THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2604 of 2004 JUDGMENT: The appellants 1 and 2/A-1 and A-2 were convicted by the IV Additional Sessions Judge (Fast Track Court), Karimnagar by the impugned judgment under Section 304-B IPC and were sentenced to imprisonment of eight years, and were also convicted under Section 498-A IPC and were sentenced to rigorous imprisonment of two years and fine of Rs.500/- each. Questioning the same, A- 1 and A-2 filed this appeal A-2 is father of A-1. A-3 who is mother of A-1, was acquitted by the lower Court. The deceased Swapna was wife of A-1. Their marriage took place on 07-04-2002. They lived together and lead marital life at Dongadurthi village of Karimnagar district. Ultimately the deceased died on 11-09-2003. Though it was alleged that the deceased was administered poison and was pushed into a well by the accused, the Investigating Officer after investigation came to the conclusion that it was a case of suicide committed by the deceased after consuming pesticide poison and by jumping into a well. The deceased was rescued from the well by the neighbours and she had life when she was taken out of the well, ultimately she died on the way to hospital. It is alleged that the accused were harassing the deceased by demanding motor cycle and colour Television from her parents and that as the deceased was not attending for agricultural work, the accused were demanding to get additional dowry of Rs.1,00,000/- from her parents. Plea of A-1 and A-2 is one of not guilty and total denial. After trial, the lower Court found A-1 and A-2 guilty under Sections 304-B and 498-A IPC. It is contended by the senior counsel appearing for the appellants that in the charges framed by the lower Court there was mention of only demand for bringing colour T.V. and also to do agricultural work or else to bring additional dowry of Rs.1,00,000/- and that there is no allegation of demanding for motor cycle. It is further contended that even as per the prosecution case the alleged demand for additional dowry of Rs.1,00,000/- was by way of an alternative for not doing agricultural work by the deceased and that therefore it cannot be equated with demand for additional dowry from her parents as contemplated under Section 498-A IPC. When the accused were supplied with all prosecution documents including copies of F.I.R., statements of witnesses and other documents along with the charge sheet, in my opinion, any defect or omission in the contents of the charges cannot assume any importance and it cannot be a ground for setting aside convictions recorded by the lower Court after full trial and after giving full opportunity to cross-examine the prosecution witnesses. It is contended by the senior counsel for the appellants that none of the neighbours of A-1 and the deceased at Dongadurthi village spoke to any harassment of the deceased by any of the accused and that in spite of it, the prosecution did not make any attempt to cross-examine the said witnesses on that aspect. The neighbours of A-1 at Dongadurthi village were examined for the purpose of speaking to the events which occurred on 11-09-2003 when the deceased jumped into well. The neighbours rushed to the well after coming to know about the said event and after hearing the sound of jumping into the well and rescued the deceased from the well. The Investigating Officer did not examine those neighbours of A-1 with regard to treatment of the deceased by the accused. In the absence of any previous contra statement recorded during investigation under Section 161 (3) Cr.P.C. the question of the Additional Public Prosecutor treating the witnesses as hostile to the prosecution and cross-examining the said witnesses will not arise at all. Since it was an internal affair relating to family, the neighbours might not be knowing the events which happened within the family of the accused and the deceased. From the outward appearance, the neighbours felt that both A-1 and the deceased were living amicably. That outward impression gained by the neighbours cannot rule out internal bickerings between the accused and the deceased. PW-1 is father of the deceased. PW-8 is mother of the deceased. PW-2 is younger brother of the deceased. PW-4 is paternal grand-mother of the deceased. PW-15 is son of paternal uncle of the deceased. PW-18 is son-in- law of paternal uncle of the deceased. Except PWs.1, 2 and 8 all the others are residents of Dongadurthi village. Since PW-1 was working as General Mazdoor in No.1 Incline of Singareni Collieries Limited at Chennur of Adilabad district, PWs.1, 2 and 8 were residing at Chennur, though originally PW-1 belonged to Dongadurthi village. On the date of offence, PW-8 was at Dongadurthi village and she also went to the well after coming to know about the offence. It is evidence of PW-8 that when the deceased was rescued from the well, she enquired the deceased as to what happened, the deceased informed her that the accused administered poison to her. But the lower Court rightly did not place reliance on the said evidence of PW-8 because it was a development in her evidence during trial before the lower Court and she did not state so to the Investigating Officer during investigation. At this stage there can be no dispute of the fact that it is a case of suicide and not homicide. It is contended by the senior counsel for the appellants that A-2 was not a resident of Dongadurthi village as he was a mine worker in Singareni Collieries Limited at Godavarikhani of Karimnagar district. There is no dispute from the prosecution that A-2 was resident of Godavarikhani, but according to the prosecution witnesses, A-2 was making frequent visits from Godavarikhani to Dongadurthi village to the house of A-1 at least once in a week. At Dongadurthi village, it was only A-1 and the deceased who were leading marital life. It is pointed out that there was discrepancy in evidence of the prosecution witnesses who are relations of the deceased with regard to payment of dowry of Rs.2,00,000/- and gold at time of marriage. In my opinion, the said part of the prosecution evidence may not be scrutinized in detail as there was no charge much less conviction of any of the accused for any offences under the Dowry Prohibition Act. It is elicited in cross- examination of the witnesses that after death of the deceased PW-1 obtained 6 Tolas of Gold from the accused apart from other articles by giving a document evidencing receipt of the same. It is evidence of PW-1 that when A-1 and the deceased visited his house during Deepavali festival after their marriage, A-1 demanded for motor cycle as gift and that expressing his inability to give the said gift of motor cycle, PW-1 gave new clothes to the couple and Rs.1116/- in cash and convinced A-1 for not giving motor cycle to him. It is contended that the said episode ended there with convincing of A-1 and that therefore it cannot be taken as a ground for any harassment of the deceased by the accused. It is further evidence of PW-1 that when he went to house of A-1 for taking the deceased to his house for Ekadashi festival, the accused demanded for colour T.V. and that when he expressed his inability to give colour T.V. as he was in loans, A-1 did not send the deceased to his house and that therefore, he returned to his house without taking the deceased with him. It is further evidence of PW-1 that the accused started harassing the deceased after Deepavali festival. PW-1 stated that ten days after Ekadashi his mother sent message to him about A-1 to A-3 harassing the deceased and that thereupon he went to Dongadurthi village and met the accused and took his daughter to Chennur and that ten days thereafter A-1 came to Chennur and took away the deceased with him. PW-1 further deposed that when his daughter came to his house on another occasion, his daughter informed him about the accused harassing her for dowry and A-1 beating her and that on next day he went to A-1 and questioned him about the harassment and that he also enquired A-2 about the same and that A-2 informed him about the dowry paid being insufficient. Ex.P-1 is report given by PW-1 to the police on 11-09-2003. In Ex.P-1 PW-1 apart from narrating the incidents relating to demand for motor cycle and demand for colour T.V. it was further stated that the deceased informed him about the accused abusing and beating her for not attending to agricultural work. It is contended for the appellants that by the date of marriage of the deceased with A-1, the deceased was studying tenth class and that subsequently passed tenth class (S.S.C.) and that the deceased intended to continue her further studies and therefore, she was not inclined to attend for agricultural work and that the deceased was not having knowledge of attending the agricultural works. Though PW-1 denied the deceased being admitted in Intermediate Course at Chennur, evidence of PWs.2 and 8 discloses that the deceased was joined in Junior College at Chennur. Therefore, the deceased was interested in continuing her studies and was not interested in attending to agricultural works. It is evidence of PW-8 that when A-1 came to Chennur, A-1 demanded for additional dowry of Rs.1,00,000/- and pointed out not providing him with a two wheeler and colour T.V. as demanded by him. PW-4 deposed about the deceased informing her about the accused harassing the deceased. PWs.15 and 18 came to know about harassment of the deceased by the accused either through the deceased or through others. But, on total reading of evidence of PWs.1, 2, 8, 15 and 18 there is no mention with regard to proximity of the demands for additional dowry and presents together with harassment with reference to the date of commission of suicide by the deceased. The prosecution witnesses specifically speak about the alleged demands etc., which took place during Deepavali festival after marriage, which occurred in October-November, 2002 and before Ekadashi festival which occurred in or about December, 2002. Except the above two dates, the prosecution witnesses did not specify further dates of harassment of the deceased by any of the accused. The prosecution evidence lacks details on one of the ingredients required under Section 304-B IPC to the effect that the harassment for dowry etc., occurred “soon before” death of the deceased. In the absence of evidence of proximity of the harassment of the deceased, in my opinion, the lower Court erred in finding A-1 and A-2 guilty under Section 304-B IPC. At the same time, the above evidence on record certainly discloses the offence under Section 498- A IPC. It is contended by the senior counsel for the appellants that since A-2 was not residing along with A-1 and the deceased at Dongadurthi village as he was away on his job at Godavarikhani, it cannot be said that A-2 was indulging in harassment of the deceased for the sake of dowry. Evidence on record reveals that it was A-1 who was only demanding for presents like motor cycle and colour T.V. and also making personal demand for additional dowry of Rs.1,00,000/-. It is only when PW-1 is stated to have met A-2 to question about harassment of the deceased by A-1, A-2 is stated to have informed him about the dowry already paid being insufficient. There was no occasion for A-2 to harass the deceased for the sake of additional dowry as he was away from the deceased. A-2 might have given his opinion about insufficiency of dowry paid and it cannot be concluded that it amounts to any harassment of the deceased for the sake of additional dowry. Therefore, in those circumstances the lower Court should not have convicted A-2 under Section 498-A IPC. Thus, on close scrutiny of the entire prosecution evidence, I am of the opinion that A-1 cannot escape from liability under Section 498-A IPC. In the result, the appeal is partly allowed setting aside the convictions and sentences passed by the lower Court against the second appellant/A-2 and acquitting him of all the charges; and the appeal is partly allowed setting aside the conviction and sentence passed by the lower Court against the first appellant/A-1 under Section 304-B IPC; and the appeal is partly dismissed confirming the conviction as well as the sentence passed by the lower Court against the first appellant/A-1 under Section 498-A IPC. _____________________________ SAMUDRALA GOVINDARAJULU, J October 10, 2011 PN THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2604 of 2004 October 10, 2011 PN