JUDGMENT (1) This is an appeal filed by the sole accused against his conviction under Section 304-B I.P.C. and sentence to suffer rigorous imprisonment for seven years.
(2) The facts in brief as spoken to by the P.Ws. are : The accused-appellant is the husband of the deceased Prabhavathi. P.W. 1 is the father of the deceased. The marriage took place on 22-5-1983. P.W. 1 paid a total amount of Rs. 60,000/- towards dowry to the accused and his father. However, the accused was harassing the deceased to get an additional dowry of Rs. 40,000/- from her parents. P.W. 4, who is the maternal-uncle of the wife of P.W. 1 and also of the mother of the accused, admonished the accused for demanding additional dowry. From 1985 to 87 the deceased did not join the society of the accused as the accused went to Gudur for further studies. Even during that period, the accused used to harass the deceased for additional dowry as and when he was visiting the house of P.W. 1. The deceased was also informing about this harassment to her father. In June, 87 the accused completed his studies and from then onwards he used to visit the house of the deceased and her parents once in a week and continued to harass the deceased for the additional dowry. Four days prior to 17-8-1987 the date of incident the accused returned from Gudur and went to his native place Vepakuntla and on coming to know of this the deceased also left for Vepakuntla to join her husband. On 17-8-1987 the accused returned to the house of P.W. 1 along with the deceased from Vepakuntla and seriously demanded P.W. 1 to pay the additional dowry by threatening to desert the deceased. After that demand at about 2-00 p.m. on 17-8-87 the accused and the deceased left for Vepakuntla. About half an hour or one hour later the accused returned to the house of P.W. 1 and inquired whether the deceased came back to the house since she disappeared and not seen. On this P.W. 1 and his relatives searched for the deceased and found her dead-body in the KONERU (reservoir with steps) of Shri Narasimhaswamy temple. P.W. 1 reported the matter to P.W. 7 the S.I., of Police at about 5-00 p.m. on the same day. The crime was registered under Section 304-B IPC. Later P.W. 7 conducted Panchnama in the presence of P.W. 6 and got the dead-body removed with the help of P.W. 2, a rickshaw-puller. On the following day (18-7-87) P.W. 9 conducted the inquest and Ex. P-13 is the inquest report. Later on P.W. 10 took up the investigation, recorded the statements of the witnesses and sent the dead-body for post-mortem. The Doctor, P.W. 5, conducted the post-mortem and issued the certificate, Ex. P-8. He opined that the death was due to asphyxia due to drowning. After completion of the investigation P.W. 10 filed the charge-sheet.
(3) The prosecution in all examined P.Ws. 1 to 10 and marked Exs. P-1 to P-14. The defence marked Exs. D-1 to D-18. When examined the accused denied the allegation of demand for additional dowry and harassment. On the other hand, he pleaded that the deceased and himself were amicable and living with love. The trial Court after considering the entire material on record convicted and sentenced the accused as stated supra. Hence this appeal.
(4) Mr. Padmanabha Reddy, the learned counsel for the appellant, firstly contended that there is no evidence to prove that there was a valid marriage between the accused and the deceased so as to bring in the legal relationship of husband wife for purposes of attracting either S. 304B or 498A, I.P.C.
(5) The prosecution examined P.Ws. 1, 3 and 4 to prove the marriage between the accused and the deceased. P.W. 1 is the father of the deceased. He deposed that he performed the marriage of the deceased with the accused in his village, Balampet, on 22-5-83. At that time the deceased failed Intermediate and the accused was doing B.A. The parents of the accused demanded a dowry of Rs. 60,000/-. Therefore, he paid Rs. 20,000/- at the time of marriage and the balance of Rs. 40,000/- after the marriage. After the marriage the accused got one pregnancy terminated by abortion and a later a child was also born to the deceased and died. In the cross-examination he stated that the marriage was performed in the presence of elders by bride and bride-groom exchanging garlands. The marriage ceremony went on from 7.30 p.m. to 8.30 or 9.00 p.m. P.W. 1 did not remember the name of the person that officiated the marriage. One Tammineni Verrabhadram, Ravella Satyam and Gurram Atchaiah gave UPANYASAMS (speeches) condemning demand and payment of dowry at the time of the marriage. He also stated that there were no rituals of KANNYADANAM or SAPTHAPADHI. However, PRAMANA PATRAMS were written and read at the time of marriage. P.W. 3 is a close relation of P.W. 1 The mother-in-law of P.W. 3 and the mother-in-law of P.W. 1 are sisters. He deposed that the deceased was married to the accused in May, 83, and P.W. 4 and himself arranged the marriage by mediating between the father of the accused and P.W. 1 P.W. 1 agreed to pay a dowry of Rs. 60,000/- and the father of the accused had also agreed to this. The marriage took place in the house of P.W. 1 in his village. The father of the accused wanted the marriage to be arranged not in a traditional fashion of Brahmins officiating it but by exchange of garlands and PRAMANAMS. The marriage therefore was arranged accordingly. P.W. 4 is the maternal uncle of the wife of P.W. 1 and also of the mother of the accused. He deposed that the families of the accuse, P.W. 1 and P.W. 3 consider him as an elderly person for advising their family affairs. Wife of P.W. 3 is his sister’s daughter. The marriage of the deceased with the accused was performed on 22-5-1983. P.W. 1 offered to give a dowry of Rs. 60,000/- ….. Rs. 20,000/- at the time of marriage and Rs. 40,000/- afterwards. The accused and his father agreed for the same. Accordingly Rs. 20,000/- was paid at the time of marriage and the balance later on. The marriage commenced at 7-30 p.m. and over by 9-00 p.m. P.W. 4 invited the elders to come to the stage. One Motuhukuri Narahari of Hyderabad officiated as AACHARI. Gurram Atchaiah and Tammineni Veerabhadram spoke from the stage extolling the novel method of marriage. All the formalities of the traditional marriage were gone through but the Purohit instead of chanting Sanskrit hymns adopted the summary of the Sanskrit in Telugu prose.
(6) From the above evidence it is clear that the marriage was performed in a novel from and the traditional rituals contemplated by S. 17 of the Hindu Marriage Act were not performed. P.W. 1 had specifically deposed that KANYADANAM as also SAPTAPADI were not performed and the marriage was performed by exchange of garlands by bride and bride-groom and by reading out the PRAMANA PATRIK. It is also to be borne in mind that none of the witnesses, P.Ws. 1, 3 and 4, deposed that the method and manner in which the marriage was performed was a customary one in their families. On the other hand all of them said that it was a novel type of marriage. Therefore, the question that arises is whether the marriage in the present case can be said to be a valid one in the eye of law.
(7) The Supreme Court while dealing with an offence under S. 494 I.P.C. in Bhaurao v. State, held that it is essential for the purpose of S. 17 of the Hindu Marriage Act that the marriage should been celebrated with proper ceremonies and in due form. Merely going through certain ceremonies with the intention that the parties be taken to be married, the Supreme Court held, would not make the ceremonies prescribed by law or approved by any established custom. In the instant case the ceremonies prescribed by law, viz. invocation before the sacred fire and Saptapadi, as per the evidence of P.W. 1 – the very father of the deceased – were not performed. Further there is no evidence that mere exchange of garlands and reading out PRAMANA PATRIK are alone the ceremonies that are being performed as per the custom in their families. Not only that, the witnesses P.Ws. 1, 3 and 4, stated that the marriage in question was of a novel type. In Kanwal Ram v. H.P. Administration, the Supreme Court had gone to the extent of holding that the mere admission of the bride-groom – accused that he married the alleged bride is not sufficient to hold that there was a valid marriage unless there is sufficient evidence to prove performance of the essential ceremonies contemplated by the Hindu Law or that the marriage was of a customary type prevalent in their families. To the same effect is the decision of the Supreme Court in Priya Bala v. Suresh Chandra, AIR 1971 SC 1153 : (1971 Cri LJ 939). The decision sought to be relied on by the learned Public Prosecutor in Sumitra Devi v. Bhikan Choudhary, is also to the effect, namely :
“In order that there may be a valid marriage according to Hindu law, certain religious rites have to be performed. Invoking the fire and performing SAPTAPADI around the sacred fire have been considered by the Supreme Court to be two of the basic requirements for a traditional marriage. It is equally true that there can be marriage acceptable in law according to customs which do not insist on performance of such rites as referred to above and marriage of this type gives rise to legal relationship which law accepts.”
No doubt, marriage customary in nature are equally valid. But in the present case there is absolutely no evidence to show that the method and manner in which the marriage in question was performed was customary in the families of the parties. Therefore, in the circumstances and in view of the above decisions it cannot be held that there was a valid marriage between the deceased and the accused so as to bring-in the legal relationship of husband and wife.
(8) The other two decisions, Khageswar Naik v. Domuni Bewa, and Neelaveni v. Venkateswara Rao, 1988 APLJ (Cri) 418 arose in a different set of facts, viz., in the former there ample evidence to establish that it was a customary marriage whereas in the latter S. 50 of the Evidence Act was invoked in the facts and circumstances of that case, and therefore those two cases are of no use to hold that the marriage between the accused and the deceased was a valid one.
(9) At this stage the learned Public Prosecutor contended that irrespective of the question regarding the validity of the marriage S. 50 of the Evidence Act enables the Court to form an opinion regarding the relationship between the deceased and the accused for purposes of attracting S. 304B, I.P.C. or for S. 498A, I.P.C. S. 50 of the Evidence Act runs thus :
“50. Opinion on relationship, when relevant : When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, of any person who, as member of the family or otherwise, has special means of knowledge on the subject is a relevant fact :
Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act, 1869 (4 of 1869) or in prosecution under S. 494, 495, 497 or 498 of the Indian Penal Code (45 of 1860)”.
In this case, the accused himself has admitted that the deceased was his wife. P.Ws. 1, 3 and 4 have categorically deposed that the marriage between the accused and deceased took place by exchanging garlands and reading out PRAMANA PATRIK, that they lived together, one pregnancy was got terminated and later the deceased also delivered a child who happened to die. In view of the admission of the accused and the evidence of P.W. 1, 3 and 4, for purposes of prosecution under S. 304B or 498A, I.P.C. it can safely be held that the prosecution has established the relationship between the accused and the deceased as husband and wife in terms of S. 50 of the Evidence Act. Mr. Padmanabha Reddy, the learned counsel submitted that Sections 304B and 498A, I.P.C. are new incorporations and by oversight the Parliament has not correspondingly amended the proviso to S. 50. of the Evidence Act by excluding prosecutions under Sections 304B and 498A in terms of S. 50. This argument cannot be countenanced for the simple reason that there is a presumption against the legislature that it enacts laws with a complete knowledge of all existing laws pertaining to the same subject, and the failure to bring in the corresponding amendment to S. 50 of the Evidence Act indicates that the intent was not to repeal existing legislation. For this proposition of law, it is relevant to notice the decision of the Supreme Court in Municipal Council v. T. J. Joseph, . There dealing with the question of implied repeal, the Supreme Court held :
“It is undoubtedly true that the legislature can exercise the power of repeal by implication. But it is an equally well-settled principle of law that there is a presumption against an implied repeal. Upon the assumption that the legislature enacts laws with a complete knowledge of all existing laws pertaining to the same subject the failure to add a repealing clause indicates that the intent was not to repeal existing legislation …….”
This Court also in Neelaneni v. Venkateswara Rao, 1988 APLJ (Cri) 418 dealing with an offence of bigamy held :
“One of the conditions to be fulfilled is that they are husband and wife. The relationship of wife and husband comes in if there is a valid marriage. When oral evidence and documentary evidence is available to prove the factum of the first marriage it is not desirable for the Court to insist, that the ceremonies or the custom that have been required for a valid marriage have to be proved in the case of first marriage beyond reasonable doubt. S. 50 of the Evidence Act never contemplated that the presumption cannot as a whole be taken into account. In the case of the first marriage, not only the presumption under S. 50 but also the admissions, declarations and other circumstantial evidence let in by the parties can be taken into consideration.”
Again a Division Bench of this Court in Yedukondalu v. State of A.P., (1988) 1 ALT 1 dealing with an offence under S. 498A, I.P.C. held that the circumstance that the parties were living together as husband and wife by sharing the income and short of typing TALI they were so is sufficient to hold that the relationship of husband and wife is established. In this view of the matter, it is held that the prosecution has established the relationship of husband between the accused and the deceased so as to attract the provisions of Sections 304B and 498A, I.P.C.
(10) Now, the learned counsel Shri Padmanabha Reddy contended that for a conviction under S. 304B, I.P.C. the death must have been a direct result of the act of the husband, i.e., the husband should be a direct participant in the actual commission of the offence of death; and that in cases where the wife commits taking for example suicide the section is not attracted. The learned counsel submitted that to find out the exact scope of S. 304B, the provisions of S. 304B of the Indian Penal Code and S. 113B of the Evidence must be read together.
(11) Section 304B, I.P.C. reads thus :
“304B. Dowry death : (1) Where the death of a woman is caused by any burns of bodily injury of occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death ….”
(12) Section 113B of the Evidence Act is as under :
“113B. Presumption as to dowry death – When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death ….”
(13) A reading of the two provisions together makes it clear that law authorises a presumption that the husband has caused the death of a woman if she happens to die in circumstances not normal and that there was evidence to show that she was treated with cruelty or harassed before her death in connection with any demand for dowry. It therefore follows, as submitted by the learned Public Prosecutor, that the husband or the relative as the case may be need not be the actual or direct participant in the commission of the offence of death. For those that are direct participants in the commission of the offence of death there are already provisions, Sections 300, 302 and 304, in the Penal Code. Further Sections 304B and 113B were incorporated on the anvil of the Dowry Prohibition (Amendment) Act, 1984 the main object of which is to curb the evil of dowry in the society and to make it severely punitive in nature and not to extricate husbands from the clutches of S. 302, I.P.C. if they directly cause death of their wives. As already noted the provisions, Sections 304B and 113B owe their origin to the Dowry Prohibition (Amendment) Act, 1984 and earlier to that no doubt there were provisions, Sections 306 and 498A, I.P.C., but neither of them provide a minimum sentence so as to view dowry deaths with justifiable rigour, and hence followed S. 304B prescribing a minimum sentence of seven years for such dowry deaths and S. 113B of the Evidence Act permitting a legal presumption that it was a dowry death if it is shown that soon before the death of such a woman was subjected to cruelty or harassment for or in connection with any demand for dowry. When the legislation brought in is to curb the social evil, viz. demand for dowry, the interpretation of the provisions must be in consonance with the modern needs. In Dyke v. Elliott, (1872) 4 PC 184 at p. 191 Lord Justice James speaking for they Privy Council stated :
“No doubt all penal statutes are to be construed strictly, that is to say, the Court must see that the thing charged as an offence is within the plain meaning of the words used, and must not strain words on any notion that there has been a slip that there has been a casus omissus; that the things is so clearly within the mischief that it must have been included if thought of. On the other hand, the person charged has a right to say that the thing charged although within the words, is not within the spirit of the enactment. But where the thing is brought within the words, and within the spirit, there a penal enactment is to be construed like any other instrument, according to fair common sense meaning of the language used, and the Court is not to find or make any doubt or ambiguity in the language of a penal statute, where such doubt or ambiguity would clearly not be found or made in the same language in any other enactment.”
This formulation has been approved by the Supreme Court in M. Narayan Nambiar v. State of Kerala, . Referring to the Prevention of Corruption Act, 1947, His Lordship Subbarao, J., observed : “The Act was brought in to purify public administration. When the legislature used comprehensive terminology – to achieve the said – it would be appropriate not to limit the content by construction when particularly the spirit of the statute is in accord with the words used therein” So much so, in the instant case, the Dowry Prohibition (Amendment) Act, 1984 was brought in to curb the social evil and to view the evil with more rigour and therefore S. 304B cannot be given an interpretation so as to limit its content and scope to such of the offences where the husband or the relative, as the case may be, is a direct participant in the actual commission of the offence of death. Accordingly, I find no substance in the contention of the learned counsel that S. 304B, I.P.C. gets attracted only when the accused – husband is a direct participant in the actual commission of the offence of death.
(14) Mr. Padmanabha Reddy proceeded to submit that even if S. 304B, I.P.C. is attracted irrespective of the direct participation of the accused still the prosecution has to prove that the death is not one caused by accidental slip into the KONERU so as to bring him within the four-folds of S. 304B The contention of the learned counsel is that the prosecution has failed to adduce Sufficient evidence to exclude possibility of accidental death and therefore the benefit should go to the accused.
(15) The evidence of P.Ws. 1, 3 and 4 is to the effect that even after payment of the full amount of Rs. 60,000/- agreed to be paid towards dowry, there was a demand for an additional dowry of Rs. 40,000/- by the accused. As per the evidence of P.W. 1 on the dates of the incident also the accused and the deceased came from Vepakuntla to the house of P.W. 1 at about 11-00 a.m. and the accused demanded for additional dowry. P.W. 1 stated that he incurred expenses for the delivery of the deceased and for her maintenance and that he was also having one more daughter to be married. Thereupon, the accused told P.W. 1 that there was no need for P.W. 1 to maintain the deceased and that be would be taking her back in the afternoon. Accordingly, the accused and deceased left the house of P.W. 1 at about 1.30 p.m. and after about half-an-hour the accused came back to the house of P.W. 1 and inquired whether the deceased returned to the house since she was found missing. Then P.W. 1 went to P.W. 3 and all of them searched and searched and at last found her dead-body in the KONERU. P.W. 3 also corroborated this version of P.W. 1. Further, it is in the cross-examination of P.W. 1 that the deceased herself told him that she would go with the accused and that the deceased voluntarily followed the accused in the afternoon. As per the statement of the accused, P.W. 1 and his wife also came to the bus-stand to send them of, that the accused went out for urinals and after return found the deceased missing. Therefore, all of them searched and at last found her dead-body in the KONERU. Even otherwise also, P.W. 1 deposed that the accused himself returned to his house and inquired whether the deceased came back since she was missing and that the accused also made a search along with P.Ws 1 and 3. This conduct of the accused excludes the presence of the accused at the time when the deceased went near the KONERU. No doubt, it is contended by the learned Public Prosecutor that the dead-body was found floating on the other side of the KONERU and therefor the possibility of death by accident is excluded. When the dead-body floats on the water it is like any other object and prone to be influence by the trend of the wind. The dead-body was found floating in the KONERU at about 5-00 or 5-30 p.m. In the Circumstances it cannot be said that the prosecution has in any way succeeded in excluding the possibility of death by accident due to slip into the KONERU. In this view of the matter, the accused cannot be convicted under S. 304B, I.P.C.
(16) The learned Public Prosecutor contended at this stage that even if the accused is not guilty under S. 304B still he cannot escape from the clutches of S. 498A, I.P.C. since there is ample evidence on record to show that the accused has harassed the deceased to bring an additional dowry of Rs. 40,0000/- for which her father, P.W. 1, expressed his inability. P.W. 1 the father of the deceased deposed that the marriage of the deceased was performed with the accused on 22-5-1983. The marriage was negotiated by P.Ws. 3 and 4 and P.W. 1 agreed to pay a total dowry of Rs. 60,000/- out of which Rs. 20,000/- to be paid at the time of marriage and the balance Rs. 40,000/- thereafter. The parents of the accused and the accused agreed for the same. Some time after the marriage the accused demanded for the balance of Rs. 40,000/-. Then P.W. 1 told him that he would pay it after disposing of land and that he was negotiating the sale. As the balance was not paid immediately the accused began harassing the deceased and neglected her also by not visiting the house. Therefore, P.W. 1 asked the accused why he stopped visiting his house. Thereafter the accused had take the deceased they lived together for some time and the accused became pregnant. But without their knowledge the accused got the pregnancy terminated on the pretext that the dowry was not given and that there was no sufficient money to maintain the family. In 1984 the witness (P.W. 1) shifted his residence to Khammam. The accused took away the deceased to his village and did not want the deceased to prosecute her studies. Therefore, P.W. 1 went to their village and requested them to send the deceased so that she could appear for the examinations. Finding that all the harassment was for payment of balance money of Rs. 40,000/- towards the dowry, P.W. 1 sold away his land and paid Rs. 30,000/- cash out of Rs. 40,000/- and also gave a plot worth Rs. 10,000/-. Two months thereafter the accused again began demanding another sum of Rs. 40,000/- on the pretext that P.W. 1 has given more dowry to another son-in-law. Then P.W. 1 old him that he had given a house-site to another son-in-law and not cash and that the value of the property had appreciated and that the accused since demanded cash only he paid him the cash P.W. 1 further deposed that the accused used to beat the deceased and harass her on account of the fact that P.W. 1 did not accede to the demand of the accused for payment of an additional dowry of Rs. 40,000/-. Thereafter the accused left for Gudur for further studies. During that time he used to come to the house to take the decease to his native place and continued to demand the additional dowry whenever he visited the house of P.W. 1. Four days prior to the date of incident, the accused came from Gudur and without halting at the resident of P.W. 1, went straightway to his native Vepakuntla and therefore the deceased herself went to Vepakuntla on 16-8-87. However, on 17-8-87 the accused and the deceased came to the house of P.W. 1 at 11-00 a.m. and the accused again demanded dowry P.W. 1 told him that he incurred expenses for delivery in 1986 of the accused (deceased), for her maintenance and for her education and that he was also to perform the marriage of his another daughter and therefore he was not in a position to pay the additional dowry. Thereupon the accused told that he would take away the deceased with him and that no one need maintain her. Accordingly the accused and the deceased left at 1-30 p.m. on that day and however, at about 2-00 p.m., the accused returned and inquired P.W. 1 whether the deceased returned home as she was found missing. Thereafter, they made a search and found the dead-body of the deceased in the KONERU. This witness was cross-examined at length. One of the questions was that he did not give all these details in Ex. P-1 report. P.W. 1 deposed that he did not give because he was not allowed to give them. He denied the suggestion that the accused and the deceased were living together with love and affection.
(17) The mother-in-law of P.W. 3 and the mother-in-law of P.W. 1 are sisters. P.W. 3 deposed that P.W. 4 and himself arranged the marriage between the parties. P.W. 1 agreed to pay a total amount of Rs. 60,000/- (viz. Rs. 20,000/- at the time of marriage and the balance of Rs. 40,000/- thereafter) towards dowry. Accordingly at the time of marriage P.W. 1 paid Rs. 20,000/- to the father of the accused. After the marriage the accused began demanding for the balance amount of dowry. So, P.W. 1 told the witness (P.W. 3) that he would sell the land and pay it. Father of the accused also complained to him of the same. As the land could not be sold immediately, the accused was asked by P.W. 1 to wait for some time. In 1984, however, P.W. 1 sold the land and paid Rs. 30,000/- in cash to the accused and also gave a plot in lieu of the balance amount of Rs. 10,000/- P.W. 1 told him of this and that the accused and his father also confirmed this. After this payment also, the accused that while staying at Gurdur began demanding an additional dowry of Rs. 40,000/-. When the witness (P.W. 3) told the accused that he has been already paid the agreed dowry the accused stated to him that another son-in-law of P.W. 1 took Rs. one lakh towards dowry. P.W. 3 further stated that the accused harassed the deceased asking her to bring the additional dowry from her father. P.W. 1 and the deceased complained to him of this. Then all of them approached P.W. 4 to resolve the dispute. Then the accuse and his father were called for and questioned. They stated that they were paid Rs. 60,000/- and still they were to be Rs. 40,000/- as it was paid to other son-in-law. Then P.W. 1 stated that he had another daughter to be married and that it was proper to demand further dowry in that manner. P.W. 3 deposed that this happened some time during January, 85. Even afterwards the accused continued the demand for additional dowry and was harassing the deceased in that regard. P.W. 3 continued that on the date of the incident P.W. 1 came to his house, informed him that the accused and deceased came to P.W. 1’s house at bout 11-00 a.m., and the accused was demanding the amount of Rs. 40,000/- and that P.W. 1 pleaded his inability, on that the accused and the deceased left his house and again at about 2.00 p.m., the accused alone came back and inquired whether the deceased came back to the house as she was found missing. Thereupon, P.W. 3 followed them in search of the deceased and ultimately found the dead-body of the deceased in the KONERU. In cross-examination the witness was suggested that he was inimical towards the father of the accused as he did not oblige him in the matter of deleting his name from the list of accused in a murder case. Through the witness admitted that he was involved in murder case but denied that there was any enmity in that regard between him and the father of the accused. It was next suggested to P.W. 3 that he did not state before the police about the payment of Rs. 30,000/- to the accused and giving of plot worth Rupees 10,000/-. No doubt, the suggestion was denied by P.W. 3. But P.W. 10, the investigating Officer deposed that both P.Ws. 1 and 3 did not state their S. 161, Cr.P.C., statement regarding the selling of the land, payment of Rs. 30,000/- to the accused and giving of a plot in lieu of the balance dowry of Rs. 10,000/-. This by itself does not have the effect of discrediting the evidence of either P.W. 1 or P.W. 3, Particularly when the evidence of both these witnesses is quite consistent and corroborating the version of each other in regarding to the demand for additional dowry and also the payment earlier thereto. It is however to be noticed that though the particulars are not stated in the S. 161, Cr.P.C. statements by P.Ws 1 and 3, the daily news paper UDAYAM (Ex. P-5) dated 19-8-1987 made a specific report regarding payment of the dowry of Rupees 60,000/-. In these circumstances the omission is of not much significance. P.W. 4 who is related closely to both parties deposed that he and P.W. 3 settled the alliance, that a dowry amount of Rs. 20,000/- was paid at the time of marriage and the balance agreed of Rupees 40,000/- was paid by P.W. 1 later and that when the accused and his father began harassing the deceased and P.W. 1 for an additional dowry of Rs. 40,000/- he reprimanded them and asked them not to demand any additional dowry. P.W. 4 is a totally disinterested witness having been related closely to both the parties. The mere suggestion that he took some gold and purchased land without any further proof in that regard is of no consequence to doubt the veracity of this witness. Thus, the evidence of of P.Ws. 1, 3 and 4 amply establishes the demand for additional dowry, the payment of dowry Rs. 20,000/- at the time of marriage and 40,000/- thereafter ….. Further Ex.P-2 letter written by the accused to the deceased discloses that the accused was asking her to request her father for money.
(18) The evidence adduced by the prosecution, thus, proves beyond all reasonable doubt that the accused had not only for the balance of agreed dowry but also for additional dowry of Rs. 40,000/-, harassed and coerced the deceased by asking her to get it from her father, P.W. 1 and thus subjected her to cruelty within the meaning of Clause(b) of explanation to S. 498A, I.P.C., and thereby made himself liable for punishment under S. 498A of the Indian Penal Code.
(19) The contention of Mr. Padmanabha Reddy, the learned counsel, at this stage is that the appellant cannot be convicted under S. 498A, I.P.C. in view of the specific acquittal of the appellant recorded under this count by the trial Court. There is obviously slight misconception in the argument addressed. This is a case where the accused was convicted by the trial Court under a major head, namely S. 304B, I.P.C., and it is in view of this conviction the trial Court recorded acquittal under S. 498A, I.P.C. and not because there was a finding to the effect that there was no harassment by demanding dowry so as to amount to ‘cruelty’ meted out to the deceased at the hands of the accused appellant. Now this conviction under S. 304B, I.P.C. called for a modification in view of the fact, as found supra, there was possibility of the accidental death by falling into KONERU. But in so far as subjecting the deceased to cruelty is concerned there is ample evidence let-in by the prosecution to establish the offence under S. 498A, I.P.C. The offence under S. 304 B, I.P.C. contemplated a death, unnatural in nature, which again is on account of cruelty or harassment in connection with any demand for dowry. The trial Court having found that the death was under circumstances not normal nature and that was due to cruelty or harassment meted out to the deceased in connection with the demand for dowry, convicted the accused under S. 304B, I.P.C. While so convicted it ought to have stated that there was no necessity of any conviction under S. 498A, I.P.C. instead of recording acquittal under this court. But, this cannot be taken advantage of to advance an argument that in the absence of State appeal against acquittal of the accused under S. 498A, I.P.C. he cannot be convicted by this Court under that count. Accordingly, I see no force in this contention.
(20) In the result, the conviction of the appellant under S. 304B, I.P.C. is modified into one under S. 498A, I.P.C. On the question of sentence Mr. Padmanabh Reddy submitted that the appellant was already in jail for about a month and that he may be put to fine instead of sending him again to prison. In the circumstances, while confining the sentence to the period already undergone, the appellant is directed to pay a fine of Rs. 20,000/- (rupees twenty thousand only) in default to suffer rigorous imprisonment for one year. From out of this amount, a sum of Rs. 15,000/- shall be paid to P.W. 1., the father of the deceased. The appellant is, however, granted three months time from today to pay a the fine. With this modification in conviction and sentence the appeal is dismissed.
(21) Order accordingly.