THE HON’BLE MR JUSTICE R. KANTHA RAO CRIMINAL APPEAL NO. 141 of 2004 AND Tr.CRIMINAL APPEAL NO. 1398 of 2008 AND CRIMINAL R.C.NO. 1020 of 2003 Date:05.08.2009 CRIMINAL APPEAL NO. 141 of 2004 Between: The Public Prosecutor, High Court of A.P.Hyderabad. …Appellant And Eluri Srinivasa Rao and two others …Respondents. Tr.CRIMINAL APPEAL NO. 1398 of 2008 Between: Eluri Srinivasa Rao …Appellant And State of A.P. through SHO Arundelpet,P.S. Rep. By Public Prosecutor. …Respondents. CRIMINAL R.C.No. 1020 of 2003 Between: Dr.G.Lakshmi …Petitioner And Eluri Srinivasa Rao and three others …Respondents. THE HON’BLE MR JUSTICE R. KANTHA RAO CRIMINAL APPEAL NO. 141 of 2004 AND Tr.CRIMINAL APPEAL NO. 1398 of 2008 AND CRIMINAL R.C.NO. 1020 of 2003 COMMON JUDGMENT: Crl.R.C.No.1020 of 2003 is filed by the de facto complainant challenging the order of acquittal passed by the V Additional Munsif Magistrate, Guntur in C.C.No.307 of 2000 against the respondents-accused for the offences under Sections 420, 498-A of IPC and Sections 3 and 4 of Dowry Prohibition Act. 2. Crl.A.No. 141 of 2001 is filed by the State against the respondents-accused challenging the order of acquittal passed by the V Additional Munsif Magistrate, Guntur in C.C.No.307 of 2000 against the respondents-accused for the offences under Sections 420, 498-A of IPC and Sections 3 and 4 of Dowry Prohibition Act. 3 . Crl.A.No.1398 of 2000 is filed by the first accused/appellant in the same case challenging the order of conviction and sentence passed by the trial Court against him for the offence under Section 420 IPC. 4. Originally first accused (appellant) filed Crl.A.No.176 of 2003 on the file of the Court of the VI Additional Sessions Judge (Fast Track Court), Guntur challenging the order of conviction and sentence passed against him by the trial Court for the offence under Section 420 IPC. 5. Pursuant to the orders passed in Transfer Criminal Petition No.122 of 2004, the Crl.A.No.176 of 2003 was withdrawn and transferred to this Court to be heard along with Crl.A.No.141 of 2004 and Crl.R.C.No.1020 of 2003 by this Court and the same was numbered as Transfer Crl.A.No.1398 of 2008. 6. Since the above referred cases viz. Crl.A.No.141 of 2004, Transfer Crl.A.No.1398 of 2008 and Crl.R.C.No.1020 of 2003 arise out of the same judgment passed in C.C.No.307 of 2000, they are taken up for hearing jointly and are being disposed of by the following common judgment. 7. For the sake of convenience, the parties will be referred as the de facto complainant and the accused. 8. The brief facts relevant for considering the above mentioned two appeals and the criminal revision case may be stated as follows: According to the prosecution the de facto complainant (PW- 1) studied MDS, she is the daughter of PW-2 who is a practising advocate at Guntur. PW-1 was privately practising as Dentist. It so happened, PW-2 had seen a classified advertisement in the matrimonial column in Hindu newspaper, contacted A-1 who got published the advertisement for the purpose of fixing up marriage alliance of PW-1 with him. The advertisement is marked as Ex.P- 36. In response to the letter addressed by PW-2, A-1 addressed Ex.P-3 informing that he is an Additional Superintendent of Police and PW-2 has to contact A-2 and A-3 who are their parents at Madhira. Thereafter, on 27.10.2007 PW-2 and PW-5 went to Madhira to the house of A-2 and A-3 for the purpose of negotiating with them with regard to the proposed marriage. It is said that A-2 and A-3 showed a name board to PW-2 which is to the effect that A-1 is an IPS officer, he is working as Additional Superintendent of Police in Research and Analysis Wing (RAW) at New Delhi. They have also stated to PW-2 that their son is an IPS officer. Thereafter, PW-2 showed them the photo of PW-1, A-2 and A-3 on seeing the photo of PW-1, satisfied and expressed their willingness to perform the marriage of A-1 with PW-2. 9. On the invitation of PW-2, A-1 to A-3 came over to Guntur to have discussions about the proposed marriage and they demanded dowry of Rs.5 lakhs and after bargaining by PW-2, they agreed to accept an amount of Rs.4 lakhs. On 06.11.1997 on the date of betrothal PW-1 paid an amount of Rs.3 lakhs to A-1 and A- 3 in the presence of Pws.3 to 5 and a further sum of Rs.75,000/- was agreed to be paid on the date of distributing wedding invitation cards and remaining amount of Rs.25,000/- was retained by PW-2 for the purpose of purchasing clothes for the bride and bridegroom and gold ring for A-1. The marriage of PW-1 with A-1 was performed on 15.11.1997 at Guntur, the marriage was consummated and PW-1 led conjugal life with A-1 at Madhira and also at new Delhi. 10. It was alleged that some time after the marriage, A-1 started demanding PW-1 to get additional dowry and also some money for the purpose of purchasing household articles. PW-2 sent money to A-1 on several occasions. In spite of that, the harassment in connection with additional dowry continued. 11. While so it happened, a case in Crime No.618 of 1997 was registered against A-1 on the allegation that he secured a job (not the post of Additional Superintendent of Police) by producing fake certificates regarding his qualifications and that he did not actually pass B.Tech. In connection with the said crime, A-1 was arrested by the police and was remanded to judicial custody and was sent to Tihar Jail. After 60 days, he was released on bail. After the said incident, it was not clear that A-1 to A-3 cheated Pws.1 and 2 by representing that A-1 is an IPS officer working as Additional Superintendent of Police in RAW, New Delhi and further they have also been harassing Pws.1 and 2 in connection with additional dowry. Thereafter, PW-1 lodged a report in Arundelpet Law and Order Police Station, Guntur on the strength of which PW-8, the Sub-Inspector of Police registered a case in Crime No.185 of 2000 under Sections 498-A and 420 r/w 34 IPC. He investigated into the matter and filed charge sheet. 1 2 . The accused were tried by the V Additional Munsif Magistrate, Guntur for the charges under Sections 498-A, 420 IPC and Sections 3 and 4 of Dowry Prohibition Act. 13. During the course of the trial before the trial Court, the prosecution in order to prove it’s case examined Pws.1 to 8 and marked Exs.P-1 to P-42. The accused did not propose to examine any defence witnesses, but they marked Exs.D-1 to D-22. 14. By its judgment dated 27.03.2003 the learned trial Court acquitted all the accused for the offence under Section 3 and 4 of the Dowry Prohibition Act. The trial Court while acquitting A-2 and A-3 for the offence under Section 420 IPC, convicted A-1 for the said offence and sentenced him to suffer rigorous imprisonment for a period of one year and also to pay fine of Rs.9,000/-. 15. Challenging the above order of acquittal and conviction passed by the trial Court, Crl.A.Nos.141 of 2004, 1398 of 2008 and Crl.R.C.No.1020 of 2003 were filed as stated above. 16. Since the challenge is to the order of acquittal as well as conviction passed by the trial Court by its judgment dated 27.03.2003, the point for determination in the two appeals and criminal revision case is whether the judgment impugned can be sustained or liable to be set aside or requires any modification. 17. In so far as the offences under Sections 498-A and Sections 3 and 4 of Dowry Prohibition Act, though it is admitted that A-1 gave Ex.P-36 advertisement in Hindu daily newspaper and also the subsequent marriage of PW-1 with A-1 after negotiations, the questions requires to be determined is as to whether in fact, whether there was payment of dowry by PW-2 to A-1 to A-3 and was there any harassment caused to PW-1 or subjecting her to cruelty by A-1 to A-3 in connection with demand of dowry. 1 8 . I have heard the learned Additional Public Prosecutor appearing for the State, the learned counsel appearing for A-1 and A-3 and also A-2 in person. 19. It is the evidence of Pws.1 and 2 before the trial Court that an amount of Rs.4 lakhs was agreed to be paid as dowry, on 06.11.1997 PW-2 gave an amount of Rs.3 lakhs to A-1 to A-3, an amount of Rs.75,000/- was agreed to be given at the time of distribution of wedding invitation cards and the balance of Rs.25,000/- was kept with PW-2 for the purpose of purchasing clothes for PW-1 and a gold ring for A-1. Therefore, according to these two witnesses all the accused were present on the date of payment of dowry but in Ex.P-1 report, it is mentioned that on 06.11.1997 A-1 was at Delhi. In view of this material contradiction, it is not possible to believe that A-1 was actually present along with A-2 and A-3 on 06.11.1997 and received the dowry amount. Ex.D-6 contradiction marked in the evidence of PW-1 indicates that on 06.11.1997 an amount of Rs.3 lakhs was paid to A-1in the presence of PW-3, PW-4 and one Krishnamurthy, thereafter A-2 and A-3 counted the amount and they have taken the same. Ex.D- 7 contradiction which was marked in the evidence of PW-7 shows that when PW-2 delayed payment of Rs.75,000/- to A-2 who is the father-in-law of PW-1 came to their house at Guntur with wedding cards and PW-2 paid Rs.75,000/- to A-2 on that day. Ex.D-16 contradiction marked in the evidence of PW-2 also indicates that the amount of Rs.3 lakhs was paid in the presence of Pws.3, 4 and one Krishnamurthy to A-1, A-1 and A-3 counted the amount and thereafter they have taken the same. 20. Whereas PW-3 stated in his deposition before the trial Court that the parents of PW-2 gave Rs.3 lakhs to the accused on the date of betrothal function, he was present on that day and also that PW-2 gave Rs.75,000/- to A-2 and he was also present at that time. Ex.D-18 contradiction marked in the evidence of PW-3 shows that PW-2 gave an amount of Rs.3 lakhs to A-1 by keeping the amount in a plate along with betal leaves, betal nuts and fruits. Since the evidence of PW-3 is in contrast with the contents of Ex.D-18, the learned trial Court rightly held that the presence of PW-3 at the time of alleged payment of dowry is very much doubtful. Ex.D-19 contradiction in the evidence of PW-4 is to the effect that at the time of negotiations he was present, when the issue of dowry came for discussion, A-2 asked an amount of Rs.4 lakhs. In response thereto, PW-2 stated that his daughter is a doctor and has been earning Rs.10,000/- per month. A-2 replied that he has daughters and he has to pay dowry in connection with performances of their marriages and thereafter PW-2 agreed to pay an amount of Rs.4 lakhs. PW-4 also deposed before the trial Court that he attended the betrothal function on 6.11.1997 at the house of PW-2 and in his presence PW-2 gave an amount of Rs.3 lakhs to A-2 and an amount of Rs.75,000/- was agreed to be given at the time of distribution of wedding cards and on the date of distribution of wedding cards, PW-2 paid an amount of Rs.75,000/- to the accused. The evidence of PW-4 therefore goes contra to the evidence of Pws.1 and 2, which is to the effect that PW-2 did not pay the dowry to the accused in the presence of PW-4 and also PW-3. 21. Therefore, in view of the contradictory versions regarding the demand, the time and the manner of alleged payment of dowry, the learned trial Court rightly declined to place reliance on the evidence of Pws.1 to 4. 2 2 . As regards subjecting PW-1 to cruelty, her evidence discloses that while she was in Delhi, she received burn injury while cooking food on kerosene stove, but A-1 did not provide any medical treatment. However, Ex.P-1 report is silent about the said fact and mere not providing treatment even in fact is true, does not amount to subjecting PW-1 to cruelty. It is also her version that A- 1 was demanding an amount of Rs.2 lakhs for the purpose of purchasing chair required for a dentist in the clinic. It is mentioned in Ex.P-1 that PW-2 agreed to give an amount of Rs.1 lakh for the purpose of purchasing the said chair. Further as rightly observed by the learned trial Court PW-1 was practising as dentist at Guntur since long time prior to marriage, she may be having a chair required for a dentist and the question of A-1 insisting upon PW-2 to pay some amount to purchase the said chair is not convincing. 23. The evidence of PW-1 is that PW-2 sent demand draft for Rs.40,000/- with PW-7 to be given to A-1 to meet the demand of A-1 for purchasing household articles, but in fact A-1 did not purchase any household articles. In the chief-examination PW-7 deposed that PW-2 gave him demand draft for Rs.40,000/- drawn on Andhra Bank. In the further chief examination he deposed that he paid cash of Rs.40,000/- to A-1. If the demand draft was actually drawn, the prosecution could have produced documentary evidence in proof of the same instead of trying to elicit the said fact through PW-7 and also in view of the contradictory versions of PW-7 in the chief-examination itself, the evidence in regard to the payment of Rs.40,000/- to A-1 also cannot be believed. The prosecution produced Ex.P-36 indicating that Pws.1 and 2 and another sold away the UTI shares worth Rs.4,89,000/-. According to Pws.1 and 2, the said amount was paid to the accused. But, Ex.P-36 is relevant only for considering selling away of UTI shares but not for payment of dowry to the accused. 24. For all these reasons, the learned trial Court rightly held that the evidence of Pws.1 to 4 and 7 being highly inconsistent and discrepant on the aspect of payment of dowry as well as subjecting PW-1 to cruelty in connection with demand of additional dowry. This Court after evaluating the said evidence independently also finds that the evidence does not inspire any confidence and the learned trial Court rightly acquitted A-1 to A-3 for the offences under Section 498-A IPC and Sections 3 and 4 of the Dowry Prohibition Act. 25. The next aspect relates to the conviction of A-1 for the offence under Section 420 IPC and the acquittal of A-2 and A-3 for the said offence. 26. Ex.P-36 advertisement is in the matrimonial column of Hindu daily newspaper was admittedly published at the instance of A-1. In Ex.P-36 it is clearly mentioned as 'Kapu – 31, Class-I Intelligence Officer, Delhi.' Ex.D-14 is the letter addressed by PW-2 to A-1 to the address mentioned in the advertisement published in Hindu. Ex.P-2 shows that the letter was addressed to the following address: "Dr. Srinivas Rao Eluri, Additional Superintendent of Police (JPIO), B.Tech (Mech.) M.A. (Arch.) Phof.FRPS (India), 2250669 (o) 225622 Control Room." Ex.P-3 is the reply received by PW-2 from A-1. In Ex.P-3 the address of A-1 is mentioned as follows: "Dr.Eluri Srinivasa Rao, B.Tech (Mechanical) M.A., (Arch), Ph.D., FRCS (India), Additional Superintendent of Police, Director General of Security, Cabinet Secretariat, New Delhi, 63-B, Kanchanganga Apartments Sector 53, Nodia, 201 301, Delhi." 27. The learned counsel appearing for A-1 contending that basing on Exs.D-14 and P-3 it cannot be said that the prosecution proved that A-1 in fact furnished the designation as well as the address mentioned therein and therefore, no reliance can be placed on the said two documents. It is not possible to agree with the contention of the learned counsel for the reason that there is no dispute about the fact that in Ex.P-3 which is an admitted document A-1 styled himself as Class-I intelligence officer, Delhi. The evidence of PW- 2 is to the effect that he addressed Ex.D-14 to A-1 after seeing the advertisement and in response thereto A-1 sent reply in Ex.P-3. In view of the sequence of events, which are not disputed, it is not possible to accept the contention of the learned counsel appearing for A-1 that Ex.D-14 and Ex.P-3 were fabricated by PW-1 for the purpose of the case. Exs.P-5 to P-35 are the charge sheet and other documents filed along with the charge sheet in Crime No.618 of 1998 on the file of the Court of Metropolitan Magistrate, Karkardooma Courts, New Delhi. The charge sheet was filed under Sections 420, 471, and 461 of IPC on the allegation that A-1 secured appointment as JPIO by producing false and fake certificates. Ex.P-17 is the attested copy of reply sent by Registrar, Nagarjuna University to the letter addressed by the Assistant Director (D), Aviation Research Centre, Dte. General of Security (Cabinet Secretariat), East Block-V, R.K.Puram, New Delhi. Ex.P-18 is another reply sent by the Principal, S.V.H. College of Engineering, Machilipatnam. Ex.P-18 shows that Srinivas Rao was admitted in the College on 10.12.1984 in B.Tech I/IV & II/IV during the academic years 1984-85 and 1985-86 respectively, discontinued his studies and did not appear for B.Tech. Examinations conducted by the Nagarjuna University. Therefore, did not complete B.Tech. Course in the college. 28. As against A-2 and A-3, it is the evidence of Pws.2 and 5 that on 27.10.1997 they visited the house of A-2 at Madhira where A-2 and A-3 showed them the name plate of A-1 wherein it is mentioned as 'Srinivasrao, IPS' and that A-2 and A-3 represented to them that A-1 is an IPS officer. As to this the contention of A-2 and A-3 is that Pws.2 and 5 never visited Madhira on 27.10.1997 and they did not show any name board to them. It is the version of PW-2 that A-2 and A-3 stated to them that since A-1 is working in RAW, his identity should not be disclosed and that is why they have not displayed the name board. As rightly observed by the trial Court in this regard that when the identity of A-1 should not be disclosed as per the norms in the department, absolutely there was no necessity for the accused to get the name board prepared. On the other hand, basing on the oral evidence of Pws.2 and 5 that A-2 and A-3 showed the name board of A-1 to them, it is not possible to arrive at a conclusion that in fact A-2 and A-3 made such a representation since the said version itself appears to be quite unconvincing. 29. The learned counsel appearing for A-1 would contend that mere pending of a criminal case against A-1 on the allegation that he secured a job by producing forged and fake certificates regarding his educational qualifications, is not proved, whether he did the same in fact or not will be decided only at the conclusion of the trial in the said case and therefore, it cannot be said that A-1 cheated PW-1 by making a false representation. According to the learned counsel unless A-1 is convicted by a competent court for the offence of securing a job by producing forged and fake certificates, it is not possible to convict him for the offence under Section 420 IPC in the present case, therefore, the conviction is liable to be set aside in this appeal. 30. The contention urged by the learned counsel cannot be accepted because the prosecution has brought on record the oral and documentary evidence indicating that A-1 dishonestly induced PW-1 by representing himself to be an IPS officer working in RAW at New Delhi. Therefore, the burden casts on A-1 to establish in the present case that in fact, he possessed the said qualifications. The contention such as to render judgment in the present case, the Court has to wait for the disposal of the case pending against A-1 filed by the department does not stand to reason and cannot be acceded to in view of the fact that A-1 was not able to convince the learned trial Court that in fact, he possessed the requisite qualifications, which is not at all difficult for him. In my view, the trial Court rightly recorded a conviction against A-1 for the offence under Section 420 IPC. The sentence passed by the learned trial Court also being proportionate to the gravity of the crime and as such, the conviction and sentence passed by the trial Court against A-1 for the offence under Section 420 IPC do not call for any interference in these appeals and criminal revision case and they are confirmed. 31. Coming to the role played by A-2 and A-3, even if it is proved that A-1 made a false representation with dishonest intention to cheat PW-1, it cannot be said that A-2 and A-3, the parents of A-1 who hail from a remote village, must be aware of the fact that A-1 secured a job by submitting the false and fake certificates regarding his educational qualifications. It is also quite possible that A-1 might not have informed the said fact to his parents A-2 and A-3. The evidence on record does not indicate that A-2 and A- 3 also knew about A-1 securing a job by deceitful means. It would appear that they are under the impression that his son was doing a job at Delhi. It is also unlikely that A-1 representing to A-2 and A-3 about his fake educational qualifications and about securing the job basing on such kind of certificates. The prosecution thus, failed to prove the requisite mens rea on the part of A-2 and A-3 for the offence under Section 420 IPC and therefore, they were rightly acquitted by the learned trial Court for the offence under Section 420 IPC. The order of acquittal passed by the learned trial Court in so far as A-2 and A-3 for the offence under Section 420 IPC is concerned, it does not require any interference in this appeal and the same is affirmed. 32. For the foregoing reasons, Crl.A.No.141 of 2004, Crl.R.C.No.1020 of 2003 and Transfer Crl.A.No.1398 of 2008 are dismissed confirming the conviction and sentence passed by the trial Court against A-1 for the offence under Section 420 of IPC. _______________ Date: 05.08.2009. R. KANTHA RAO, J CCM