Judgment:
N.D. Patnaik, J.
1. This appeal by the State represented by the Public Prosecutor is directed against the judgment of the learned Additional Sessions Judge, Medak at Sangareddy in S.C. No. 47 of 1989 acquitting the respondent/accused in respect of both the charges levelled against him under Sections 302 and 404 I.P.C.
2. In brief the prosecution case is as follows :--
The accused is the son-in-law of P.W. 1. The deceased is the daughter of P.W. I and the wife of the accused. The marriage between the accused and the deceased took place about eight months prior to the date of offence (i.e. 9-12-1988). At the time of the marriage P.W. 1 gave a dowry of Rs. 9,000/- in cash and one tola of gold and clothes and also promised to pay Rs. 1,100/, the balance amount, after some time. Due to financial difficulties that amount of Rs. 1,100/- could not be paid. On 30-11-1988 the accused brought the deceased to the house of P.W. 1 and demanded the balance of dowry and left the deceased at P.W. 1's house. Again on 9-12-1988 he came to the house of P.W. I, reiterated his demand and wanted to take away the deceased with him. This was objected to by P.W. 1 and his wife, P.W. 2 en the ground that it was an inauspicious day being Amavasya. But, still the accused insisted upon taking his wife with him; he took her to Anantharam Jatara but did not return. P.W. 3 happened to see both the accused and the deceased at the jatara and also when the accused was taking the deceased on a bicycle towards Guntanarapally, the native village of the accused. P.W. 4, the village Sarpanch informed P.Ws. 1 and 2 that the accused told him that the deceased was taken away by thieves. Thereafter, P.W. 1 accompanied by one Papireddy went to the outskirts of Sangapur and found the body of the deceased lying there with bleeding injuries on head, back and chest and the saree-hem was thrust in the mouth of the deceased. They also found gold Pustelu and bag of the deceased and also chappals of the accused. Suspecting foul play P.W. 1 sent his brother Sanga Reddy with a petition Ex. P-1 to the Police Station, Jharasangam. P.W. 9, the Head Constable received the same at 9.43 a.m. on 10-12-1988 and registered the same as Crime No. 100/1988 under Section 302 I.P.C; and informed the Inspector of Police, P.W. 10. The Inspector visited the scene of offence and recorded in statements of P.Ws. 1 to 5 and conducted inquest. Ex. P-12 is the inquest report. He also seized M.Os. 1 to 8, clothes and other things. Pursuant to the statement made by the accused M.Os. 17 and 18 gold Kammalu and silver toe rings were recovered under Ex, P-4, panchanama, in the presence of P.W. 7. The Inspector also seized blood-stained shirt and dhoti, M.Os. 19 and 20. The post-mortem was conducted by P.W. 8, Dy. Civil Assistant Surgeon, Government Civil Hospital, Zahirabad and he found several injuries on the dead-body. According to him the death was due to concussion of brain, asphyxia and shock. Ex. P-5 is the post-mortem certificate. P.W. 11, who succeeded P.W. 10 as Inspector after completing the investigation filed the charge-sheet.
3. In support of its case, the prosecution examined in all 11 witnesses and marked 7 documents, Exs. P-l to P-7. P.Ws. 1 and 2 are the parents of the deceased. P.W. 5 is the person from whose shop bicycle was taken on hire by the accused. P.Ws. 6 and 7 are inquest witnesses.
4. The plea of the accused was one of total denial.
The learned Sessions Judge, after considering the evidence has found that the prosecution has not brought home the guilt of the accused. According to the learned Sessions Judge, P.Ws. 1 and 2 did not depose about any harassment of the deceased by the accused for non-payment of dowry. The recoveries M.Os. 17 and 18 were disbelieved since P.Ws. 1 and 2 were not asked to identify the same as jewels belonging to the deceased. One more aspect on which the learned Sessions Judge placed considerable reliance for acquitting the accused is the Ex. P-l, the complaint petition, did not mention about the presence of chappals allegedly belonging to the accused at the scene of offence.
5. The learned Public Prosecutor contends that the view taken by the learned Sessions Judge is clearly unsustainable. The evidence on record establishes the guilt of the accused under Section 302 I.P.C. and the suggestion put to the prosecution witnesses in the cross-examination that when the accused was taking the deceased on a bicycle he was attacked by the thieves and when he fell down the deceased was abducted is too artificial version to carry conviction.
6. We have gone through the evidence carefully. P.Ws. 1 and 2 are the parents of the deceased. P.W. 1, the father, in his evidence although has stated that he had given Rs. 9,900/- as dowry in cash, one tola of gold and clothes and still he had to pay Rs. 1,100/-, did not mention anything about the accused harassing his daughter. Nonetheless, he stated that the accused and the deceased about 15 days before the occurrence came and demanded him to pay the balance of Rs. 1,100/-. From this evidence it is not possible to hold that the deceased was subjected to harassment by the accused. But P.W. 2, the mother of the deceased, has categorically stated in her evidence that the deceased informed her that the accused used to beat her for non-payment of dowry. The Defence Counsel at the time of the trial although made a suggestion to P.W.2 that for the first time she was deposing about the alleged harassment, thereby implying that in her 161 statement she did not refer to this aspect, the omission was not brought on record where the investigating officer, P.W. 10 was in the box. The evidence of P.W. 2 leaves no manner of doubt that the deceased was subjected to harassment by the accused for non-payment of dowry.
7. As to the manner in which the crime was alleged to have been committed, we find strange inconsistencies in the charge-sheet. The allegations in the charge-sheet can be divided into two parts. The first part deals with the harassment of the deceased for non-payment of dowry and the second part is that when the accused was taking the deceased on a bicycle from the jatara to the village, suddenly he developed a desire to have sex with her and when she refused, there was a scuffle and he was beaten by her with a stone and then the accused killed her. There was no allegation in the charge-sheet that the deceased had met with 'dowry death' as defined in Section 304B I.P.C. There was no link in the charge-sheet between the alleged harassment and the death. The reason for the death was altogether different from harassment for non-payment of dowry.
8. From the judgment of the learned Sessions Judge we find certain factual inaccuracies. The finding of the learned Sessions Judge is that in Ex. P-l complaint given by P.W. 1 there was no reference to the presence of chappals allegedly belonging to the accused. This finding is contrary to record. In Ex. P-l it is clearly mentioned that 'chappals of my son-in-law were also lying there itself'. Likewise, the finding that P.Ws. 1 and 2 did not state in their evidence about dowry harassment is clearly incorrect. As already mentioned by us supra, P.W. 2 in her evidence has categorically referred to the harassment of the deceased by the accused for non-payment of the dowry.
9. M.Os. 17 and 18 are the gold ear-rings and silver toe rings recovered under Ex. P-4 in the presence of P.W. 7, the panch witness. Surprisingly, when P.Ws. 1 and 2 were examined these two M.Os., were not put to them for identification. The prosecution case that the jewels belonging to the deceased were found in possession of the accused was not established and the learned Sessions Judge was right in disbelieving the prosecution story in this regard. In this state of evidence it it not possible to draw the conclusion that the accused had committed the murder of his wife Venkamma.
10. The learned Public Prosecutor contends that the evidence on record discloses the offence under Section 304B I.P.C. and therefore the accused must be convicted under that Section. We are not inclined to agree. As already stated by us in the beginning, there was no allegation in the charge-sheet that the deceased was met with dowry death. It was only when there was an allegation the presumption under Section 113B of the Evidence Act is attracted. Further, the charge sheet allegations are to the effect that the death of the deceased was because of her refusal to have sex with the accused when they were returning from the jatara to their village. In this fact situation (situation) we are of the view that it would not be permissible legally to invoke Section 304B LP.C.
11. However, we are of the view that the evidence on record warrants conviction under Section 498A, LP.C. P-W-2, the mother of the deceased has categorically stated in her evidence that the deceased informed her that she was subjected to harassment and that the accused used to beat her for non-payment of dowry amount. No suggestions were brought out in the cross-examination to doubt the veracity of her testimony. We, therefore, find the respondent/accused guilty under Section 498A I.P.C. and convict and sentence him to suffer rigorous imprisonment for a period of three years. The appeal is accordingly allowed to the extent indicated above. The respondent/accused shall be taken into custody for undergoing imprisonment.