THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2469 OF 2004 BETWEEEN: M. Babu Rao and another … Appellants AND The State of A.P. rep by its Public Prosecutor, High Court of AP, Hyderabd … Respondent THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2469 OF 2004 JUDGMENT: The appellants 1 and 2/A-1 and A-2 were convicted of the offence under Section 498-A IPC and were sentenced to rigorous imprisonment for two years and fine of Rs.2,000/- each by the IV Additional Metropolitan Sessions Judge, Hyderabad, by judgment dated 25-10-2004 in Sessions Case No.167 of 2004. Questioning the same A-1 and A-2 filed this appeal. 2. A-1 is husband of the deceased, A-2 is mother of A-1, A-3 to A-7 are sisters of A-1, out of whom A-5 to A-7 are married and A-3 and A- 4 were un-married. A-1 and the deceased were having two children. At the time of marriage, parents of the deceased gave Chetak scooter bearing No.AP09 AG 6785 to A-1 apart from gold and cash. As parents of the deceased failed to pay instalment amounts payable on the scooter, the financier seized the said vehicle. It is alleged that aggrieved by seizure of the scooter, A-1 to A-7 started harassing the deceased physically and mentally asking her to get back the scooter and that the deceased was under continuous harassment by A-1 and that on 02-03-2002 the accused harassed the deceased to the maximum extent driving the deceased to develop enormous mental pressure and that in that state of mind the deceased decided to kill herself and poured kerosene on herself and set fire to herself and that while undergoing treatment in Osmania General Hospital the deceased succumbed to burn injuries. 3. On the said allegations, the lower Court framed charge against A-1 to A-7 for the offence under Section 304-B IPC. After trial the lower Court recorded clean acquittal of A-3 to A-7; and found A-1 and A-2 guilty of the offence under Section 498-A IPC though they were not liable for the offence under Section 304-B IPC. 4. The lower Court did not frame any specific charge against any of the accused much less A-1 and A-2 for the offence under Section 498-A IPC, but while finding the accused not guilty of the charge under Section 304-B IPC came to the conclusion that they are guilty of the offence under Section 498-A IPC. The Apex Court had an occasion to consider a situation of this nature in Smt.Shanti and another v. State of Haryana[1], wherein it was observed as follows: “However, we want to point out that this view of the High Court is not correct and Ss.304-B and 498-A cannot be held to be mutually exclusive. These provisions deal with the two distinct offences. It is true that “cruelty” is a common essential to both the sections and that has to be proved-. The Explanation to S.498-A gives the meaning of “cruelty”. In S.304-B there is no such explanation about the meaning of “cruelty” but having regard to the common back-ground to these offences we have to take that the meaning of “cruelty or harassment” will be the same as we find in the explanation to S.498-A under which “cruelty” by itself amounts to an offence and is punishable. Under S.304-B as already noted, it is the “dowry death” that is punishable and such death should have occurred within seven years of the marriage. No such period is mentioned in S.498-A and the husband or his relative would be liable for subjecting the woman to “cruelty” any time after the marriage. Further it must also be borne in mind that a person charged and acquitted under S.304-B can be convicted u/S.498-A without charge being there, if such a case is made out.” While holding so, the Supreme Court further cautioned the trial Courts to the following effect: “But from the point of view of practice and procedure and to avoid technical defects it is necessary in such cases to frame charges under both the sections and if the case is established they can be convicted under both the sections but no separate sentence need be awarded under S.498-A in view of the substantive sentence being awarded for the major offence under S.304-B.” 5. Thus, though there is no legal bar for the Court to find an accused person guilty of the offence under Section 498-A IPC as an alternative for the offence under Section 304-B IPC, when the accused is found not guilty of the offence under Section 304-B IPC, the Court can resort to the alternative conviction under Section 498-A IPC even after finding the accused not guilty of the offence under Section 304-B IPC and in spite of not framing specific charge for the offence under Section 498-A IPC. But, by way of abundant caution and as a matter of practice and procedure, it is always safe if the trial Court framed a charge under Section 498-A IPC also along with a charge under Section 304-B IPC either as alternative charge or as additional charge. 6. In State of U.P. v. Santosh Kumar[2] the Supreme Court held that even if there is acquittal under Section 304-B IPC, still conviction under Section 498-A IPC can be recorded under the law. Therefore, I am of the view that there is no legal or technical error in finding A-1 and A-2 guilty of the offence under Section 498-A IPC by the lower Court while holding that they are not guilty of the offence under Section 304-B IPC, in spite of there being no charge for the offence under Section 498-A IPC. 7. When the deceased was undergoing treatment in the hospital, on requisition of the police, PW-1 who was the then XIV Metropolitan Magistrate, Hyderabad, went to Osmania General Hospital on 02-03-2002 and recorded Ex.P-2 dying declaration from the deceased/injured in Osmania General Hospital. At or about the same time PW-7 who was the then Sub-Inspector of Police, Mangalhat Police Station recorded Ex.P-5 statement of the victim in the hospital and on that basis, issued Ex.P-6 F.I.R. Subsequently, PWs.2 to 4 who are mother, maternal uncle and maternal grand- father of the victim separately met her in Osmania General Hospital and had interaction with her as to the reason why she set fire to herself. Thus, there are five dying declarations in this case, out of which Exs.P-2 and P-5 are written and other three are oral dying declarations of the victim given to PWs.2 to 4 respectively. The lower Court did not place reliance on Ex.P-5 statement of the deceased which is in the form of her dying declaration and also three oral dying declarations said to have been given by the deceased to PWs.2 to 4, on the ground that they are suffering from certain infirmities pointed out in the judgment of the lower Court. The lower Court came to the conclusion that Ex.P-2 dying declaration of the victim is a reliable one. 8. Before proceeding to record Ex.P-2 dying declaration, PW-1 obtained endorsement of the Medical Officer attending on the victim to the effect that the victim was in conscious state and coherent condition and was having fit state of mind to give her statement. Thereafter PW-1 proceeded to record dying declaration of the victim. The victim deceased stated in Ex.P-2 that her parents gave scooter to her husband in the marriage after obtaining loan from a finance company and that her parents did not repay the loan to the finance company and so the finance company took away the vehicle one year ago and that at that time A-2 obtained her signature on a document to the effect that it was parents of the deceased who have taken away the scooter and that A-2 also obtained another document as if the victim’s parents have taken away her jewellery and pledged. According to the deceased, the allegations in both the documents are incorrect. The deceased further continued to say that since the date of the said documents, A-2 along with A-3 and A-4 were harassing and ill-treating her on several flimsy grounds and that about two days back she had quarreled with A-2 to A-4 who beat her and that on the morning of the day when the offence took place, A-1 also quarreled with her and beat her and that all the accused did not agree when she wanted to go to her parents’ house and that she proclaimed to A-1 that she would die, and A-1 asked her to die and that therefore, she poured kerosene and set fire to herself. She finally says in Ex.P-2 that all the above persons had harassed her and all of them were responsible for the said incident. 9. Though the lower Court placed utmost reliance on Ex.P-2 dying declaration of the deceased, gave leverage to A-3 and A-4 because the dying declaration did not specify their names for the quarrel which took place two days prior to the offence. I am of the opinion that the lower Court in its well considered judgment took pragmatic view of evidence on record as well as complicity of all the accused in the crime and gave all necessary concessions and leverages to the accused by finding A-3 to A-7 totally not guilty of any offence and also finding A-1 and A-2 not guilty of the charge under Section 304-B IPC. It has to be seen whether Ex.P-2 made out the offence punishable under Section 498-A IPC against A-1 and A-2. 10. It is contended by the Senior Counsel appearing for the appellants that even from Ex.P-2 the prosecution could not make out the offence under Section 498-A IPC. Alternatively it is contended that A-2 stands on the same footing as A-3 and A-4 and that therefore, the lower Court could not have found A-2 guilty. It is further contended that A-2 was not in any way responsible for death of the deceased because she did not involve herself in the quarrel which took place between the deceased and A-1 on the date of offence and because it was A-1 alone who asked the deceased to die. It is contended that the language employed in Clause (a) of explanation to Section 498-A IPC contemplates willful conduct on the part of the accused, which is likely to drive the woman to commit suicide. But, at the same time, the concept of “soon before” is conspicuously absent in Section 498-A IPC, when compared to Section 304-B IPC. The willful conduct contemplated under Clause (a) thereof need not necessarily be in the immediate past. The said willful conduct should be of such nature as is likely to drive the woman to commit suicide. It also does not contemplate conduct which actually drove the woman to commit suicide. In my opinion, the phrase “likely to drive” distinguishes a conduct which actually drove a woman to commit suicide. 11. Ex.P-2 dying declaration of the deceased has to be examined in this perspective. As per Ex.P-2, genesis of harassment is from the date of the financier seizing the vehicle one year prior to the date of offence. During that time, A-2 obtained signatures of the deceased on two documents as if it was her parents who had taken away the scooter and as if it was her parents who took away and pledged her jewellery. Both the said allegations in those documents are incorrect allegations, according to the deceased. It is stated in Ex.P-2 that since the date of the said documents, A-2 to A-4 were harassing and ill-treating her on several flimsy grounds. It is further stated in Ex.P-2 that two days prior to the incident A-2 and two sisters of A-1 had quarreled with her and beat her. Further, on the date of incident, A-1 also quarreled with her and beat her and all of them (A-1, A-2 and two sisters of A-1) did not agree when she wanted to go to her parents’ house. It was at that point of time the deceased expressed to her husband that she would die. The decision to die was taken by the deceased not after A-1 asked her to die, but after A-1, A-2 and two sisters of A-1 did not agree for the deceased to go to her parents’ house. It is only after A-1 asked the deceased to die, the deceased poured kerosene on herself and set fire to herself. This is not a case where A-1 alone was guilty of such willful conduct which drove the deceased to death. Since names of two sisters of A-1 were not specified in Ex.P-2, the lower Court rightly did not rope in any of the five sisters of A-1 for finding them guilty under Section 498-A IPC. At the same time, the lower Court was definite about the mother-in-law as A-2 though she was not named but described as mother-in-law. Having regard to the above statement of the deceased in Ex.P-2, I am of the opinion that the lower Court rightly found both A-1 and A-2 guilty of the offence under Section 498-A IPC. Though A-2 and two sisters of A-1 stand on the same footing, the distinction was drawn by the lower Court because two sisters out of five sisters were not named specifically. Simply because A-3 and A-4 slipped away from the net of the prosecution, A-2 cannot seek the same slip out of the net. The lower Court is justified both on facts and in law in finding A-1 and A-2 guilty of the offence under Section 498-A IPC. 12. In the result, the appeal is dismissed. _____________________________ SAMUDRALA GOVINDARAJULU, J Dated: 18.08.2011 PN Note: L.R. copy to be marked. B/o.Pn THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2469 OF 2004 DATED: 18.08.2011 PN [1] AIR 1991 SUPREME COURT 1226 (1) [2] AIR 2009 SC (Supp) 2687