THE HONOURABLE SRI JUSTICE K.G.SHANKAR CRIMINAL REVISION CASE No.83 of 2006 Date: 17.02.2011 Between: Mokarala Satyanarayana …..Petitioner And State of A.P., rep. by Public Prosecutor, High Court of A.P., Hyderabad. …..Respondent THE COURT MADE THE FOLLOWING: THE HONOURABLE SRI JUSTICE K.G.SHANKAR CRIMINAL REVISION CASE No. 83 of 2006 ORDER: The sole accused in S.C.No.160 of 2002 on the file of the Assistant Sessions Judge, Sathupalli, is the revision petitioner herein. He was tried by the learned Assistant Sessions Judge for the offence under Section 304(B) I.P.C. He was found guilty and was sentenced to rigorous imprisonment for a period of seven years. The learned III Additional Sessions Judge, Khammam found no merits in the appeal of the revision petitioner and dismissed the appeal. Hence, this revision. The wife of the deceased consumed insecticide on 20.12.2000 with a view to commit suicide. Unfortunately, she was successful in her attempt to commit suicide. On the complaint under Ex.P.1 alleged by her father, who is P.W.1 herein, a case was registered against the accused. Later, the charge sheet was laid and the accused was prosecuted. The basic contention of Sri C.Praveen Kumar, learned counsel for the accused is that the prosecution should establish that “soon before her death, deceased was subjected to cruelty or harassment by her husband or any relative for dowry” and that as the prosecution failed to establish the same, the accused is not liable for punishment for the offence under Section 304(B) I.P.C. P.W.1 is the father of the deceased. P.W.2 is the brother of the deceased. P.Ws.3 and 4 are said to be neighbours. P.Ws.3 and 4 are related to each other as they are co-daughters-in-law. All of them speak about the commission of suicide by the deceased and attributed blame squarely upon the accused for the death of the deceased. P.W.1 claimed that after the marriage between the accused and the deceased, the accused and the deceased lived happily for a period of three months only. He further claimed that the accused used to harass the deceased thereafter declaring that he would have secured a dowry of one lakh rupees had he married another girl. It is also the further case of P.W.1 that the accused used to harass the deceased by abusing her as well as beating her. P.W.2 spoke more or less similarly. Thus, in the evidence of P.W.1, it is stated that the accused used to declare that he would have secured a dowry of one lakh rupees had he married another girl. There is no whisper in the evidence of P.W.1 that P.W.1 gave dowry for the marriage of the deceased with the accused and that the accused was demanding additional dowry. His only claim regarding dowry is that the deceased informed P.W.1 that the accused used to harass the deceased declaring that he would have secured a dowry of one lakh rupees had he married another girl. The Trial Court as well as Appellate Court went by the assumption that this piece of the evidence of P.W.1 and 2 is tantamount to evidence that the accused was harassing the deceased for dowry/additional dowry. I am afraid that P.Ws.1 and 2 did not utter anywhere that the accused either demanded dowry/additional dowry and that the accused for that matter, received any dowry at all. The learned counsel for the accused inter alia submitted that the question of demanding for additional dowry would not arise where there was no demand or receipt of dowry at the outset. A careful scrutiny of the evidence of P.Ws.1 and 2, does not show that either of them stated that the accused demanded for additional dowry and that the accused received dowry at the time of his marriage with the deceased. Ex.P.1 is the complaint allegedly drafted by P.W.6. In Ex.P.1 what was recorded is that the accused and the members of his family used to harass the deceased right from the date of marriage and that they were chastised a number of times on that count. It was also stated that in recent times prior to the death of the deceased, the members of the family of the accused started declaring that the accused would get a dowry of one lakh rupees, if he marries again and that the members of the family of the accused were harassing the deceased to divorce the accused. This theory of the divorce as referred to in Ex.P.1 did not find place in the evidence of P.Ws.1 and 2. Again the claim of P.W.1 in Ex.P.1 that the accused and the members of his family were harassing the deceased right from the date of marriage has also not been stated by P.Ws.1 and 2. P.Ws.1 and 2 on the other hand stated in their evidence that the accused and the deceased lived happily for about five months after their marriage. Thus, the evidence of P.Ws.1 and 2 run contrary to the statement of P.W.1 to the police by way of complaint under Ex.P.1. However, the important point upon which the learned counsel for the accused banks upon is the question of the “deceased being harassed by the accused for dowry soon before her death”. This is the basic question that needs to be answered. As already pointed out, the prosecution is to establish that “soon before her death, the deceased was harassed for dowry” to make out a case for the offence under Section 304(B) I.P.C. It is the case of P.Ws.1 and 2 that about three years prior to May, 2004, i.e. at about the time of the death of the deceased, the deceased went to the house of her parents at village Jangareddy Gudem. P.W.1 further claimed that the deceased was ill- treated by the accused suspecting her fidelity and that the accused was beating the deceased demanding for dowry and that the deceased expressed a wish not to join her husband. P.W.2 spoke in the same terms. P.W.4, who is the immediate neighbour of P.W.1, deposed that the accused used to harass the deceased demanding additional dowry and that the deceased informed P.W.4 about the same. He also spoke about the wish of the deceased not to return to the matrimonial home. P.W.3 on the other hand, claimed that the deceased had informed her that the accused was harassing the deceased by suspecting the fidelity of the deceased. In the evidence of P.W.3, there is no reference to demand for dowry. If the evidence of P.W.3 is accepted, at once, the case under Section 304(B) I.P.C. is ruled out as Section 304(B) I.P.C. deals with dowry death only and not with any other variety of suicide by a wife. At any rate, P.Ws.1 and 2 also did not speak about the demand of the accused for additional dowry nor did they speak about the payment of dowry at the time of the marriage. I, therefore, consider that the very offence under Section 304(B) I.P.C. is not made out on the ground that there is no evidence regarding the demand for dowry or additional dowry. Further it is the case of P.Ws.1 and 2 that when the deceased returned to the house of her parents and was not willing to go back to the matrimonial home, P.Ws.1 and 2 and mediators convinced the deceased to return to the matrimonial home and that the deceased returned to the matrimonial home and committed suicide a week thereafter. It is the case of P.Ws.3 and 4 that the deceased committed suicide about 20 days after she returned to the house of her husband from the house of her parents. I consider that the contention of the learned Additional Public Prosecutor that this difference of period as 7 days or 20 days, is of no consequence is correct. However, it becomes relevant for a different purpose. The case of P.Ws.1 to 4 is that the deceased went over to the house of her parents, perhaps, about a month before her death and expressed a view that she would not like to go back to her husband and that sometime thereafter, she joined her husband in accordance with the wish of her parents and mediators. She, thereafter, lived at the house of her husband for about 7 days according to P.Ws.1 and 2, and for about 20 days according to P.Ws.3 and 4. In either case, it is not as though deceased committed suicide before she had an occasion to interact with the accused. She committed suicide only after she joined her husband and about 7 days or 20 days after joining her husband. This is the interregnum upon which Sri C.Praveen Kumar primarily places his reliance upon. He correctly contended that there is no evidence as to what happened at the house of the accused after the deceased joined her husband for the last week or about 20 days before her death. Unless it is established that during this period, which is the period to be treated as “soon before her death” the deceased was harassed for dowry or additional dowry by the accused, the guilt of the accused for the offence under Section 304(B) I.P.C. cannot be established. There is no evidence as to what happened at the house of the accused when the deceased returned to the matrimonial home. The prosecution failed in establishing that the suicide of the deceased was on account of dowry harassment. Indeed there is a presumption under Section 113(B) of the Indian Evidence Act that the death of the deceased-married lady was a dowry death subject to the condition that it is established that soon before her death, the deceased lady had been subjected to cruelty or harassment for dowry. In the present case, the very question of dowry harassment is not made out, let alone harassment for dowry soon before the death of the deceased, for there is no evidence as to what happened from the time the deceased joined the accused till her death. The question of invoking the presumption under Section 113(B) of the Indian Evidence Act, therefore, does not arise. Evidently, the prosecution failed to establish that the accused demanded and received dowry, that the accused demanded the deceased or the parents of the deceased for additional dowry and that the deceased committed suicide on account of such harassment by the accused. Consequently, the offence under Section 304(B) I.P.C. is not made out. The assumption of the Trial Court and the Appellate Court that the claim of the members of the family of the accused that the accused would have secured dowry of one lakh rupees had he married another lady was demand for dowry or additional dowry, is erroneous and cannot be accepted. The accused is facing a serious criminal charge. It is, therefore, cannot merely be assumed that the declaration of the members of the family of the accused that the accused would have secured dowry of one lakh rupees is tantamount to a demand for additional dowry. It is not even the case of P.W.1 from Ex.P.1 that the members of the family of the accused claimed that the accused would have secured dowry, but merely stated that the accused would remarry by securing dowry of one lakh rupees. I, therefore, do not agree with the finding of the learned trial Judge and the Appellate Court that the claim of P.W.1 in Ex.P.1 and the evidence of P.Ws.1 to 4 is tantamount to proof of demand for additional dowry. The accused consequently is liable to be acquitted for the offence under Section 304(B) I.P.C. The allegations of the prosecution, however, do not end at this stage. Section 498-A I.P.C. is yet another matrimonial offence. It is more or less a lower form of the offence under Section 304(B) I.P.C. It is to be examined whether the offence under Section 498-A I.P.C. is made out against the accused from the evidence available. Explanation to Section 498-A I.P.C., points out that cruelty to a married lady can be either for demand for additional dowry or for any other purpose. The question of demand for dowry or additional dowry does not arise in this case. At the same time, the evidence of the prosecution in the evidence of P.Ws.1 to 4 corroborated by Ex.P.1 is consistent that the deceased was harassed by the accused. It is not very clear as to the exact reason for the cruelty and harassment of the deceased by the accused. Perhaps, it was for demand of additional dowry. Perhaps, it was because the accused suspected the fidelity of the deceased. Perhaps, it is the case of the ill-health of the deceased. Perhaps, it is for some other reason. In any event, the evidence establishes that there was harassment of the deceased by the accused. Added to it, the deceased would appear to have died not long after her marriage with the accused. The case of the prosecution witnesses is that the deceased had expressed her unwillingness to return to matrimonial home after she returned to the house of parents and that P.Ws.1 and 2 and others unfortunately, convinced the deceased to return to the matrimonial home, which ultimately led to the commission of suicide by the deceased. I, therefore, agree with the contention of the learned Additional Public Prosecutor that the evidence has established the offence under Section 498-A I.P.C. Thus, the prosecution failed to establish the guilty of the accused for the offence under Section 304(B) I.P.C., but, the prosecution established that the accused is guilty for the offence under Section 498-A I.P.C. Regarding the quantum of punishment to be imposed for the offence under Section 498-A I.P.C., the learned counsel for the accused pointed out that the accused was in jail for a period of about 5 months. Added to it, the accused was described as 19 years old in the charge sheet. In view of the age of the accused and the offence under which he is convicted, I consider it just and proper to treat the period of imprisonment already undergone by the accused, as sufficient for the offence under Section 498-A I.P.C. The revision accordingly, deserves to be ordered modifying the conviction and sentence recorded by the Trial Court and by the Appellate Court. The revision accordingly, is ordered. The accused is found not guilty for the offence under Section 304(B) I.P.C. and is acquitted for the offence under Section 304(B) I.P.C. The conviction and sentence recorded by the Trial Court and confirmed by the Appellate Court against the accused for the offence under Section 304(B) I.P.C., are set aside. The accused is found guilty for the offence under Section 498-A I.P.C. As the accused was already in jail for a period of about 5 months, the period of imprisonment undergone by the accused is considered sufficient to meet the ends of justice. The accused is, accordingly, convicted for the offence under Section 498-A I.P.C. The sentence of imprisonment already undergone by the accused is found to be sufficient sentence. The accused, therefore, need not surrender himself to undergo imprisonment again. The Criminal Revision Case is disposed of. _________________________ JUSTICE K.G.SHANKAR 17.02.2011 TJMR THE HONOURABLE SRI JUSTICE K.G.SHANKAR CRIMINAL REVISION CASE No.83 of 2006 DATE: 17.02.2011