant/accused and learned Additional Public Prosecutor appearing for the respondent/State. 8. Learned counsel appearing for the appellant/accused submits that the trial Court having disbelieved the evidence of PW.1 in respect of dowry demands, committed an error in placing reliance on the self same evidence to record a finding that the accused harassed her on the ground of her not getting her sister married to him. A further submission has been made that PW.1 has not stated before the Court that her parents paid cash of Rs.60,000/- and presented 20 tolas of gold to the accused at the time of marriage and in which case, the conviction of the appellant/accused for the offence under Section 406 IPC and under Sections 4 and 6 of the Dowry Prohibition Act is wholly unsustainable and the same is liable to be set aside. The learned counsel also contends that there is no consistency in the evidence of PW.1 with regard to the alleged demand of the accused to get Kavitha, who is her sister, married to him. In support his submissions, reliance has been placed on the decisions of the Supreme Court in Girdhar Shankar Tawade v. State of Maharashtra[1]; Manju Ram Kalita v. State of Assam[2] and the decision of this Court in Public Prosecutor v. Veldendi Jaya Prakash[3]. 9. Learned Additional Public Prosecutor appearing for the respondent/State submits that the evidence of PW.1 is amply corroborated by the evidence of PWs.2 and 3 with regard to the demand of the accused to get Kavitha, who is the sister of PW.1, married to him and harassment pursuant thereto and therefore, the conviction of the appellant/accused for the offences under Sections 498-A, 406 IPC and Sections 4 and 6 of the Dowry Prohibition Act is legal and proper and the same is not required to be interfered with in this appeal. 10. The point that arise for consideration in this \appeal is, whether the conviction of the appellant/accused for the offences under Sections 498-A, 406 IPC and Sections 4 and 6 of the Dowry Prohibition Act is legal and proper? 11. Before adverting to the factual score, it is to be noticed at this juncture that Section 498-A has been engrafted on to the statute-book by way of a separate Chapter in terms of the provisions of the Criminal Law (Second Amendment) Act, 1983 (Act 46 of 1983). The above amendment stands incorporated by reason of the present trend in the society and to meet the requirement of the society. The legislature thought it fit to incorporate a new Chapter being Chapter XX-A in the statute-book consisting of Section 498-A in the Indian Penal Code. For convenience sake, Section 498-A is set out herein below:- “498-A. 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”. 12. The basic purport of the statutory provision is to avoid “cruelty” which stands defined by attributing a specific statutory meaning attached thereto as noticed hereinbefore. Two specific instances have been taken note of in order to ascribe a meaning to the word “cruelty” as is expressed by the legislatures: whereas Explanation (a) involves three specific situations viz., (i) to drive the woman to commit suicide or (ii) to cause grave injury or (iii) danger to life, limb or health, both mental and physical, and thus involving a physical torture or atrocity, in Explanation (b) there is absence of physical injury but the legislature thought it fit to include only coercive harassment which obviously as the legislature intend expressed is equally heinous to match physical injury; whereas one is patent, the other one is latent but equally serious in terms of the provisions of the state since the same would also embrace the attributes of “cruelty” in terms of Section 498-A. 13. At this juncture, it would also be profitable to notice the other statutory provision (Section 406) relevant in the present context. Section 406 of the Code reads as below: “406. Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both”. The essential ingredients for constituting an offence under Section 406 are:- (1) Entrusting any person with property or with any dominion over property; (2) The person entrusted (a) dishonestly misappropriating or converting to his own use that property; or (b) Dishonestly using or disposing of that property or willfully suffering any other person so to do in violation (i) of any direction of law prescribing the mode in which such trust is to be discharged, or (ii) of any legal contract made touching the discharge of such trust 14. The offence consists of any of four positive acts, namely, misappropriation, conversion, user, or disposal of property. Neither failure to account nor breach of contract, however dishonest, is actually and by itself the offence of criminal breach of trust. The words “in any manner” do not enlarge the term “entrustment” itself and, unless there is entrustment, the transaction in question cannot be affected by the terms of that section. The word `entrusted’ is not a term of law. In its most general significance all it imports is a handing over of the possession for some purpose, which may not imply the conferring of any proprietary right at all. The expression “entrustment” carries with it the implication that the person handing over any property or on whose behalf that property is handed over to another, continues to be its owner. In order that money be “entrusted” to the accused person, it should be transferred to him in circumstances which show that, notwithstanding its delivery, the property in it continues to vest in the prosecutor and the money remains in the possession and control of the accused as a bailee and in trust for the prosecutor as a bailor, to be restored to him or applied in accordance with his instructions. 15. The trial Court had considered three aspects as to whether the appellant-accused subjected his wife Pw-1-Smt.Vijayalakshmi to cruel treatment, harassment and illegal demands to attract the provisions of Section 498-A IPC. The three aspects are: Firstly; demand of the accused to pay additional dowry of Rs.50,000/-, secondly; torturing Pw-1-Vijayalakshmi to get her younger sister Kavitha also married to him and thirdly; the accused attempting to kill Pw-1-vijayalakshmi when she was carrying 2nd pregnancy by throwing her into Hussain Sagar. 16. Of the three aspects, the trial Court did not believe the aspects 1 and 3, while believing the aspect No.2. The trial Court mainly based on Ex.P-5 letter and the evidence of Pw-1 to draw a conclusion that the accused tortured Pw-1 to get her younger sister Kavitha also married to him. For better appreciation, I may refer the relevant portion of the judgment impugned in the appeal, which reads as hereunder:- “13. The second aspect of the cruelty alleged is that accused was demanding Pw-1 to get her sister Kavitha also married to him and was torturing her. Pw-1 has stated that accused demanded her and tortured her. Pw-2 the mother of Pw-1 also did state so. Pw-3 Smt.Chandramma, a woman who claimed that she worked as servant maid at the house of Pw- 1, on request from Pw-2, also claimed that to her knowledge accused made such demands and tortured Pw-1 by subjecting her to physical cruelty. Further,Pw-4 Sri K.Satyam, the owner of the house in which Pw-1 and the accused lived as tenants also stated that he used to hear quarrels between Pw-1 and the accused frequently, that always the doors of their house remained closed, that when he questioned the accused he stated to Pw-4 that he does not know anything. While pw-4 was under chief examination he denied his knowledge as to why the quarrels were taking place between Pw-1 and the accused, but when he is subjected to cross examination for prosecution, after he was declared as hostile witness, he stated that in his earlier statement made to the police, he said the accused and Pw-1 were tenants to a room of their house for one and half year and that during that period he found the accused harassing his wife physically and mentally, always demanding for additional dowry and also subjecting her to cruel treatment by demanding her that she should get her younger sister also married to him and also threatening her and his in-laws with dire consequences and also that Pw-4 tried to pacify the accused, but he paid deaf ear to it. Pw-4 is subjected to long cross examination for defence but to no avail. On the other hand while he was under cross-examination, it is be elicited from him that he observed the accused twice or thrice beating Pw-1 and he questioned the accused against the same. He also further claimed that when Pw-2 visited that house, he stated to her that since there were such quarrels it was causing nuisance to him and that she was to make them vacate the house by Pw-1 and the accused. 14. The above discussed evidence is showing that the evidence of Pw-1 that she was being tortured by the accused with a demand that she was to get marry her younger sister Kavitha also to him is drawing corroboration from the evidence of Pws. 2 to 4. 15. Further, Ex.P-5 is the letter which is claimed to be given by the accused. Pw-2 stated that as her second daughter Kavitha was unable to bear the demands being made by the accused that he would marry her also and also as he was proclaiming that he would see how she would marry another man and would lead happy marital life and harassed her, she went away with an intention to commit suicide, that the acquaintances of Pw-2 and her family brought her back home, that when the accused was questioned he gave Ex.P- 5 letter. 16. Ex.P5 is the letter marked through Pw1. She categorically claimed that this letter is in the handwriting of the accused. This fact is not denied. On the other hand, it is put to Pw-1, while she was under cross-examination, that this letter was obtained forcibly from the accused due to the grudge that he gave a report against the brothers of Pw-1 at Bownepally on the ground that they attacked him. She denied the truth of the said suggestion. This suggestion must have been put to Pw- 1 by the learned defence counsel on instructions from the accused. It is an untenable contention and it is making it clear that the defence has admitted that Ex.P-5 is the letter which is in his own hand writing. 17. The contents of Ex.P-5 dated 30-11-95 are to the effect that the accused intended to marry Kavitha, that due to him she got troubles that he forcibly made Kavitha to write a letter to him, that due to him if any harm is caused either to Kavitha or to his wife, he is agreeing that he alone is responsible for it, that from the date of this letter he would conduct himself as per the advise given by the people to whom the said letter is given, that on 29-11-95, Kavitha went away from the house due to the accused alone as he pressurized her that he would marry her, that he was promising that he would not attack his wife also any more and that this is the letter willfully written and given by the accused. 18. No doubt the word witness (Sankshulu) is mentioned under neath this letter, but no attestors’ signatures are available. But this letter contains the signature of the accused. It is not addressed to any specific person, but it has come into the evidence from the custody of Pws.1 and 2. Therefore, one can reasonably understand that this letter was given to Pw-1 and her people. When the contents of Ex.P5 letter which are referred supra are considered in the light of the evidence of Pws.1 to 4, a fact which can clearly be seen is that the contention of the prosecution that accused intended to marry Kavitha, the younger sister of Pw-1, made demands against Pw-1 and Kavitha also, to get such wise fulfilled and also attacked Pw-1. 19. The explanation for giving Ex.P-5 letter on the part of the accused, given by way of giving suggestion put to Pw-1 and which is referred supra, is appearing to be containing an improbable version. If the accused has given a report against the brothers of Pw-1, he cannot and need not be pressurized into giving a false letter to Pw-1 and others. Further, even though there is exchange of notices between the accused and Pw-1 and also substantial litigation, by way of maintenance case and divorce petition, proceeded with, between them, subsequent to the date of Ex.P-5, nowhere the accused has claimed that a letter with false averments was forcibly taken from him by the brothers of Pw-1, at any point of time. Therefore, I hold that there is no substance in the contention of the defence with this regard. 20. In view of the foregone discussions, I hold that prosecution established beyond reasonable doubt that accused made an illegal and untenable and cruel demands against Pw-1 that she was to get her younger sister Kavitha also married to him, pressurized the said Kavitha also to marry him and also tortured Pw-1 while making such demands and that thereby he subjected Pw-1 to mental harassment of such an extent which will certainly cause damage to her health, and also physical harassment”. 17. Before examining as to how far the findings recorded by the trial Court are sustainable, it is apposite to refer the observations made by the Additional Family Court in maintenance proceedings initiated by Pw-1 against the appellant-accused. It is a matter of record that the findings recorded by the Family Court on maintenance application reached finality since Pw-1 did not chose to challenge the order passed therein. The appellant-accused is a double postgraduate. Despite his being a double postgraduate, he worked for some time in a tailoring shop as a worker on contract basis. Pw-1 filed M.C.No.50 of 2009 claiming maintenance to herself and her two minor children. Pw- 1 pleaded in the maintenance case that the appellant-accused demanded her to get her sister Kavitha also married to him and harassed her on that score. The Family Court on through appreciation of the evidence brought on record, disbelieved the version of Pw-1. I deem it appropriate to refer the relevant portion of the order passed in M.C.No.50 of 2009, which reads as follows:- “ It is the contention of the first petitioner that since the date of marriage the respondent is harassing her for additional amount and thereafter the respondent started harassing her for arranging his marriage with her younger sister and beating her. He sent her away from his house in 1996. As observed supra, the evidence of the first petitioner that the respondent started harassing her for not arranging his marriage with her younger sister is not corroborated by any evidence. There is neither independent oral evidence or documentary evidence. In such a case, the only oral evidence of the first petitioner, cannot be relied upon.” The certified copy of the order has been marked as Ex.D-7 through Pw-1 in cross-examination. 18. Keeping these background facts in view, the evidence of PWs.1 to 3 is required to be evaluated. Pw-1 is the defacto complainant. Pw-2 is her mother, Pw-3 is maid servant in the house of Pw-2, Pw-4 is the owner of the house, wherein the accused along with Pw-1 reside as tenants, Pw-5 is the Inspector of Police, Jubileehills at the relevant point of time. He received Ex.P-4 report from the Court of XXII Metropolitan Magistrate, Hyderabad and registered a case in Crime No.75 of 1997 under Sections 498-A, 406, 506, 307, 500 of IPC and Sections 4 and 6 of Dowry Prohibition Act and issued Ex.P-6 F.I.R. Pws.6 and 7 are the Investigating Officers. 19. Pw-1 deposed that the accused was demanding her to get her sister Kavitha married to him from the beginning. It is admitted by Pw- 1 that the appellant-accused got issued Ex.D-1 notice dated 17.3.1989 directing her to come and join with him for conjugal life. Pw-1 issued Ex.D-2 reply notice dated 25.3.1989. A rejoinder, copy of which has been exhibited as Ex.D-3, came to be issued by the appellant- accused. Ex.D-2 reply notice does not speak of the appellant- accused demanding Pw-1 to get her sister Kavitha married to him. So, the version of Pw-1 that since the beginning the appellant-accused has been demanding Pw-1 to get her sister marked to him, falls to the ground. Pw-1 also admits in cross-examination that it is the appellant- accused who got her admitted in a hospital on 14.12.1995 for second delivery. After 2nd delivery, Pw-1 stayed with the appellant-accused till April, 1996 and thereafter, the appellant-accused sent