THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.415 of 2007 23-01-2014 BETWEEN:
Mekala Santosh …..Appellant AND State of A.P., Rep. by the Public Prosecutor, High Court of A.P., Hyderabad.
…..Respondent THIS COURT MADE THE FOLLOWING JUDGMENT: THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.415 of 2007 JUDGMENT:
This Criminal Appeal is preferred by the appellant/accused against the Judgment dated 29.03.2007 passed in S.C.No.356 of 2006 by the Hon’ble II Additional Sessions Judge (Fast Track Court), Adilabad, whereby the learned Judge found the appellant/A.1 guilty for the offence under Section 306 IPC and accordingly convicted and sentenced him to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.2,000/- (Rupees two thousand only), in default to suffer simple imprisonment for a period of two months.
The case of the prosecution is as follows:
That on 04.05.2001, A.1 was given in marriage to Rama (the deceased) and at the time of marriage, P.Ws.1 and 2 (parents of the deceased) paid an amount of Rs.15,000/- as dowry and presented one tula of gold to the accused. They led happy marital life for about three months and thereafter, A.1 started harassing the deceased suspecting her fidelity and demanded to bring additional dowry and gold from her parents. P.W.1, father of the deceased, gave Rs.5,000/- as additional dowry to A.1 and also agreed to give one tula of gold. The accused was not satisfied with the amount paid to him and he again started demanding the deceased for additional dowry and also started harassing the deceased both physically and mentally on the instigation of A.2 to A.6. The deceased has revealed the factum of harassment to her parents and as she was unable to bear the said harassment, she went to her parents’ house. Subsequently, on the intervention of elders by conducting panchayat, the deceased was sent to the house of the accused. One month thereafter, the accused had forcibly administered poison to the deceased and killed her. The deceased was shifted to Government Hospital, Adilabad by P.W.3, but she died in the hospital. On the basis of the complaint, Ex.P.1, lodged by the father of the deceased, P.W.1, a case was registered against A.1 to A.6 and the matter was investigated. After completion of the investigation, charge sheet was filed against A.1 to A.6 for the offences under Section 304-B read with Section 34 IPC.
To prove the guilt of the accused, on behalf of the prosecution, P.Ws.1 to 16 were examined and Exs.P.1 to P.13 and M.O.1 were marked. No oral or documentary evidence was adduced on behalf of the accused.
P.W.1 is the father of the deceased, who set the law in motion by lodging a complaint, which is marked as Ex.P.1. He deposed regarding the demand of dowry made by the accused and the harassment by the accused towards the deceased. He also deposed about the accused No.1 suspecting the fidelity of the deceased and supported the case of the prosecution. P.W.2 is the mother of the deceased, who also deposed on the same lines of P.W.1. P.W.3, who is the brother of the deceased, also deposed on the same lines of P.Ws.1 and 2. P.Ws.4, 5, 6 and 7 were the residents of the village, where the A.1 and the deceased were residing, who deposed regarding the harassment of the accused towards the deceased and supported the case of the prosecution. P.W.8 was the photographer, who had taken photographs of the dead body of the deceased, at the request of the Police. Exs.P.2 and P.3 are the positive photos and Exs.P.4 and P.5 are the corresponding negatives. P.W.9 was one of the elders, who conducted panchayat and sent the deceased to the house of A.1 after the panchayat, and supported the case of the prosecution. P.Ws.10, 11 and 12, who are the residents of the village, turned hostile and have not supported the case of the prosecution.
P.W.13 was the Mandal Revenue Officer, who conducted inquest over the dead body of the deceased in the presence of panch witnesses.
P.W.14 was the Civil Assistant Surgeon in the Government Hospital, Adilabad who conducted Postmortem and gave Postmortem Report, Ex.P.8. He opined that the cause of death is due to consumption of poison. P.W.15 was the then Sub Inspector of Police, who received the complaint from P.W.1 and registered First Information Report against the accused, and conducted investigation. P.W.16 was the Inspector of Police, who conducted further investigation and altered the Section of law from 306 IPC to 304-B IPC read with Section 34 IPC.
The learned trial Judge after evaluating the evidence adduced by the prosecution and also on hearing oral submissions on both sides found A.1 to A.6 not guilty for the offence under Section 304-B read with Section 34 IPC and acquitted them. However, the learned Judge found the appellant/A.1 guilty for the offence under Section 306 IPC and convicted and sentenced him as stated above. Aggrieved by the same, the present appeal is preferred by the appellant/A.1.
Heard the learned counsel for the appellant/A.1 and the learned Public Prosecutor, and perused the material available on record.
Whether the prosecution has been able to prove the guilt of the A.1/appellant herein beyond all reasonable doubt?
The learned counsel for the appellant/A.1 submits that even assuming that the deceased died due to the harassment of the accused/A.1, he cannot be convicted for an offence under Section 306 IPC, when there is no charge framed against him for an offence under Section 306 IPC, more particularly when the accused is tried and is acquitted for an offence under Section 304-B read with Section 34 IPC. This Court finds force in the said submission. The ingredients of Section 306 IPC and Section 304-B read with Section 34 IPC are altogether different. To attract an offence under Section 306 IPC, there should be specific allegation that the accused induced and instigated the deceased to commit suicide and the deceased has no other alternative except to commit suicide. In the absence of any such allegation and when there is no evidence that the appellant/A.1 induced the deceased to commit suicide, and especially, when there is no charge framed for an offence under Section 306 IPC, the conviction and sentence imposed by the Court below against the appellant accused/A.1 for the offence under Section 306 IPC is illegal and is not sustainable under law and is liable to be set aside. Accordingly, the conviction and sentence imposed by the Court below against the appellant/A.1 for the offence under Section 306 IPC is set aside and the appellant/A.1 is acquitted of the said charge.
This Court, after perusing the entire material on record, is of the view that the accused can safely be convicted for an offence under Section 498-A IPC on the basis of the evidence available on record. It is necessary to extract the first limb of Section 498-A IPC, which runs as follows.
498A. Husband or relative of husband of a woman subjecting her to cruelty.- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.- For the purpose of this section, “cruelty” means-
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman;
Reading the above provision, this Court, in the facts and circumstances of the case, is of the view that the appellant/A.1 can safely be convicted for an offence under Section 498-A IPC.
Hence, the conviction imposed by the Court below against the appellant/A.1 for an offence under Section 306 IPC is set aside. However, this Court, having found the appellant/A.1 guilty for an offence under Section 498-A IPC, convict the appellant/A.1 for an offence under Section 498-A IPC. However, the sentence of imprisonment is modified to the period, which the appellant/A.1 has already undergone.
In the result, the conviction and sentence imposed by the trial Court against the appellant/A.1 for an offence under Section 306 IPC is set aside, and the appellant/A.1 is acquitted of the said charge. However, the appellant/A.1 is convicted for an offence under Section 498-A IPC and the sentence of imprisonment is modified to the period, which the appellant/A.1 has already undergone. The fine amount, if any, paid by the appellant/A.1 shall be refunded to him. The bail bonds shall stand cancelled and the sureties stand discharged.
Accordingly, the Criminal Appeal is partly allowed. Consequently, the miscellaneous petitions, if any pending in this appeal, shall stand closed.
JUSTICE RAJA ELANGO 23.01.2014 pln