IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE TWENTY SIXTH DAY OF DECEMBER TWO THOUSAND AND ELEVEN Present HON’BLE SRI JUSTICE G. BHAVANI PRASAD CRIMINAL APPEAL No.372 of 2009 Between: M. Narsing Rao .. Appellant AND The State of A.P. .. Respondent The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD CRIMINAL APPEAL No.372 of 2009 JUDGMENT: The criminal appeal is directed against the judgment, dated 08.02.2007, of the II Additional Metropolitan Sessions Judge, Hyderabad, in S.C.No.14 of 2006, by which the first accused was found guilty of an offence punishable under Section 304-B of the Indian Penal Code, 1860 (for short, “I.P.C.”), and was sentenced to undergo rigorous imprisonment for seven years and a fine of Rs.1,000/- with a default sentence of imprisonment of two months. 2. The Assistant Commissioner of Police, Mirchowk, Hyderabad, filed the charge sheet in Crime No.103 of 2005 of Moghalpura Police Station against the appellant herein and his sister and her husband alleging that Sangitha was married to the appellant on 13.02.2005 at which time, dowry of Rs.1,50,000/-, 5 tulas of gold and household articles were given. A month prior to the incident, the appellant started living with his sister and her husband, the accused 2 and 3, and the brothers and sisters of the husband also were living with them. Since then, the accused was alleged to be harassing Sangitha to sell the house plot at Nizampet given to her and give him the money, apart from getting gold and almirah from the mother of Sangitha. The mother Smt. Shoba requested the accused not to harass her and on 18.07.2005 at about 11.30 a.m., the neighbours of Sangitha informed Shoba that Sangitha committed suicide by hanging. Shoba, after seeing the dead body at the house of the accused, gave a report to the police on the same day, which was registered and investigated into. A scene of offence Panchanama before independent mediators was conducted and chunni used for suicide was recovered. Photographs of the dead body were taken. An inquest was conducted and post-mortem also was done. After examining various witnesses during investigation, the Prosecuting Agency charge sheeted three accused for the offence punishable under Section 304-B I.P.C. 3. The VIII Additional Chief Metropolitan Magistrate, Hyderabad, took cognizance of the offence, furnished copies of the documents to the accused when they entered appearance and committed the same to the Court of Session in P.R.C.No.36 of 2005. The Metropolitan Sessions Judge made over the case to the trial Court, which framed a charge under Section 304-B I.P.C. which was denied by the accused. P.Ws.1 to 15 were examined and Exs.P-1 to P-12, D-1 to D-3 and M.O.1 were marked during trial. The accused denied the incriminating circumstances appearing in the evidence against them when they were examined under Section 313 of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C.”) and no further defence evidence was produced. 4. The trial Court rendered the impugned judgment referring to the factual background and rival contentions and also the admitted marriage between the first accused and the deceased on 13.02.2005 and the deceased committing suicide by hanging on 18.07.2005 within five months. The death was, therefore, otherwise than under normal circumstances within seven years of marriage. The trial Court referred to the need for proving any cruelty or harassment soon before her death under Section 113-B of the Indian Evidence Act, 1872, and Section 304-B I.P.C. The trial Court noted the evidence of P.W.4 and P.W.9, the neighbours, about the quarrel between the first accused and Sangitha. P.W.5 and P.W.6 were noted to have stated only about Sangitha committing suicide. While P.W.7 was the Photographer for the dead body, P.W.8 is a purchaser of the house of P.W.1 prior to the marriage of the first accused with Sangitha. P.W.10 was the Mediator for the scene of offence Panchanama and P.W.11 was a Mediator for the quarrels between the deceased Sangitha and the first accused during which he claimed to have advised the second and third accused to live separately. P.W.12 conducted inquest over the dead body, while P.W.13 conducted the autopsy and P.W.14 and P.W.15 are the Investigating Officers. The trial Court also noted that P.Ws.1 to 3, the mother, sister and brother-in-law of the deceased, are interested witnesses, but when their evidence is scrutinized with utmost care and caution, the demands of the accused 1 to 3 to Sangitha to sell her house plot and give the money to them and abusing and beating her four months prior to the death of Sangitha were established. P.W.2 was also speaking about what was given at the time of marriage and the subsequent events, while P.W.2 also claimed to have been informed by the deceased about the beating and harassment three days prior to her death. P.W.2 denied stating to the police as in Ex.D-1 or Ex.D-2. P.W.3 also spoke similarly about the demands to sell the house site at Nizampet. He also denied stating to the police as in Ex.D-3 and the trial Court concluded from the evidence of P.Ws.1 to 3 that the first accused and Sangitha were living in Bela Colony since 22.06.2005 till the death of Sangitha and Ex.P-12-First Information Report was also given stating that Sangitha was residing along with the first accused in Bela Colony. The second and third accused were, therefore, noted to be residing separately and apart from there being no delay in lodging the first information report, the first accused was opined by the trial Court to be harassing Sangitha as proved by the evidence. The trial Court felt the inconsistencies between P.Ws.1 to 3 to be not significant and the evidence of P.W.4, who turned hostile, was also noted, but even P.W.4 admitted about the first accused enquiring him about the deceased on an earlier day. P.W.9, the wife of P.W.4, also turned hostile and their evidence only showed that the relationship between the deceased and the first accused was not cordial. While concluding from the medical evidence that the deceased committed suicide by hanging, the trial Court opined that the first accused was reasonably expected to be in the company of Sangitha at the time of the suicide. The trial Court was of the opinion that the inquest report containing the statements of P.Ws.1 to 3 was also clear about the harassment and ill-treatment and there are no major contradictions or omissions in the evidence with regard to the land given at the time of marriage and harassment demanding it to be sold. The trial Court, therefore, concluded the harassment and cruelty by the first accused soon before the death of Sangitha to have been proved, while there was no evidence of the second and third accused playing any active role in provoking the first accused to treat the deceased cruelly or to harass her. Therefore, the accused 2 and 3 were found not guilty and the first accused was found guilty by the trial Court, which examined the first accused regarding the question of sentence. While not applying the Probation of Offenders Act, 1958, or Section 360 Cr.P.C., the trial Court took his young age, absence of any past criminal record and other circumstances into account and imposed a minimum sentence of seven years rigorous imprisonment and a fine of Rs.1,000/- with a default sentence of two months. The period of remand was directed to be set off under Section 428 Cr.P.C. 5. The first accused preferred the present appeal contending that there was no legal evidence to prove the ingredients of Section 304-B I.P.C. and when the second and third accused were acquitted on the same evidence, the conviction of the first accused was incorrect. P.W.1 did not have any house plot at all to give it to the first accused and Sangitha and the first accused, for the various reasons stated by him, desired to be acquitted. 6. Heard Sri G. Vijaya Saradhi, learned counsel for the appellant and Sri K. Venkateswara Rao, learned counsel representing the learned Public Prosecutor/the respondent. 7. The point for consideration is whether the guilt of the first accused was proved beyond reasonable doubt and if so, for what offence. 8. P.W.15-the Investigating Officer admitted that P.Ws.1 to 3 did not produce any document to show owning house sites at Bachupally or Nizampet or Mallampet and the survey numbers or plot numbers of the said house sites. P.W.14-the other Investigating Officer had asserted about Exs.D-1 to D-3- portions of the statements being made to him and the various omissions and contradictions in the evidence of P.Ws.1 to 3, vis- à-vis, the statements recorded by the police were admitted by P.W.14. While the police have no reason to fabricate any false statements, the discrepancies also put the Court on guard before accepting the statements at their face value. The evidence of P.W.13 about the cause of death of Sangitha due to hanging as stated in Ex.P-11 is not in dispute, while the factum of the Mandal Revenue Officer-P.W.12 conducting an inquest before independent Mediators also cannot be denied. P.W.11 turned hostile, but he himself was no direct witness being claimed only to be a Mediator who advised the first accused and Sangitha to live together without disputes. P.W.10, the Mediator for the scene of offence Panchanama and Inquest Report, corroborated Exs.P-7 and P-8, Panchanama and Sketch, and Ex.P-9-Inquest Report, while P.W.9, the wife of P.W.4, stated that she did not state to the police as in Ex.P-6. She also claimed that Sangitha told her that she was not willing to stay with P.W.1. P.W.8 was the purchaser of a house from P.W.1 prior to the marriage of Sangitha who claimed that P.W.1 told him that she was selling the house for performing the marriage. P.W.7 was the Photographer for Ex.P-5-Photographs and P.Ws.4 to 6 also turned hostile, out of whom only P.W.4 stated about the disputes between the first accused and Sangitha. However, his knowledge about the same is only hearsay and without any personal knowledge. Sangitha is related to him and he is not an independent witness. 9. That leaves the evidence of P.Ws.1 to 3 who were, of course, speaking about the cruelty and harassment meted out to Sangitha from the first accused. The evidence of P.W.3 shows that the first accused and Sangitha lived in the house of P.Ws.2 and 3 for 40 to 45 days after the marriage and thereafter, took a room in a residential locality and were residing there. Their stay with the second and third accused was only for eight days. The witness positively deposed about the demand by the first accused on telephone to sell the house site at Nizampet. P.Ws.2 and 3 were claimed to be present at the time of settlement of marriage and given the relationship, the knowledge of P.Ws.2 and 3 does not sound artificial. Though there were number of deviations from the statement of P.W.3 to the police in the evidence, the evidence of P.Ws.1 to 3 cannot be doubted merely because they are interested in the deceased, as they have absolutely no reason to falsely implicate the first accused. P.W.2 also broadly corroborated the prosecution story and P.W.2 claimed that the first accused communicated through others about the demand for selling away the house site and giving the money to them. P.W.2 claimed that she was also informed by the deceased herself over telephone about the cruelty and harassment and P.Ws.2 and 3 were claimed to be the persons who got the marriage performed which is not unnatural, as P.W.2 is the younger sister of P.W.1. P.W.1, the mother, deposed about the performance of the marriage and the demands of the accused 1 to 3 about four months prior to the death of Sangitha to give money to them by selling away the house site at Bachupally. P.W.1 claimed that she sold away her house and performed the marriage of Sangitha, which was corroborated by the purchaser as a witness and P.W.1 also denied foisting a false case. 10. The evidence, thus, may indicate that the second and third accused with whom Sangitha and the first accused stayed only for eight days cannot be concluded to be guilty of any culpable conduct proved beyond reasonable doubt to fasten any liability under Section 304-B I.P.C. or any other penal provision. Except the general allegations of the accused 1 to 3 being together in the cruelty and harassment, there was nothing specific against them due to which the trial Court gave the benefit of reasonable doubt to them and acquitted them. Their acquittal is not in question in the present appeal and is also not otherwise challenged. 11. Insofar as the allegations against the first accused are concerned, right from Ex.P-1, the earliest version from P.W.1, the specific allegation was about the demand to sell away the house plot in the name of Sangitha and give cash. Though some other demands were also alleged to be there to give cash and gold, the primary demand was stated to be to sell the house site and give the money. The evidence of P.Ws.1 to 3 consistently was about their personal knowledge about the absence of cordiality between the deceased and the first accused for that reason and also the information from the deceased herself about such cruelty and harassment to sell the land and get the money. However, Ex.P-1, the earliest version, stated the demand to be from 23.06.2005 itself, while the death was on 18.07.2005. The alleged cruelty and harassment were not stated even in the inquest report to be at any particular time though the inquest report referred to the demand for sale of the house plot and to give the money. The statements recorded by the police are also not about any specific acts of cruelty and harassment on any specified dates and P.W.14-the Investigating Officer did not state about P.Ws.1 to 3 stating to him about the alleged disputes being at which point of time prior to her death. He also did not speak about any physical violence against Sangitha as part of such cruelty and harassment and the evidence of P.W.13 does not show any other injuries except that caused due to hanging. The alleged intervention by P.W.11 in any dispute between the first accused and his wife was denied by him to link any such quarrel to be soon before the death of Sangitha and P.W.9 also specifically stated that when Sangitha came 10 to 12 days before her death to her house, there were no quarrels at her house. She was also specific that thereafter also, there were no quarrels between the first accused and Sangitha. She denied stating to the police as in Ex.P-6 about any such incident. P.W.6 denied stating to the police as in Ex.P-4, while P.W.5 denied stating to the police as in Ex.P- 3. P.W.4 denied stating to the police as in Ex.P-2 and P.W.4 only heard about the alleged quarrels and his hearsay evidence does not reflect any personal knowledge. 12. While the evidence of the other witnesses, thus, did not disclose any quarrels or cruelty or harassment to be soon before the death of Sangitha, the evidence of P.Ws.1 to 3 also does not suggest the probability of any demand for sale of the house site and payment of money to be the proximate cause of suicide of Sangitha. The telephone call from the first accused to P.W.3 when the first accused and Sangitha were residing at Bela Colony was not stated to be on what date and when the deceased allegedly informed P.Ws.1 to 3 two days prior to her death about the demand by the first accused, she was not stated to have told about any harassment, in the evidence of P.W.3. P.W.2, who stated about the deceased informing her by telephone about the harassment prior to two days before her death, was not corroborated by her husband-P.W.3 and the alleged demand by the first accused in a drunken condition for more money, an almirah and gold was not stated by P.W.2 to be linked with the sale of any house plot. The evidence of P.W.2 was making allegations about the cruelty by the second and third accused also and other incidents involving the second and third accused and when the evidence against them was disbelieved by the trial Court which had become final, those incidents leading to the death of Sangitha cannot be believed or acted upon. The specific statement of the mother as P.W.1 that the demand for sale of the house site and money was four months prior to the death has to be accepted, to reject which there was no reason and she did not state anything further in her chief examination about any events linking the said demand four months before the death and the death. Though the demands by the first accused to get money by selling the house plot were unambiguously stated by P.Ws.1 to 3 and were not improbablised by any other evidence on record, such demands or any consequential cruelty and harassment were not shown to be soon before the death of Sangitha by the evidence on record. 13. Any cruelty or harassment within the meaning of the word “cruelty” under the explanation to Section 498-A I.P.C. included any wilful conduct by the husband or his relatives leading the woman to commit suicide, more so, when the harassment was to meet any unlawful demand for any property and the inability of the woman or her relatives to meet such demand. Such cruelty and harassment will make the guilty liable for imprisonment which may extend to three years and also fine. Insofar as the offence under Section 304-B I.P.C. is concerned, not only there should be a death of a woman otherwise than under normal circumstances within seven years of her marriage, cruelty or harassment by the husband or any relative of the husband for, or in connection with, any demand for dowry soon before her death have to be proved. If such cruelty and harassment were not soon before the death, even if the death was unnatural and if other ingredients of the offence are proved, the guilt will be under Section 498-A I.P.C. In the present case, as the evidence was clear only about the cruelty and harassment concerning the demand for sale of the house plot and giving the money to the husband, but not about such cruelty and harassment being soon before the death of Sangitha, the offence proved against the first accused should have been taken only as one under Section 498-A I.P.C., but not under Section 304- B I.P.C. 14. Consequently, as what was proved was cruelty and harassment in connection with the demand for sale of the house plot and giving the money to the husband and not that such cruelty and harassment was soon before the death of Sangitha, the finding of guilt and the conviction should be converted into those under Section 498-A I.P.C. from Section 304-B I.P.C. 15. Therefore, the judgment, dated 08.02.2007, of the II Additional Metropolitan Sessions Judge, Hyderabad, in S.C.No.14 of 2006, is modified finding the first accused therein to be guilty of an offence punishable under Section 498-A I.P.C. and not Section 304-B I.P.C. Therefore, the first accused is convicted under Section 498-A I.P.C., under Section 235 (2) Cr.P.C. and he is sentenced to undergo rigorous imprisonment for a period of three (3) years and pay a fine of Rs.1,000/- (Rupees one thousand only) or in default, to undergo simple imprisonment for two (2) months. The period of remand, if any, shall be set off under Section 428 Cr.P.C. and if the first accused had already paid the fine of Rs.1,000/- imposed on him by the impugned judgment and if he had already served the sentence of rigorous imprisonment for three (3) years and if he is not required in any other cases, he shall be forthwith released by the concerned authorities. The Criminal Appeal is ordered accordingly. ___________________ G. BHAVANI PRASAD, J Date: 26th December, 2011 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD CRIMINAL APPEAL No.372 of 2009 Date: 26th December, 2011 KL