HON'BLE SMT. JUSTICE M.G. PRIYADARSINI
CRIMINAL APPEAL No. 111 OF 2012
JUDGMENT
Accused No. 1 in S.C.No.91 of 2011 preferred this appeal challenging the judgment of the III Additional Sessions Judge (Fast Track Court) at Asifabad, dated 19.01.2012. The appellant herein, along with A.2, was charged for the offence under Section 304-B of IPC for allegedly subjecting the deceased-Suverna to cruelty demanding additional dowry and causing her death within seven years of her marriage with A.1. Through the said judgment, both the accused were found not guilty for the offence under Section 304-B IPC and were acquitted of the said charge. However, the appellant herein, A.1, was found guilty for the offence under Section 498-A IPC and was convicted accordingly and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.5,000/-, in default, to undergo rigorous imprisonment for six months.
2. The gist of the prosecution case leading to the conviction of the appellant-A.1, in brief, is as follows: 2 P.W.1 is the father, P.W.2 is the younger brother and P.W.3 is the brother of the deceased. A.1 is the husband and A.2 is the mother-in-law of the deceased. Marriage of deceased was performed with A.1 three years prior to the date of incident. At the time of marriage, P.W.1 gave net cash of Rs.30,000/- to A.1 towards dowry apart from other articles. After the marriage, the couple led marital life happily for about one year. Subsequently, A.1 and A.2 started harassing the deceased demanding to bring additional dowry of Rs.20,000/- and necked her out of the house. P.W.1 assured the accused that he would arrange the money as soon as possible and sent the deceased back to her in- law's house. However, the accused continued to harass the deceased demanding additional dowry. About six months back, A.2 brought the deceased to his house alleging that she was having illicit contacts with neighbours and demanded to give additional dowry of Rs.20,000/- and left the deceased at his house and did not take her back in spite of his repeated requests. That on 06.06.2010, at about 1100 hours, unable to bear the harassment of the accused, the deceased consumed pesticide poison. While undergoing treatment at Karimnagar Government Head Quarters Hospital, she died at 1330 hours. Based on the complaint lodged by P.W.1 under Ex.P.1, P.W.7, 3 Sub-Inspector of Police, Chennur, registered a case in Crime No. 100 of 2010 for the offence under Section 304-B IPC, issued FIR under Ex.P.4, and forwarded the same to all concerned and took up investigation. During the course of investigation, P.W.7 proceeded to Karimnagar Government Head Quarters Hospital, sent the requisition to P.W.10, Tahsildar, Karimnagar, examined the witnesses and recorded their statements. P.W.10 conducted inquest over the dead body of the deceased in the presence of P.W.6 and another. P.W.8, Assistant Civil Surgeon, held autopsy over the dead body of the deceased and issued Ex.P.5, Post- Mortem Examination Report. P.W.9, the Sub-Divisional Police Officer, Mancherial, took up further investigation, examined the witnesses, recorded their statements, visited the scene of offence, conducted the scene of offence panchanama under EX.P.2 in the presence of panch witnesses, recorded the material objects i.e. empty poison powder sachet of Miltaf Solouble and steel bowl under the cover of panchanama in the presence of mediators, drafted the rough sketch of scene of offence under Ex.P.8, arrested the accused on 15.06.2010 and sent them to judicial custody. After receipt of necessary reports and after completion of investigation, P.W.9 laid the charge sheet against the accused for the offence under Section 304-B IPC before the 4 Judicial First Class Magistrate at Chennur. The accused denied the charges and claimed for trial.
3. The Judicial First Class Magistrate, Chennur, after securing the presence of the accused and following the due procedure contemplated under Cr.P.C., committed the case to the Court of Sessions observing that the offences punishable under Section 304-B IPC is exclusively triable by the Court of Sessions.
4. In order to prove the guilt of the accused, the prosecution examined P.Ws.1 to 10 and marked Exs.P.1 to P.11 besides the material objects 1 & 2. On behalf of the defence, none of the witnesses were examined and no documents were marked. The trial Court after analyzing the oral and documentary evidence, convicted and sentenced the appellant for the offence under Section 498-A IPC, as indicated above, while acquitting the appellant and A.2 for the offence under Section 304-B IPC.
5. The learned counsel representing the appellant-A.1 contended that although the trial Court has rightly acquitted the appellant for the offence under Section 304-B IPC, erred in convicting him for the offence under Section 498-A IPC though 5 the prosecution has utterly failed to bring home the guilt of the appellant beyond reasonable doubt. When the appellant was acquitted of the offence under Section 304-B IPC, it is crystal clear that he is not responsible for the death of the deceased and hence, no accusation can be attributed against the appellant even for the offence under Section 498-A IPC, more particularly, when the deceased was living in her parents' house since one year prior to the date of incident. It is contended that the trial Court ought not to have relied on the evidence of P.Ws.1 to 4, as they are family members and close relatives of the deceased. It is contended that in the absence of any specific allegation that the appellant subjected the deceased to cruelty, he cannot be convicted for the offence under Section 498A IPC. Therefore, he prays to set aside the conviction and sentence imposed by the trial Court.
6. On the other hand, the learned Additional Public Prosecutor while trying to sustain the judgment of the trial Court, contended that although the P.Ws. 1 to 3 are family members of the deceased, their evidence is cogent and consistent as to the harassment for additional dowry meted out to the deceased and therefore, the appellant had rightly 6 convicted and sentenced for the offence under Section 498-A and the judgment of the trial Court needs no interference.
7. In view of the above rival submissions, the point that arises for consideration is:
Whether the prosecution was able to bring home the guilt of the appellant-A.1 for the offence under Section 498-A IPC beyond all reasonable doubt and whether the conviction, as recorded and the sentence awarded by the trial Court is liable to be set aside or modified?
8. In this case, the main witnesses are P.Ws.1 to 4. P.Ws.5 to 10 are the formal witnesses who speak about the procedure followed by the prosecution while conducting the proceedings. P.W.5 is the panch witness for seizure panchanama under Ex.P.2 and P.W.6 is the witness for inquest panchanama under Ex.P. 3. P.W. 7 is the Sub-Inspector of Police, who registered FIR and he speaks about his initiating the proceedings based on Ex.P.1 complaint etc. P.W.8 is the doctor, who issued Ex.P.5 Post-Mortem Examination Report opining that the cause of death was due to Organophosphate poison. Ex.P.6 is the FLS Report and Ex.P.7 is the final report. P.W.9 is the investigating officer, who speaks about his taking up further 7 investigation from P.W.7, arresting the accused and filing the charge sheet against the accused. P.W.10 speaks about his conducting the inquest over the dead body of the deceased.
9. As seen from impugned judgment, the trial Court recorded the conviction based on the evidence of P.Ws.1 to 3. Therefore, it is to be seen that whether the evidence of these witnesses is sufficient to hold the conviction and sentence recorded by the trial Court. The distinction between 304-B and 498-A IPC was clarified in Shanti v. the State of Haryana1, and Keshab Chandra Panda v. State Haryana2. These two sections are not mutually exclusive. While cruelty defined in Section 498-A is the same as cruelty under Section 304-B, under Section 498A, cruelty itself is punishable. But, under section 304B, dowry death as a result of cruelty is punishable. Further, Section 304-B calls for a time frame of seven years, something which is not present in Section 498-A. Moreover, a person charged under Section 340-B can also be convicted under Section 498-A without the charge being there if such a case is made out. Keeping the said legal position in mind, it is to be seen whether the prosecution was able to bring home the 1 (1991) 1 SCC 371 2 1995 Cr.L.J. 174 8 guilt of the appellant-A.1 under Section 498-A IPC through the evidence of P.Ws.1 to 3. Although it is the main contention of the learned counsel for the appellant that the evidence of these witnesses cannot be relied upon to base conviction for the reason that they are close relatives and interested witnesses, the said contention cannot be countenanced. For, if their evidence is found consistent and true, the fact of their being relatives cannot by itself discredit their evidence.
10. P.W.1 is the complainant who lodged Ex.P.1 complaint with the Police. He is the father of the deceased. In the complaint, he stated that he performed the marriage of deceased with A.1 three years prior to the date of incident; that at the time of marriage, he gave Rs.30,000/- net cash, apart from household articles; that one year later, the accused started harassing the deceased physically and mentally by demanding additional dowry of an amount of Rs.20,000/- and sent the deceased to his house. It is stated that he sent the deceased to her in-laws with a promise to give the said money at a later stage, but the accused continued to harass the deceased. About six months back, A.2 left the deceased at his house for not giving the additional dowry of Rs.20,000/- and suspecting her character, and though he tried to convince her, A.2 did not hear 9 him and went away. So many times, though they called the accused over phone, the accused did not take back the deceased to their house. Due to the harassment of the accused for additional dowry, vexed with her life, on 06.06.2010, at 11:00 hours, the deceased consumed pesticide poison at his house and while undergoing treatment at Government Hospital, Karimnagar, she died on the same day at 23:30 hours. Before the Court, he deposed as P.W.1 inter alia that one year after the marriage, the accused started harassing the deceased with a demand of the amount of Rs.20,000/- and harassed her on that count. They sent her to his house. After one month, he sent the deceased back to the house of accused accompanied by his son. Six months thereafter, again the accused left the deceased to his house accompanied by A.2. He specifically deposed that the accused are responsible for the death of deceased because they were demanding additional dowry and also suspected her fidelity and that they did not allow her to their house even though she repeatedly telephoned to A.1 to take her back to his house. Even though he was cross-examined at length, nothing contra is elicited by the defence.
11. P.W.2, the younger brother of the deceased, deposed in similar lines of P.W.1 to the effect that both the 10 accused necked the deceased out of their house demanding an amount of Rs.20,000/-. He also deposed that during her stay at their house, the deceased repeatedly requested the appellant- A.1 over telephone to take her back, but he did not respond. On one occasion, he too telephoned to the accused, but they refused to take back the deceased and demanded Rs.20,000/-. Even in his cross-examination, nothing contra is elicited to discredit his testimony. P.W.3, another brother of the deceased, also deposed about the harassment of accused on the demand of payment of Rs.20,000/- being the balance of agreed amount of Rs.50,000/-, the accused sending the deceased to their house and not taking her back in spite of their repeated requests for not fulfilling their demand of payment of Rs.20,000/-. His evidence is also cogent and consistent as to the accused sending the deceased to her parents' house and not taking her back to their house with the demand of Rs.20,000/-. P.W.4 is the neighbour and relative of P.W.1, who too speaks as to the harassment of accused meted out to the deceased for payment of due amount of Rs.20,000/- and their not taking back to their house from the house of P.W.1. In the cross-examination, she denied the suggestion that the deceased committed suicide as she was not blessed with children. However, she admitted that 11 the deceased never informed her about the demand of accused for payment of Rs.20,000/-. Although there is some inconsistency in the evidence of P.W.4 as regards her admission that the deceased never informed her about the demand by the accused for payment of Rs.20,000/-, the same cannot be taken into consideration as it would not substantially effect the version of the prosecution, in view of the consistent and corroborative evidence of P.Ws.1 to 3 in this regard. The evidence of P.Ws.1 to 3 is consistent, cogent and corroborative as to the demand of appellant for payment of Rs.20,000/-, his leaving the deceased at her parents' house, not taking her back in spite of requests of P.Ws.1 to 3 and the deceased over telephone. Thus, the evidence of P.Ws.1 to 3 is to the effect that the appellant harassed the deceased with the demand of dowry of Rs.20,000/- and not allowed her to join his company, in spite of her repeated requests over telephone which clearly establishes the ingredients of Section 498-A IPC to hold the conviction against the appellant-A.1. Under these circumstances, this Court sees no infirmity or illegality in the impugned judgment of the trial Court in convicting and sentencing the appellant-A.1 for the offence under Section 498-A IPC. The appeal lacks merit and the same is liable to be dismissed.
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12. In the result, the Criminal Appeal stands dismissed. The conviction recorded by the III Additional Sessions Judge (Fast Track Court) at Asifabad in S.C. No. 91 of 2011, dated 19.01.2012 against the appellant for the offence under Section 498-A IPC is hereby confirmed. However, in the circumstances of the case and as the incident pertains to 2010 and as the appellant has already served certain period of sentence, the sentence of imprisonment imposed by the trial court is hereby modified to that of the period already undergone by the appellant.
Miscellaneous pending applications, if any, shall stand closed.
_____________________ JUSTICE M.G.PRIYADARSINI 14th NOVEMBER, 2022 Tsr 13 HON'BLE SMT. JUSTICE M.G. PRIYADARSINI CRIMINAL APPEAL No. 111 OF 2012 DATE: 14-11-2022 14