JUDGMENT P.S. Narayana, J.
1. Heard Sri Praveen Kumar, Counsel representing the appellant/A-1 and the learned Additional Public Prosecutor.
2. Accused 1 and 2 in S.C. No. 130/97 on the file of Sessions Judge, Chittoor were charged with the offence under Section 302 I.P.C. r/w. Section 34 I.P.C. and A-1 was charged with the offence under Section 498-A I.P.C. The learned Sessions Judge on appreciation of the evidence of PW-1 to PW-15 and Exs. P-1 to P-23 and Ex. D-1 and M.Os. 1 to 9 ultimately came to the conclusion that the accused are entitled to be acquitted as far as the charge under Section 302 I.P.C. r/w. Section 34 I.P.C. is concerned, but however the appellant/A-1 was found guilty for the offence under Section 498-A and was convicted and sentenced to undergo R.I. for a period of two years and also pay a fine of Rs. 5000/-, in default to suffer R.I. for four months. Aggrieved by the same, the present Appeal is filed.
3. Sri Praveen Kumar, the learned Counsel representing the appellant/A-1 would submit that there is no legally acceptable evidence so as to sustain the conviction as against A-1 even under Section 498-AI.P.C. PW-1 is the brother of the deceased. PW-5 was declared hostile. PW-6 is said to be a village elder. PW-7 is the person to whom it is said that the appellant/A-1 made extra-judicial confession. None of these witnesses have any personal knowledge about the demand of amount or dowry as the case may be and in the absence of evidence the presumption under Section 113-A of the Evidence Act 1872 also is not available. The learned Counsel also placed strong reliance on G.M. RAVI @ G.PURUSHOTHAM Vs. STATE OF A.P., 2003(2) ALT (Crl). 210 (DB) and GANANATH PATTNAIK Vs. STATE OF ORISSA, 2002 S.C.C. (Crl) 461.
4. The learned Additional Public Prosecutor on the other hand would contend that there is evidence relating to the demand of amount which would definitely amount to harassment within the meaning of the Explanation to Section 498-A I.P.C. The learned Counsel had drawn the attention of this Court to Section 498-A, Explanation (b), and would submit that the harassment of woman, where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand, would definitely be attracted in the present case.
5. Heard both the Counsel.
6. Ex. P-1 dated 13-10-1997 by PW-1 reads as hereunder :
“My sister Suguna married (love marriage) one Devarajulu Naidu s/o. Siddulu Naidu of Babout 10 months back at Kanipakam Devasthanam and they lived jointly two months. Afterwards my sister’s husband started to harassing my sister to bring Rs. 2,00,000/- (Rupees two lakhs only) towards dowry. Due to that my sister came to my house and asked the said amount but expressed our inability. She told the said matter to her husband. But my sister not to enter into his the come without money and again he came to my house. About one week back I paid Rs. 20,000 to my sister. Then she left to her husbands house with the said amount. But he didn’t receive the amount and send her to my house and asked to get Rs. 2,00,000 and also asked my sister not come to his house without amount. Then my sister went to Kothapallimitta and deposited the said amount in S.V.G. Bank and informed the same. Now she is pregnant and running 7 months.
On 10-3-96 Sunday evening at about 7-30 p.m. one K. Hemasekhar Reddy (Babu) s/o. K. Ravindra Reddy of Asalapuram village who is the friend of sister’s husband came to my village and informed to my sister Suguna that her husband is waiting at the outskirts of the village and asked you to join with him. Then he took my sister in the scooter in the night. Then we waited for her arrival throughout the night. At 7-30 a.m. P. Narayana Reddy of our villager came from Polinaidupalli village to Chintareddypalle on the road side he saw the dead body of Suguna and informed the same to us. Then all the villagers went and saw the dead body. I feel that my sister’s husband Devarajulu and his friend may murder my sister. Hence prays to do justice.”
7. On the strength of this report a case was registered as aforesaid against both the accused and as stated supra both to the accused were acquitted as far as the charge under Section 302 I.P.C. r/w. Section 34 I.P.C. is concerned, but the present appellant/A-1 is convicted under Section 498-A I.P.C.
8. The evidence of PW-1 is that prior to the death of his sister two months after marriage the appellant/A-1 sent her away demanding Rs. 2,00,000/- dowry and she came to the house and informed him and they informed their sister that they cannot pay that amount and had sent the information to the accused through mediators. PW-1 also deposed that ten days thereafter the father of the appellant/A-1 sent two mediators viz., Ravindra Reddy and Kannaiah Naidu demanding Rs. 2,00,000/- but they refused to give the money and the mediators went away. But however, PW-1 agreed to pay Rs. 20,000/- and he gave Rs. 20,000/- to his sister and she went to the house of A-1 but A-1 refused to receive that amount saying that he will not receive the amount less than Rs. 2,00,000/- and hence his sister returned him with Rs. 20,000/- and that amount was deposited in the Bank. The rest of the evidence need not be discussed at length the reason being that acquittal was recorded as far as the charge under Section 302I.P.C. r/w. Section 34 I.P.C. is concerned as against both the accused and the same had attained finality since it is represented that no Appeal had been preferred by the State questioning the same. PW-2 was examined just to depose that he had seen the dead body of Suguna, the wife of the appellant/A-1, and nothing more. PW-3 was examined who had deposed that on 10-3-1996 at about 9 P.M. while he was returning from Polinaidu palle to his village Chinthareddipalli, he saw the appellant/A-1 and the deceased having altercations under a neem tree by the side of the road and A-2 was found sitting there. PW-3 further deposed that he did not evince any interest because he felt it was a quarrel between husband and wife and he also found a scooter parked on the road and he returned home and on the next day morning at 7.30 A.M. he came to know that the deceased died. PW-4 is a resident of Nellepalle Mitta who deposed that the appellant/A-1 has got a convent. He further deposed after knowing the death of the deceased he went to see the dead body and he did not see the deceased or anybody on the previous night and he had also not seen the accused on the previous night at any place. This witness was declared hostile.
9. PW-5 is G.R. Gangaiah Naidu whose name had been referred to by PW-1 in his deposition. The other witness, the alleged mediator, was not examined. PW-5 also was declared hostile.
10. PW-6 deposed that he saw the dead body on 11-3-1996 under a tree by the side of the road and he is the scribe of Ex. P-1. He deposed that Ravinder Reddy and PW-5 came to his village and asked him and Bhupathi Reddi to demand money from the father of the deceased to help the appellant/A-1 to run his school and they have also stated that they any way have to spend money for performing the marriage of the deceased and that PW-6, Bhupathi Reddy, Ravindra Reddy and PW-5 met the father of the deceased and demanded him and he said he cannot pay the amount. He further deposed that the deceased already came away from the house of the appellant/A-1 two months prior to the date of mediation since the appellant/A-1 was demanding money and for non-payment he was harassing her. PW-6 also deposed that PW-1 informed him and Bhupathi Reddy that they were prepared to pay Rs. 50,000/- and the same was informed to PW-5. As already stated supra, PW-5 was declared hostile. The inquest report contains the signature of PW-6 and it is Ex. P-6. PW-6 in cross-examination deposed that he scribed Ex. P-1 at the instance of PW-1 and he is not in good terms with A-1 because he married his caste girl and no doubt several questions were put to this witness relating to the political factions and how he is interested in foisting a false case against the accused. PW-7 no doubt deposed about the death of the deceased and he also deposed that he attended the marriage of the appellant/A-1 with the deceased. This witness also deposed that ten days prior to the death of the deceased, the appellant/ A-1 and A-2 approached him and A-2 and asked him to pursue the father of the deceased to give some money for re-union of the appellant/A-1 and the deceased. On that he approached the father of the deceased and asked him and he informed that he would be able to pay Rs. 50,000/- and the signature shown in the written document is that of PW-7 and it is Ex. P-7 and Ex. P-8 also is in his hand-writing. In the cross-examination this witness deposed that PW-1, his father, PW-6 and other relatives were present when he wrote Ex. P-8 and he wrote Ex. P-8 near Police Station and he wrote Ex. P-8 according to the relatives narration and according to his knowledge the appellant/A-1 and the deceased lived for two months at Chittoor and he was present when the M.R.O. held inquest over the dead body and he had not stated before the M.R.O. anything about the accused asking him to contact the father of the deceased for money and he does not remember the day or date when the accused approached him to contact the father of the deceased for money and he had also not stated before Police when they examined him about the accused approaching him and A-2 asking him to contact the father of the deceased for money. This witness also deposed that he had also not stated before the Police about the father of the deceased agreeing to pay Rs. 50,000/-. No doubt he had denied the suggestion to the effect that it is not true to say that the accused did not at all approach him and never asked him to pursue the father of the deceased to give money to the appellant/A-1. It is pertinent to note that the admission made by this witness in cross-examination that he had not stated before the Police about the father of the deceased agreeing to pay Rs. 50,000/- is definitely a material omission.
11. PW-8 was declared hostile. PW-9 was examined in relation to Ex. P-10. PW-10 also was declared hostile. PW-11 had deposed about Exs. P-15, P-16 and P-17. PW-12 is the Civil Assistant Surgeon who had conducted autopsy over the dead body of the deceased. PW-13 is the Superintendent in R.D.O’s. office who has held inquest over the dead body. Ex. P-6 is the inquest report. PW-14 is the Head Constable who deposed that on 11-3-1996 at 1 P.M. PW-1 presented Ex. P-1 in person in the Police Station and he registered the same as Cr. No. 22/96 under Sections 498-A and 302 I.P.C. and submitted express F.I.Rs. to all the concerned and the copy of the express F.I.R. sent to the Court is Ex. P-19. PW-15 is the Inspector of Police who had received the express F.I.R. and had taken up investigation and this witness deposed about all the aspects relating to investigation and recording the statements and seizure of material objects under the cover of mahazar in the presence of PW-10 and another and prepared the observation mahazar and all other legal formalities to be complied with and most of his evidence is in relation to the charge under Section 302 r/w. Section 34 I.P.C. in relation to which acquittal had been recorded.
12. On the strength of this evidence, now it is to be seen whether the conviction and sentence imposed as against the appellant/A-1 be sustained or liable to be set aside. Reliance was placed on the decision referred (1) supra wherein the Division Bench at para-6 observed :
“Coming to the conviction under Section 498-A I.P.C. under which the accused has been sentenced to simple imprisonment for two years and to pay a fine of Rs. 500/-, the learned senior counsel appearing for the accused has drawn our attention to a judgment of the Supreme Court in Inderpal v. State of M.P. (2002 Crl.L.J. 926). Paragraphs 4, 5 and 7 of the judgment are reproduced below :
“We will consider at first the contention as to whether there is any evidence against the appellant which can be used against him for entering upon a finding that he subjected Damayanti to cruelty as contemplated in Section 498-A IPC. PW-1 – father of the deceased and PW-8 – mother of the deceased have stated that Damayanti had complained to them of her plight in the house of her husband and particularly about the conduct of appellant. PW-4 – sister of the deceased and PW-5 – a relative of the deceased have also spoken more or less in the same line. Exhibit P-7 and Exhibit P-8 are letters said to have been written by Damayanti. In those two letters reference has been made to her life in the house of her in-laws and in one of the letters she said that her husband had subjected her to beating. Apart from the statement to the deceased none of the witnesses had spoken anything which they had seen directly. The question is whether the statements attributed to the deceased could be used as evidence in this case including the contents of Exhibits P-7 and P-8 (letters). Unless the statement of a dead person would fall within the purview of Section 32(1) of the Indian Evidence Act there is no other provision under which the same can be admitted in evidence. In order to make the statement of a dead person admissible in law (written or verbal) the statement must be as to the cause of her death or as to any of the circumstances of the transactions which resulted in her death, in a case in which the cause of death comes into question. By no stretch of imagination can the statements of Damayanti contained in Exhibit P-7 or Exhibit P-8 and those quoted by the witnesses be connected with any circumstances of the transaction which resulted in her death. Even that apart, when we are dealing with an offence under Section 498-A IPC disjuncted from the offence under Section 306 I.P.C. the question of her death is not an issue for consideration and on that premise also Section 32(1) of the Evidence Act will stand at bay so far as these materials are concerned.”
13. Strong reliance was placed on the decision referred (2) supra wherein the Apex Court held :
“The concept of cruelty varies from individual to individual also depending upon the social and economic status to which such person belongs. “Cruelty” for the purposes of constituting the offence under the said section need not be physical and even mental torture or abnormal behaviour may amount to cruelty and harassment in a given case.”
14. No doubt elaborate submissions were made by the learned Additional Public Prosecutor that in view of the proximity of time relating to death after marriage of the deceased, the presumption under Section 113-A of Indian Evidence Act 1872 has to be drawn. There cannot be any controversy about the same. But it is to be seen whether there is any legally acceptable evidence on record so as to confirm the conviction and the sentence awarded by the learned Sessions Judge to the appellant/A-1. It is no doubt true that Section 498-A IPC, Explanation (b), would be attracted where harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. The allegation is that after marriage a demand of an amount of Rs. 2,00,000/- had been made by the appellant/accused and since the brother and father of the deceased were unable to meet the demand the same had resulted in the death of the deceased and this would definitely fall under the aforesaid Explanation. A careful scrutiny of the evidence which had been discussed supra would go to show that virtually no direct evidence is available relating to harassment. It is no doubt true that in several cases it may not be practically possible to get direct evidence relating to harassment under Section 498-A I.P.C. The statements said to have been made either by the deceased or by one to the another would definitely fall under hearsay evidence and such statements are not admissible. The evidence of PW-7 is available, but in cross-examination there is a clear admission that Ex. P-1 was drafted by him and he is having grievance against the appellant/A-1 since he married the deceased belonging to his caste. In the light of this evidence on the simple statement made by this witness it cannot be said that the harassment had been proved. One of the alleged mediators who had approached in this regard, according to PW-1, had not been examined and the other mediator though examined was declared hostile. Even otherwise that is not direct evidence and what was stated is that they had approached to demand some amount from the family members of the deceased. Except this evidence, the other evidence is as vague as vagueness can be and on the strength of such vague evidence, the conviction under Section 498-A I.P.C. cannot be sustained even drawing into aid the presumption available under Section 113-A of the Indian Evidence Act, 1872. It is needless to say that the burden is on the prosecution to establish its case beyond all reasonable doubt and on the strength of such inadmissible and untrustworthy evidence the conviction and the sentence imposed as against the appellant/A-1, in my considered opinion, cannot be sustained since they do not stand to legal scrutiny and the same are liable to be set aside and accordingly the conviction and sentence are hereby set aside. The Appeal is allowed. The bail bonds of the appellant/A-1 shall stand cancelled.