HON'BLE SMT. JUSTICE M.G. PRIYADARSINI
CRIMINAL APPEAL No. 249 OF 2011
JUDGMENT:-
Accused Nos. 1 & 2 in S.C.No.158 of 2010 preferred this
appeal challenging the judgment of the II Additional District &
Sessions Judge (Fast Track Court) at Sangareddy, dated
08.03.2011. Both the accused were charged for the offence under
Section 304-B of IPC for allegedly subjecting the deceased-
Kunchala Gouthami to cruelty demanding additional dowry and
causing her death within seven years of her marriage with A.1.
Through the said judgment, both the accused were convicted for
the offence under Section 304-B IPC and were sentenced to
undergo rigorous imprisonment for seven years each and to pay a
fine of Rs.200/- each, in default, to undergo simple imprisonment
for one month.
2. The gist of the prosecution case leading to the
conviction of the appellants-accused, in brief, is as follows:
P.W.1 is the mother, P.Ws.2 & 4 are the cousins of the deceased.
P.W.3 is the friend of P.W.2. A.1 is the husband and A.2 is the
mother-in-law of the deceased. The deceased is none other than
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the daughter of maternal uncle of A.1. The marriage of deceased
with A.1 took place on 23.08.2002. At the time of marriage,
Rs.40,000/- net cash and other household articles were given as
dowry to the accused. After the marriage, A.1 did not attend any
works and he, along with A.2, started harassing the deceased
physically and mentally with a demand of additional dowry of
Rs.1,00,000/- from her mother and necked her out from the
house. In this connection, a panchayat was held at ECIL,
Hyderabad two months prior to the date of incident in the presence
of their caste elders. During the panchayat, the accused abused
the deceased in filthy language due to which, she felt upset. P.W.1
brought the deceased to Sangareddy twenty days back. On
17.01.2010 in the evening hours, when nobody was present in the
house, vexed with the life, the deceased committed suicide by
hanging with saree to ceiling of the house and died. On the same
day, at 23:00 hours, P.W.1 presented Ex.P. 1 complaint with the
police, basing on which, the Sub-Inspector of Police, Sangareddy
Town Police Station, P.W.11, registered a case in Crime No. 21 of
2010 for the offence under Section 304-B IPC and took up further
investigation having dispatched the FIR, Ex.P.8, to all the
concerned. During the course of investigation, P.W.11 proceeded
to the scene of offence, recorded the statements of the witnesses,
prepared scene of offence panchanama under Ex.P.2, got the
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presence of P.W.13, Talsildar for conducting inquest panchanama,
got photographed the scene of offence and later the body was
subjected to Post-Mortem Examination. The visra of deceased was
sent to the FSL report. He arrested both the accused on
19.01.2010 and produced them before the Court for remand.
Further investigation was taken over by P.W.12, the Sub-Divisional
Police Officer, Sangareddy, who after receipt of necessary reports
and completion of investigation, laid the charge sheet before the
concerned Magistrate against the accused for the offence under
Section 304-B IPC. The accused denied the charges and claimed
for trial.
3. The Judicial First Class Magistrate, Sangareddy, after
securing the presence of the accused and following the due
procedure contemplated under Sections 207 & 209 Cr.P.C.,
committed the case to the Court of Sessions observing that the
offences punishable under Section 304-B IPC is exclusively triable
by the Court of Sessions.
4. In order to prove the guilt of the accused, the
prosecution examined P.Ws.1 to 13 and marked Exs.P.1 to P.8
besides exhibiting the Saree as material object. On behalf of the
defense, D.Ws.1 & 2 were examined and Exs.D.1 and D.2 were
marked. The trial Court after analyzing the oral and documentary
4
evidence, convicted and sentenced both the accused as indicated
above for the offence under Section 304-B IPC.
5. The learned counsel representing the appellants firstly
contended that in absence of any evidence that the deceased soon
before her death was subjected to cruelty, the conviction of the
appellant under Section 304-B IPC cannot at all be sustained. He
further submitted that the trial Court completely overlooked the
most essential ingredient i.e., soon before her death the deceased
must have subjected to cruelty or harassment in connection with
demand for dowry, more particularly when the death of the
deceased was occurred at the house of P.W.1, but not in the house
of accused. Lastly, it was contended that even admitting the
evidence on record, the demand, if any, was made about one
month before the death of the deceased even then by no stretch of
imagination it can be held that soon before her death the deceased
was subjected to cruelty or harassment in connection with the
demand for dowry. It is contended that the trial Court ought not to
have relied on the evidence of P.Ws.1, 2 & 4, as they are family
members and close relatives of the deceased. It is contended that
in the absence of any specific allegation that the appellants
subjected the deceased to cruelty, they cannot be convicted even
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for the offence under Section 498A IPC. Therefore, he prays to set
aside the conviction and sentence imposed by the trial Court.
6. On the other hand, the learned Additional Public Prosecutor
while trying to sustain the judgment of the trial Court, would
contended that although the P.Ws. 1, 2 & 4 are family members of
the deceased, their evidence is cogent and consistent as to the
harassment of additional dowry meted out to the deceased which
forced her to commit suicide and therefore, the appellants were
rightly convicted and sentenced for the offence under Section 304-
B IPC and the judgment of the trial Court needs no interference.
7. In view of the above rival submissions, the point that
arises for consideration is:
Whether the prosecution was able to bring home the
guilt of the appellants-accused for the offence under Section 304-B
IPC beyond all reasonable doubt and whether the conviction, as
recorded and the sentence awarded by the trial Court is liable to be
set aside or modified?
8. As seen from impugned judgment, the trial Court
recorded the conviction mainly based on the evidence of P.Ws.1 to
6. Therefore, it is to be seen that whether the evidence of these
witnesses is sufficient to hold the conviction and sentence recorded
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by the trial Court. For convicting the accused for an offence
punishable under Section 304B IPC, the following pre-requisites
must be met:
1.
that the death of a woman must have been caused by burns or bodily injury or occurred otherwise than under normal circumstance;
2. that such a death must have occurred within a period of seven years of her marriage;
3. that the woman must have been subjected to cruelty or harassment at the hands of her husband, soon before her death; and
4. that such a cruelty or harassment must have been for or related to any demand for dowry.
9. P.W.1 is the complainant who lodged Ex.P.1 complaint with the Police. She stated that the marriage of A.1 with the deceased was performed six years prior to the death of the deceased and at the time of marriage, she gave cash of Rs.40,000/- towards dowry apart from other articles. After the marriage, A.1 did not attend any work and used to come home in intoxicated condition and used to harass her physically and mentally to bring additional dowry of Rs.1,00,000/-. In this connection, two months back, a panchayat was held at ECIL in the presence of caste elders, wherein, the accused abused and beat the deceased. In her deposition before the Court as P.W.1, she has reiterated the contents of Ex.P.1 complaint regarding the harassment meted out to the deceased by the accused in connection with demand to bring more dowry of Rs.1,00,000/-. She stated that a panchayat was 7 held at ECIL in the presence of their caste elders, wherein the brother and sister of A.1 beat her and the deceased. She stated that the panchayat at ECIL was held just 20 days prior to the death of deceased. But in her earlier version in Ex.P.1, she stated that the panchayat at ECIL was held two months back. She brought the deceased to her house 20 days prior to the incident and at that time, the deceased informed her that the accused harassed her for additional dowry. On 17.01.2010, while no one was present in the house, the deceased hanged herself by tying her saree to ceiling hook in her house and died. In the cross- examination, P.W.1 has admitted that she used to visit the house of accused now and then in a month, but the deceased did not disclose anything about the harassment meted out by the accused. She has stated in the cross-examination that when A.1 used to reside at Karimnagar, the deceased went into Coma due to the physical assault of A.1, but no complaint was lodged in that regard. In the cross-examination, she stated that the panchayat was held at ECIL one month prior to the death of deceased. She admitted that in the panchayat held at ECIL, A.1 gave customary divorce to the deceased before the elders and to that effect, signatures were obtained on a divorce document. 8
10. P.W.2 is the sister's son of P.W.1 and cousin of deceased. He is the friend of P.Ws.3 & 4. The testimony of P.W.2 asserts the version of P.W.1 to the effect of harassment meted out to the deceased by A.1. He deposed that he witnessed A.1 harassing the deceased and the deceased informing him the harassment meted out to her by the accused. He deposed about A.1 beating the deceased while they were staying at Karimnagar and the deceased going into Coma and her admission in the hospital at Karimnagar. A panchayat was held in that connection and 15 days thereafter, A.1 continued to beat the deceased. Since the accused continued to harass the deceased, a panchayat was held at ECIL, but he did not attend the said panchayat. Ten days after the panchayat, the deceased was brought to the house of P.W.1 at Sangareddy, where she committed suicide by hanging. He admitted in the cross-examination that he was informed that the deceased had taken customary divorce from A.1 in the panchayat held at ECIL. He denied the suggestion that the accused did not harass the deceased to bring additional dowry of Rs.1,00,000/-. P.W.3 is the friend of P.W.2, who deposed that on the date of incident while he was at his home, P.W.2 came and asked him to accompany him to the house of P.W.1; that he went to the house of P.W.1; broke open the doors and gained entry into the house; and found the deceased in hanging position to a fan with a saree. On 9 enquiry, he was informed by P.W.2 that as there were disputes between the couple regarding demand of additional dowry of Rs.1,00,000/-, the deceased committed suicide. P.W.4, another cousin of the deceased, deposed that after birth of two sons, the accused started demanding Rs.1,00,000/- as additional dowry and the said demand was not met with, A.1 used to beat the deceased. Though he deposed as to the panchayats held at Karimnagar and subsequently at ECIL in connection with the harassment meted out by the accused to the deceased, he has admitted that he was not present at those panchayats. P.W.5, an independent witness, deposed as to his attending the marriage and supported the case of the prosecution regarding payment of dowry amount, other household articles to the accused and subsequently, the harassment meted out to the deceased by them for bringing additional dowry of Rs.1,00,000/-. He is the person who attend the two panchayats held at Karimnagar and at ECIL. He too deposed simply that panchayat was held at ECIL and as the deceased fell ill subsequently, she was brought to Sangareddy and that she stayed at Sangareddy for 20 days and later committed suicide by hanging. P.W.6 is elder sister of P.W.1 and the mother of P.Ws.2 & 4. She asserted the version of P.W. 1 regarding the harassment meted out to the deceased by the accused for bringing additional dowry of Rs.1,00,000/-. She deposed in similar lines 10 with that of P.W.1 as to the panchayats held at Karimnagar and ECIL. In the cross-examination, she asserted that whenever she visited the deceased, the deceased used to inform her that the accused were harassing her. P.W.7 is the witness who speaks about the panchanama conduced in his presence, seizure of saree, police conducting inquest panchanama in his presence and his signing on inquest panchanama. P.W.8 is the neighbour of P.W.1 and he is hearsay witness who speaks that he was informed by P.W.1 that A.1 used to harass the deceased for money. P.W.9 is the Civil Assistant Surgeon, who conducted autopsy over the dead body of the deceased and opined that the deceased died due to hanging. Ex.P.5 is the Post-Mortem Examination Report issued to that effect. P.W.10 is the photographer. P.W.11 is the Sub- Inspector of Police, who speaks about his receiving Ex.P.1 complaint from P.W.1, registering a case in Crime No. 21 of 2010 and issuing FIR, Ex.P8. P.W.12 is the investigating officer, who deposed about the conducting of investigation and filing the charge sheet against the accused. P.W.13, Tahsildar, deposed about his conducting of inquest panchanama in the presence of P.W.7.
11. Ex.D.1 is wedding card and Ex.D.2 is the customary divorce document allegedly obtained in the panchayat held at ECIL. D.Ws. 1 & 2 were examined to prove that the deceased gave 11 customary divorce to A.1 in the panchayat held at ECIL before the elders. The said evidence is not helpful to the case of the defence.
12. As seen from the above evidence of P.Ws.1 to 6, the prosecution was able to establish that after the marriage, the accused subjected the deceased to harassment and cruelty on the demand of additional dowry of Rs.1,00,000/- as their evidence in this regard is cogent, consistent and corroborative with each other. However, the ingredient of cruelty is common to Sections 304B and 498A IPC, but the width and scope of two sections is different, inasmuch as Section 304-B deals with cases of death as a result of cruelty or harassment within seven years of marriage, Section 498A has a wider spectrum and it covers all cases in which the wife is subjected to cruelty by her husband or relative of the husband which may result in death by way of suicide or cause grave injury or danger to life, limb or health (whether mental or physical) or even harassment caused with a view to coerce the woman or any person related to her to meet unlawful demand for property or valuable security.
13. In order to bring home the charge under Section 304B IPC, the prosecution must establish that the death of the woman has been caused by burns or bodily injury or otherwise 12 than under normal circumstances within seven years of her marriage and soon before her death, the woman is subjected to cruelty or harassment by her husband or his relative. However, for the purpose of conviction under Section 498A IPC, it is sufficient to prove that the woman was subjected to cruelty, as elucidated in the explanation appearing below substantive part of the section, by her husband or his relative.
14. The trial Court, based on the above evidence of the P.Ws.1 to 6, came to the conclusion that the cruelty, harassment and demand of dowry was not stopped even after the panchayat at ECIL which made Gowthami to commit suicide. However, as discussed above, the prosecution witnesses have stated that the last panchayat was held at ECIL 20 days/one month prior to the date of death of the deceased and the deceased was brought to the house of P.W.1, where the deceased committed suicide by hanging. None of the prosecution witnesses deposed that subsequent to the panchayat and while the deceased was at the house of P.W.1, there was any demand by the accused or any abuse or assault by them either physically or over phone. It is not even their case that at any point of time the deceased called the accused over phone or there is any specific instance in the interregnum period regarding the harassment or cruelty by the accused that might have forced 13 the deceased to commit suicide. Such being the case, the above findings of the trial Court that the cruelty, harassment and demand of dowry was not stopped even after the panchayat at ECIL are contrary to the evidence on record. In these circumstances, this Court holds that the prosecution failed to make out the case against both the accused for the offence punishable under Section 304-B IPC beyond all reasonable doubt and the accused are entitled to benefit of doubt on this point. However, as observed above, there is substantial evidence to show that an amount of Rs.1,00,000/-was demanded as additional dowry by the accused from P.W.1 and in that connection, they have harassed and caused cruelty to the deceased in connection with which, panchayats were held and the deceased was brought to the house of P.W.1. Therefore, this Court is convinced that the prosecution succeeded in proving that the appellants had subjected the deceased to cruelty attracting the ingredients of Section 498-A IPC. Hence, this Court is inclined to convict both the accused for the offence under Section 498-A IPC by modifying the conviction imposed by the trial Court under Section 304-B IPC.
15. In the result, the appeal is partly allowed. While setting aside the conviction and sentence recorded by the trial Court imposed on the appellants for the offence under Section 304-B IPC, 14 this Court convicts both the accused for the offence under Section 498-A IPC and they are sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.5,000/- each, and in default thereof, they are directed to undergo simple imprisonment for two months. The period already undergone by the accused shall be given set off.
Miscellaneous pending applications, if any, shall stand closed.
______________________________ JUSTICE M.G.PRIYADARSINI 14th NOVEMBER, 2022 Tsr.