Ramagiri Santosh Kumar vs State of A.P.

P.S. Narayana, J.—Ramagiri Santhosh Kumar, Convict No.8211, Central Prison, Warangal, aggrieved by the Judgment of the learned IV Additional District & Sessions Judge, Karimnagar dated 10-4-2003 in S.C.No.539/2001 wherein he was convicted for an offence u/s 304-B IPC and sentenced to undergo Rigorous Imprisonment for 7 years and further convicted and sentenced for an offence u/s 498-A IPC to undergo Rigorous Imprisonment for 2 years and to pay a fine of Rs.500/-, in default to undergo Simple Imprisonment for one month and further convicted for an offence u/s 4 of the Dowry Prohibition Act and sentenced to undergo Rigorous Imprisonment for 2 years and to pay a fine of Rs.2000/- in default to undergo Simple Imprisonment for six months, had preferred the present Criminal Appeal by way of Legal Aid.

The episode of the prosecution in short is that the marriage between the accused and his wife Sunitha, hereinafter referred to as "deceased" was celebrated 8 months prior to the death of the deceased and at the time of marriage, PW-1 agreed to pay a dowry of Rs.85,000/-, out of which Rs.80,000/- was paid on three occasions in cash and an amount of Rs.5000/- was yet to be paid and the accused had been making demands for additional dowry and also articles like colour T.V. and PW-1 promised to give him black and white T.V. and convinced him but on 7-11-2000 PW-1 received information that the deceased was not well and went to see her by which time she died and a ligature mark was found around her neck. Based on the report given by PW-1, Cr.No.178/2000 was registered against the accused for the offences punishable under Sections 304-B and 498-A I.P.C. The same was registered as P.R.C.No.20/2001 and committed to the Court of Session which was made over to IV Additional District & Sessions Judge-Fast Track Court, Karimnagar who had recorded the evidence of PW-1 to PW-12 and marked Exs.P-1 to P-18, MO-1 to MO-3 and also Exs.D-1 to D-6 and ultimately conviction as aforesaid had been recorded and sentences as referred to supra also had been imposed. Hence the present Criminal Appeal.

Sri T.S.N.Murthy, the learned Counsel defending the appellant/accused provided by Legal Aid made the following submissions. The learned Counsel with all emphasis would submit that there are several material discrepancies between Ex.P-1 and the evidence of PW-1 and PW-1 and PW-2 are the wife and husband i.e., the parents of the deceased and PW-3 also is a close relative of the deceased and most of the evidence of these witnesses can be said to be only hear say and definitely not direct evidence. The learned Counsel also would submit that the evidence available on record is highly insufficient to prove the ingredients of the offences with which the accused had been charged with and convicted and sentenced. The learned Counsel also pointed out to Exs.D-4, D-5 and D-6 i.e., Section 161 Cr.P.C. statements of Agaiah, Laxmi and Narahari and would point out that if these statements are taken into consideration the whole episode of the prosecution would become doubtful. The Counsel would submit that though these witnesses were not examined during trial their statements had been recorded by the police and for a limited purpose as specified by Section 172(2) Cr.P.C. the same can be used and hence the accused is entitled to the benefit of doubt. The learned Counsel also had pointed out the discrepancies in between the evidence of PW-1 and PW-2 and also the discrepancies between the evidence of PW-1 and Ex.P-1. The learned Counsel also pointed out that PW-3 was examined after sufficiently a long time by police and no explanation is forthcoming from the side of the prosecution in this regard and hence the delay in recording the statement also may have to be viewed with suspicion. The learned Counsel ultimately would conclude that this is a case where the conviction had been recorded on insufficient evidence and hence acquittal may have to be recorded.

Per contra, the learned Additional Public Prosecutor had pointed out the object and ambit of Section 304-B IPC and would submit that the harassment in relation to the dowry would be within four corners of the house and these are more domestic problems and it is very difficult to get the other independent evidence. The learned Additional Public Prosecutor also would contend that in the present case, apart from the evidence of PW-1, PW-2 and PW-3, the evidence of PW-7 also is available and the conduct of the deceased and the conduct of the accused as deposed by PW-7 also would throw light on the incident. The learned Additional Public Prosecutor also would contend that apart from the statements which had been said to have been made by the deceased to these witnesses there is direct evidence relating to the demand of Rs.15,000/- made by the accused himself and PW-1 deposed about the same and in this view of the matter, the ingredients of the offences charged with had been proved. The learned Additional Public Prosecutor also explained about the scope and ambit of Section 113-B of Indian Evidence Act, 1872 and placed reliance on Zahoor and others Vs. State of U.P., and RADHE SHYAM NARENDRA Vs . STATE OF ORISSA, (1980) 1 SCC 585 .

Heard both the Counsel.

Section 304-B IPC reads as hereunder :

(1) Where the death of a woman is caused by any burns or bodily injury or 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.

Explanation.-For the purposes of this sub-section "dowry" shall have the same meaning as in Sec. 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.

Section 498-A IPC reads as hereunder :

"Whoever, being the husband or the relative of the husband of a woman, subject 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 purposes 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; or

(b) 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 is on account of failure by her or any person related to her to meet such demand.

Section 113-B of Indian Evidence Act 1872, dealing with Presumption as to dowry death, reads as hereunder :

"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.

Explanation.-For the purposes of this section, "dowry death" shall have the same meaning as in Sec.304-B of the Indian Penal Code (45 of 1860).

Ex.D-4 is dated 8-11-2000, the statement of R.Agaiah recorded u/s 161 Cr.P.C. by the police. Exs.D-5 and D-6 also are of the same day, the statements of Ramagiri Laxmi and Ramagiri Narahari recorded u/s 161 Cr.P.C. by the Police. It is not in controversy that these witnesses were not examined during trial before the Court. Submissions at length were made relating to these statements and the doubtful version of the prosecution episode. Sections 161 and 162 Cr.P.C. read as hereunder :

Section 161 Cr.P.C. - Examination of witnesses by police:-

(1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.

(2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.

(3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records.

Section 162 Cr.P.C. - Statements to police not to be signed. Use of statements in evidence :-

(1) No statement made by an person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it, nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement on record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made :

Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with permission of the Court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.

(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of Section 32 of the Indian Evidence Act, 1872 (1 of 1872) or to affect the provisions of Section 27 of the Act.

Explanation :- An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.

Section 172 Cr.P.C. deals with Diary of proceedings in investigation and Section 172(2) Cr.P.C. specifies :

"Any Criminal Court may send for the police diaries of case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial."

The Counsel for the appellant had laid stress on the words "...... aid it in such enquiry or trial". On the strength of these words, submissions were made that these statements can be used for the limited purpose of testing whether the version of the prosecution is bonafide or believable or not, but it is pertinent to note that Section 172(2) Cr.P.C. specifically says "...not as evidence in the case". This is a clear bar of using such material as evidence in the case. The proviso to Section 162(1) Cr.P.C. specifies :

Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination."

Section 145 of the Indian Evidence Act, 1872 dealing with Cross-examination as to previous statements in writing reads :

"A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him."

In Tahsildar Singh and Another Vs. The State of Uttar Pradesh, the Apex Court observed (per majority) :

"The procedure prescribed for contradicting a witness by his previous statement made during investigation, is that, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. The proviso to Section 162 only enables the accused to make use of such statement to contradict a witness in the manner provided by Section 145 of the Evidence Act. It would be doing violence to the language of the proviso if the said statement be allowed to be used for the purpose of cross-examining a witness within the meaning of the first part of Section 145 of the Evidence Act. The argument that it would not be possible to invoke the second part of Section 145 of the Evidence Act without putting relevant questions under the first part thereof cannot be accepted. The second part of Section 145 of the Evidence Act clearly indicates the simple procedure to be followed. To illustrate : A says in the witness box that B stabbed Contract; before the police he had stated that D stabbed C. His attention can be drawn to that part of the statement made before the police which contradicts his statement in the witness-box. If he admits his previous statement, no further proof is necessary; if he does not admit, the practice generally followed is to admit it subject to proof by the police officer. On the other hand, if the witness is asked "did you say before the police-officer that you saw a gas light ?" and he answers "yes", and then the statement which does not contain such recital is put to him as contradiction, the procedure involves two fallacies: one is, it enables the accused to elicit by a process of cross-examination what the witness stated before the police officer. If a police-officer did not make a record of a witness''s statement, his entire statement could be brought on record. This procedure, therefore, contravenes the express provision of Section 162 of the Code. The second fallacy is that there is no self-contradiction of the primary statement made in the witness-box, for the witness has yet not made on the stand any assertion at all which can serve as the basis. The contradiction, under the section, should be between what a witness asserted in the witness box and what he stated before the police-officer, and not between what he said he had stated before the police-officer and what he actually made before him. In such a case the question could not be put at all; only questions to contradict can be put and the question here posed does not contradict; it leads to an answer which is contradicted by the police statement."

In Narayanan and Others Vs. Krishnan and Another, it was held :

"Even if case diary statements are treated as part of police diaries Section 172(2) of the Code authorizes a criminal Court to send for police diaries and use the diaries not as evidence in a case but to aid the enquiry or trial. In other words, even police diaries can be used only to the limited extent of aiding an enquiry or trial. In the course of taking aid from a police diary a criminal Court is not justified in reading confessions and statements found therein and using such material to disbelieve the prosecution case or the defence case."

In State of Kerala Vs. Ammini and Others, the Full Bench of Kerala High Court at para-57 held :

"The Sessions Judge adopted another method to scrutinize the confession. He made a meticulous comparison of Ext.P.40 with the statement of the fourth accused recorded by the police during investigation which is incorporated in the Case Diary file. The Sessions Judge traced out one or two minor discrepancies and blew them up out of proportion and observed that they are "significant omissions which in my view are of some material consequence". One such discrepancy is that the accused mentioned 9-6-1980 as the date of visiting Merly''s house, whereas the date 10-6-1980 is shown in the statement of the police. Another omission is that he mentioned the name of Chinnappan (PW-27) in his statement to the police whereas he did not mention that name in Ext.P.40 (But it is clear that he referred to PW-27 in that statement). The method adopted by the Sessions Judge is one forbidden by law. Section 162 of the Code imposes the inhibition that no statement made by a person to the investigating officer during investigation shall be used for any purpose except as provided in that Section. But the Sessions Judge appeared to be under the impression that he can do so by virtue of Section 172(2) of the Code. That sub-section reads as follows :

"Any Criminal Court may send for the police diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial".

Sub-section (1) enjoins on the police officer making the investigation to enter his proceedings in the investigation day by day, in a diary "setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him and a statement of the circumstances ascertained through his investigation". The diary mentioned in Section 172(1) and the statements recorded u/s 161(3) of the Code are obviously different. Statements recorded u/s 161(3) are covered by the sweep of inhibition contained in Section 162 of the Code. The prohibition imposed in Section 162 cannot be circumvented by resort to Section 172(2) of the Code. The two are different records, though the statements recorded u/s 161(3) and the diary envisaged in Section 172(1) may together be incorporated in the same file which police call "Case diary File", for the sake of convenience. That apart, Section 172(2) itself embodies an inhibition that the diary envisaged in that section is not to be used as evidence in the case. The only use of the diary is "to aid" the Court in the trial, to ascertain the time at which the investigation was begun and closed on each day, the places visited by the officer, and the circumstances ascertained through investigation. It is not a substitute for evidence in the case for the purpose of making a comparison with the testimonies of witnesses or judicial dying declarations or judicial confessions. The Sessions Judge by adopting the above method had committed an illegality".

In EMPEROR Vs. NAJIBUDDIN, AIR 1933 Patna 589 a Division Bench of Patna High Court held :

"Section 162 Cr.P.C. is an application of the rule against hear say evidence contained in Section 60 of the Evidence Act. However, it does more than restate the rule contained in Section 60 Evidence Act because by enacting that no statement made to a police officer, or any record thereof, shall be used "for any purpose at any enquiry or trial" it repeals, by implication Section 157 Evidence Act, so far as concerns statements made to a police officer in the course of an investigation. Hence it prevents a statement made to an investigating police officer, or any record thereof, from being used, either by the prosecution or the defence, for the purpose of corroborating the testimony given at the trial, by the person who made the statement to the investigating officer."

It may be that Section 161 Cr.P.C. statements marked as Exs.D-4 to D-6 of these witnesses whose statements were said to have been recorded by the Police may be beneficial to the defence but in view of the clear bar imposed the same cannot be used as evidence and the learned Judge in the considered opinion of this Court had committed an illegality in getting those statements marked as D-series though it is impermissible in law since those witnesses were not examined during trial and hence the question of contradicting those witnesses with these statements would not arise.

Ex.P-1 given by PW-1 reads as hereunder :

"I am to submit that I am resident of Sharmanagar, Karimnagar and living by artisan. I performed my elder daughter Sunitha''s marriage with one Ramagiri Santhosh Kumar s/o. Lingaiah, R/o. Moolasla (v), occ: RMP on 23-3-2000. I agreed to pay Rs.85,000/- as dowry. Of them, I paid Rs.25,000/- at the time of engagement and remaining Rs.35,000/- and 4 tolas of gold paid in the marriage. I gave other household articles all worth Rs.25,000/- and they lived marital life happily for some days. Thereafter, my son-in-law started harassment against my daughter for additional dowry, and my daughter informed the same to me when she came to my house at Karimnagar. My daughter has further informed that her in-laws and sister-in-law also harassing her for additional dowry of Rs.30,000/-. In the month of September, my daughter and son-in-law came to my house, and my son-in-law demanded me to give Rs.5000/-. Accordingly I got Rs.2000/- from my younger brother - Ravikumar and Rs.3000/- from my brother-in-law - Venkateswarlu and gave to my son-on-law. On the occasion of Dasara festival my wife and son went to get my daughter for festival. Then also my son-in-law demanded my wife and son for additional dowry and refused to send my daughter along with them. The in-laws of my daughter i.e., his father and mother came to my house and also demanded for additional dowry. Again on 25-10-2000, I went to Moolasala for inviting my son-in-law and daughter to my house for Deepavali festival, but my son-on-law refused to attend the festival at my house and demanded to present colour T.V. I prayed my son-in-law that it is not possible to get colour T.V. and agreed to give a black and white T.V. after ten days and get my daughter to Karimnagar.

On 7-11-2000 while myself and my wife were in the house at about 4.00 my sister by name Radhika came to my house and informed that Sunitha was fell ill-health and asked us to go to Moolasala and told us that the above information was conveyed to my sister over telephone by one V.Sathyanarayana, who is related to me. On such information, I along with my inmates went to Moolasala (v), found my daughter''s dead body lying in front of the house and noticed one black mark found around the neck on skin. On enquiry my son-in-law told that at about 11 a.m. she had committed suicide by ''Hanging'', but in fact they killed my daughter by harassing mentally and physically. Therefore justice may be done to me".

PW-1 deposed before the Court that the marriage of the deceased was celebrated on 23-3-2000 and she died on 7-11-2000 by committing suicide by hanging due to demand of dowry. PW-1 also deposed that at the time of marriage he had promised to give an amount of Rs.85,000/- as dowry and at the time of betrothal ceremony he paid Rs.25,000/- and at the time of marriage he gave Rs.35,000/- and gold of four tolas and presented household articles worth Rs.25,000/-. After marriage the couple lived cordially for about three months and about four months after the marriage, the deceased and the accused came to our house together and the accused demanded Rs.15,000/-, but he told him that he was not having any amount but however he paid Rs.5000/- taking from his elder brother and brother-in-law and thereupon the deceased and the son-in-law of PW-1 left the place and went away. This witness also deposed that at the time of Dasara festival his wife and son went to the house of the accused for inviting the deceased and the accused and the accused appear to have told them that he would send the deceased when he was paid Rs.30,000/- and thereupon his wife told his daughter be sent and that they could make such a demand when they come to their house and on her saying so the accused sent the deceased along with his son. On the following day of Dasara festival parents and sister of accused came to their house and demanded Rs.30,000/- saying that they had to discharge some debts and he collected his relatives and in their presence expressed that whatever the amount he agreed to pay had been already paid and that it was not possible for him to pay further amount and requested not to harass the deceased and thereupon they went away. At the time of Deepavali festival he went to the house of the accused for inviting the deceased and accused for Deepavali festival and the accused demanded colour T.V. and thereupon PW-1 promised to give black and white T.V. within ten days and thereupon they went away. However, in the meanwhile the deceased died having committed suicide and on 7-11-2000 at 4 p.m. PW-1''s sister received message on phone to the effect that the deceased was not doing well. Then they went there and found the deceased lying on a mat on the ground and there were injuries on the neck and the left hand palm. PW-1 filed Ex.P-1 complaint before Peddapalli Police Station. This witness deposed that he is a native of Karimnagar proper and hence the deceased was living at Karimnagar and the accused is a resident of Moolasala and the alliance of the deceased with the accused was fixed at the instance of one lady by name Rajeswaramma, their neighbour. Even in cross-examination PW-1 had deposed about certain details relating to the payment of amounts. This witness also deposed that after marriage they were inviting the couple and some times they were going on their own accord and PW-1 also deposed that he did not make an attempt to have any panchayat held through his community people nor he had informed the same to the neighbour Rajeswaramma or to anybody in the village of the accused. This witness denied the suggestion that in the complaint report he got written that the accused had demanded Rs.15,000/- and about the fact that the accused stating to his wife that he would send the deceased when he was paid Rs.30,000/- and this witness also deposed that he got written in the complaint report that the accused had killed the deceased. He further deposed that while his statement u/s 161 Cr.P.C. was being recorded though he stated that he had paid Rs.5000/- he had not stated in the manner recorded as in Ex.D-1. He further deposed that it is true that in his statement u/s 161 Cr.P.C. he did not state about the injury being present on the neck and throat of the deceased. He denied the suggestion that the alliance was not to the liking of the deceased and she was got married by force and that is the reason why she committed suicide.

PW-2 in substance had supported the version of PW-1 and no doubt there are certain minor variations in between the evidence of PW-1 and PW-2. PW-3 is the brother of PW-2 who no doubt deposed about the details but most of evidence of this witness is of hear-say nature since he had deposed what he heard and this witness also deposed that the alliance was fixed through one Rajeswaramma and after marriage he never visited the house of the accused and he has no personal knowledge about the nature of the relation of the accused and he deposed about Ex.P-1 and this witness also deposed that it is not true to say that he deposed to police as in Ex.D-2. Several suggestions put to this witness also had been denied. This is the actual evidence available on record relating to the demand of dowry or additional dowry or additional amount made by the accused and the relatives of the accused.

The evidence of PW-7 is only to the limited extent that the accused is a practicing R.M.P. and the deceased died about two years ago and on the day of incident since he was having some pain in the throat part he went the house of the accused for medicine at about 9 a.m. and the wife of the accused i.e., the deceased was lying on a cot and was weeping and when he asked the accused for getting his medicine the accused replied that he was not in good mood and hence he went away and while he was going away the accused accompanied him to go to calls of nature and when they were returning he heard some cries and when he went to the house of the accused the deceased was found lying and he learnt that the deceased died having committed suicide by hanging. This is the evidence of PW-7.

PW-4 is the Photographer who had taken photos of the deceased. Exs.P-2, P-3 and P-4 are negatives and Exs.P-5, P-6 and P-7 are the positives. PW-5 is the Civil Assistant Surgeon who had deposed about the injuries and issuance of Exs.P-8 and P-9 and issued the opinion after receipt of report from Director, Forensic Science Laboratory, Warangal under Ex.P-10 and opined that the cause of death of the deceased was due to asphyxia due to hanging. The evidence of PW-6 is to the limited extent that he went to the house of the accused for extending wedding invitation of his son and he found the deceased lying on a mat and the body had been covered by cloth. He removed the cloth and had a look at the body and noticed the presence of injury on the front part of the neck or throat and then he informed to Radhika on phone since she is related to him. In cross-examination PW-6 deposed that though he told that there was injury on the neck part he did not state as "vuri vesukunnatlu" marked as in Ex.D-3. PW-8 deposed about M.R.O. conducting inquest and recording the statements of the relatives of the deceased and drafting of panchanama Ex.P-11 and also seizure of saree MO-1 and they gave opinion that the deceased committed suicide by hanging. PW-9 was examined in relation to Ex.P-12 and MO-1. PW-10 is the M.R.O. who received requisition from the S.I. of Police for conducting inquest over the dead body of the deceased. This witness deposed about Ex.P-11 and also that they had noticed the presence of injury on the neck or throat part and panchas expressed opinion that the deceased could have died committing suicide by hanging. He recorded the statements of two persons marked as Exs.P-13 and P-14 and they are the parents of the deceased and after writing their statements he obtained their signatures as well as of the witnesses. The signatures of the parents are Exs.P-13(a) and P-14(a) and his signatures are Exs.P-13(b) and P-14(b). No doubt this witness specifically denied the suggestion that PW-1 and PW-2 had not made any statement as in Exs.P-13 and P-14 respectively.

PW-12 is the S.I. of Police who had received Ex.P-1 and registered Cr.No.170/2000 and sent express F.I.R. marked as Ex.P-18 and examined and recorded the statement of PW-1 u/s 161 Cr.P.C. and made requisition to M.R.O. for holding inquest and PW-11 had taken the further charge of the matter. PW-11 is the Investigating Officer who had deposed about all the other details of investigation. He also deposed that he had not investigated regarding the fact who were present at the time of alliance and at the time of writing Lagna Patrika and he had not seized any photos of marriage function. This witness further deposed that he had not examined and recorded the statements of neighbours of PW-1 and PW-2 and he admitted that he had examined and recorded the statements of Agaiah (LW-5), Laxmi (LW-6) and Narahari (LW-7), all residents of Mulasala village who had deposed in a particular fashion and their statements were recorded as Exs.D-4 to D-6. These are all statements recorded by him u/s 161 Cr.P.C. and these witnesses were examined during trial and hence Exs.D-4 to D-6 cannot be used as evidence even if such statements are beneficial to the accused. It was specifically suggested to this witness that PW-3 was examined after 15 days after the death of the deceased but however the same was denied and the other contradictions were put to this witness and also to PW-12.

On the strength of this evidence the learned Judge recorded the findings and ultimately held the appellant/accused guilty of the offences charged with. No doubt, the learned Additional Public Prosecutor also placed reliance on certain decisions (1) and (2) supra. Delay in examination of eye witnesses by the police may not be generally fatal but there may be circumstances where the Investigating Officer had done the same deliberately and in such a case it may be proved to be fatal (See: Ganesh Bhavan Patel and Another Vs. State of Maharashtra, ). However in the light of the specific denial by PW-11 this aspect need not be discussed further.

It is pertinent to note that though specifically it was deposed that the relatives of the accused went to the house of PW-1 and had made a demand relating to Rs.30,000/- for discharging the debts, except the accused none had been arrayed as accused and the appellant/sole accused alone had been prosecuted. PW-1 is the father of the deceased and PW-2 is the mother of the deceased. The whole evidence of PW-3 is just hearsay. PW-1 deposed about what had been communicated to him. No doubt PW-1 deposed about the demand of amount of Rs.15,000/- straight by the accused and he told him that he was not having money but however paid Rs.5000/- taking it from his elder brother and brother-in-law. No doubt this witness deposed about the demand made by the parents and sister of the accused for Rs.30,000/- to discharge some debts and this witness also deposed about the promise to supply T.V. This is the evidence available on record. This evidence coupled with the evidence of PW-2, if can be taken to be sufficient for the purpose of satisfying the ingredients of Sections 498-A and 304-B IPC and also Section 4 of the Dowry Prohibition Act, is the question. It is pertinent to note that that portion of the evidence what had been communicated to PW-1 by his wife (PW-2) would be hear say in nature. No doubt PW-2 also was examined. It is also pertinent to note that relating to direct demand which the accused said to have made in relation to Rs.15,000/- there is no mention of the same in Ex.P-1. Apart from this aspect of the matter, his elder brother and brother-in-law from whom it is said PW-1 had borrowed the amount and paid to the accused also had not been examined. Rajeswaramma, the lady who had settled the alliance, even according to the version of the prosecution, also had not been examined. The evidence of PW-7, the independent witness, is only to the limited extent that the deceased was lying on the cot weeping and when he asked the accused for medicine he replied that he was not in good mood and except this PW-7 knows nothing about the other affairs. PW-1 also deposed that never he made an attempt to convene any panchayat. It is no doubt true that Exs.D-4 to D-6 cannot be relied upon as evidence since these are Section 161 Cr.P.C. statements of witnesses who were not examined during the course of trial. But the evidence of the Investigating Officer, PW-11, is available to the effect that he had recorded the statements of witnesses Agaiah (LW-5), Laxmi (LW-6) and Narahari (LW-7), all residents of Mulasala village. It is pertinent to note that none of these witnesses had been examined and no other independent evidence also is forthcoming. No doubt submissions at length were made by the learned Additional Public Prosecutor that in cases of this nature such independent evidence would not be available and the presumption u/s 113-B of Indian Evidence Act, 1872 may have to be drawn in aid of the prosecution. In the light of the total absence of independent evidence relating to dowry harassment especially in the light of the discrepancies between Ex.P-1 and the evidence of PW-1, the ingredients of Section 304-B IPC, in the considered opinion of this Court, had not been satisfied. The fact that the deceased committed suicide by hanging cannot be in any controversy in the light of the medical evidence, but it cannot be said to be in relation to the demand of dowry as such. These are all problems more concerned with domestic quarrels within the four walls and independent evidence which would be available may be limited but at the same time equally there should be legally acceptable evidence before the Court for basing the conviction. Hence this Court is of the considered opinion that the conviction and sentence imposed u/s 304-B IPC and also u/s 4 of the Dowry Prohibition Act cannot be sustained and the same are therefore hereby set aside.

It is no doubt true that this Court is of the considered opinion that the ingredients of Section 304-B IPC had not been established. But, on the material available on record this Court is of the considered opinion that the accused is liable to be convicted u/s 498-A IPC only. In Hira Lal and Others Vs. State (Govt. of NCT) Delhi, it was held that the question is whether the case u/s 498-A IPC has been made out even if the accusations u/s 304-B IPC fail and it is to be noted that Sections 304-B IPC and 498-A IPC cannot be held to be mutually inclusive and these provisions deal with two distinct offences and it is true that cruelty is a common essential to both the Sections and that has to be proved and the explanation u/s 498-A IPC gives the meaning of ''cruelty and in Section 304-B IPC there is no such explanation about the meaning of cruelty but having regard to the common background of these offences it has to be taken that the meaning of cruelty or harassment is same as prescribed in the explanation to Section 498-A IPC under which cruelty by itself amounts to an offence. It was further held that u/s 304-B IPC it is dowry death that is punishable and such death should have been occurred within 7 years of marriage and no such period is mentioned in Section 498-A IPC and a person charged and acquitted u/s 304-B IPC can be convicted u/s 498-A IPC without that charge being there, if such a case is made out.

In the light of the evidence of PW-1 and PW-2 relating to the demands made by the relatives of the accused and the accused also in relation to T.V., the ingredients of Section 498-A IPC are attracted. Hence, in the facts and circumstances of the case, the conviction imposed by the learned Judge u/s 498-A IPC is hereby confirmed but the sentence of Rigorous Imprisonment for a period of two years is modified to Rigorous Imprisonment for one year. However, the fine of Rs.500/-, in default to under Simple Imprisonment for a period of one month, is maintained.

The Criminal Appeal is partly allowed to the extent indicated above. It is brought to the notice of this Court that the appellant/accused had already undergone the modified sentence imposed by this Court. If so, it is needless to say that the appellant/accused shall be set at liberty forthwith after computing the period of imprisonment in accordance with law.