HON'BLE SMT. JUSTICE M.G. PRIYADARSINI
CRIMINAL APPEAL No. 393 OF 2012
JUDGMENT:-
This appeal is preferred by the State challenging the
judgment of the Judge, Family Court-cum-Additional Sessions
Judge at Karimnagar, dated 26.10.2009 in S.C. No. 653 of 2008.
The accused, who are respondent Nos. 1 to 3 herein, were charged
for the offence under Section 304-B of IPC for allegedly subjecting the deceased-Anusha @ Kavitha to cruelty demanding additional dowry and causing her death within seven years of her marriage with A.1. Through the said judgment, the accused were found not guilty of the charge under Section 304-B IPC and were acquitted of the said charge.
2. The gist of the prosecution case leading to the conviction of the appellants-accused, in brief, is as follows: P.W.1 & 2 are the father and mother of the deceased. P.W.3 is the junior paternal uncle of the deceased. A.1 is the husband and A.2 and A.3 are the in-laws of the deceased. The marriage of deceased with A.1 took place on 11.05.2007. At the time of marriage, P.W.1 agreed to give dowry of Rs.80,000/- apart from other gold 2 ornaments, but however, he could give only Rs.60,000/- cash and assured to pay the remaining balance amount of Rs.20,000/- on the eve of Ugadi festival. After the marriage, the deceased joined the company of A.1 and she was looked after well for one month. Later, all the accused started harassing the deceased with a demand to bring remaining dowry of Rs.20,000/- and teased her mentally and physically. In this regard, a panchayat was conducted before the elders. However, the accused did not change their attitude and continued the said harassment on the deceased. On knowing the same, ten days prior to the date of incident, P.W.2 went to the house of accused and due to the said harassment, she brought the deceased to their house. Due to the harassment meted out by the accused and on their allegations that she was having illegal contacts, disgusted with the life, on 09.12.2007 at 1900 hours, the deceased went into her room, mixed some unknown poison in the milk and consumed the same. On noticing the same, the brother of P.W.1 and others shifted her to Sriram Hospital at Manthani on motorcycle and on the advice of the doctors, she was shifted to Government Hospital, Manthani, where she died on the same day at 2030 hours. On the next day, at 1100 hours, P.W.1 lodged Ex.P.1 complaint before the Police, basing on which, the Sub-Inspector of Police, Manthani Police Station, P.W.17 registered a case in Crime No. 139 of 2007 against the 3 accused for the offence under Section 304-B IPC and issued FIR, Ex.P.19 to all the concerned. During the course of investigation, P.W.17 proceeded to the scene of offence and sent a requisition to P.W.16, Tahsildar for conducting inquest over the dead body of the deceased which was kept in Manthani Hospital. Further investigation was taken over by the Assistant Superintendent of Police, Godavarikhani, P.W.18. He proceeded to the scene of offence, secured the presence of witnesses i.e., P.Ws.12, 13 and another, before whom he drew the sketch of scene of offence under Ex.P.15 and seized the material objects. He recorded the statements of witnesses. He apprehended the accused on 18.12.2007, produced them before the concerned Magistrate, who remanded them to judicial custody. P.W.15, doctor, conducted autopsy over the dead body of the deceased, preserved viscera and sent the same for forensic lab analysis. After completion of investigation and on receipt of FSL report under Ex.P.18, P.W. 18 laid the charge sheet before the concerned magistrate against all 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, Manthani, after securing the presence of the accused and following the due procedure contemplated under Sections 207 & 209 Cr.P.C., 4 committed the case to the Court of Sessions observing that the offence 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 18 and marked Exs.P.1 to P.22 besides exhibiting material objects 1 to 4. On behalf of defense, no witnesses were examined but Exs.D.1 to D.4 were marked. The trial Court after analyzing the oral and documentary evidence, found all the accused not guilty of the offence under Section 304-B IPC and accordingly acquitted them of the charge.
5. The learned Public Prosecutor, representing the State, has contended that the learned Sessions Judge has committed manifest illegality in acquitting the respondents/accused of the charge under Section 304-B IPC as all the ingredients constituting the offence have duly been established by the prosecution and therefore, the judgment of acquittal is liable to be set aside.
6. On the other hand, the learned counsel appearing on behalf of the respondents/accused has opposed the appeal questioning the acquittal submitting that the judgment calls for no interference as the trial Court has adequately discussed the evidence and arrived at a reasoned conclusion regarding absence of 5 any evidence whatsoever to bring home the guilt of the accused for the offence under Section 304-B IPC beyond all reasonable doubt.
7. The Apex Court in the case of Anjanappa v. State of Karnataka1, at para No. 9, has observed as under:-
"9. It is well settled that an order of acquittal is not to be set aside lightly. If the view taken by the trial Court is a reasonable possible view, it is not to be disturbed. If two views are possible and if the view taken by the trial Court is a reasonably possible view, then the appellate Court should not disturb it just because it feels that another view of the matter is possible. However, an order of acquittal will have to be disturbed if it is perverse...."
8. While recording the order of acquittal, the learned trial Court, at para Nos. 21, 23, 28 & 29, has observed as under:-
"21. There is a delay of 13 hours in lodging complaint in Manthani police station about the death of the deceased Kavitha @ Anusha who died in Community Health Centre, Manthani. Admittedly, the police station, Manthani is situated at a distance of half kilometer from the hospital. P.W. 1 is working as a village servant and he knows whenever any crime occurs immediately the same has to be informed to the police. P.W.17 who registered the F.I.R. (Ex.P.1) after receiving the same from P.W.1 at 11 AM on 10-12-2007 and P.W.18, the Investigating Officer, who conducted the investigation did not explain whether they made any enquiries to know when the hospital was at a distance of half kilometer from Manthani police station, why it took nearly 13 hours for P.W.1 to lodge a complaint. P.W.1 also did not explain when his daughter died at 9-15 PM on 9-12-2007 and when he knows that the matter has to be informed to the police immediately, why he kept quiet till 11 AM on 10-12-2007. On the other 1 2014 Cri LJ 368 6 hand, P.W.2 has stated in the cross-examination that on information given by the doctors, two police constables came to hospital immediately after the death of their daughter and the police were in the hospital through-out the night, which evidence is corroborated by the evidence of P.W.14 (doctor) who pronounced the deceased dead at 9-15 PM stating in Medico Legal Cases they would immediately send intimation to the police whenever such patients are admitted in the hospital and in the present case also, immediately he sent information to Manthani police. Whereas, P.W.17 is completely silent about this aspect. This shows and gives support to the contention of defence counsel that though the deceased died at 9-15 PM on 9-12-2007, after due deliberations only, the complaint was lodged in the police station which is at a distance of half kilometer from the hospital after a delay of 13 hours.
23. According to the evidence of P.W.3 who is none other than the younger brother of P.W.1 and junior paternal uncle of the deceased, there is a doubt about whether any amount was given to A.1 at the time of vara pooja and marriage and whether any promise was made to pay another Rs.20,000/- by Ugadhi Festival. The another important aspect is to be noted that according to P.Ws.1 and 2, one Chinnaiah took initiative in settling the marriage. Certainly, he would have participated in the marriage negotiations also, but he was not examined by the police to know whether any amount was agreed to be given to A.1 or not, and P.W.2 admitted that when A.1 to A.3 started harassing the deceased, they did not inform Chinnaiah or his wife Nirmala about the same.
28. On perusal of the entire evidence produced on record, in my considered view the prosecution has failed to give any reasonable explanation for the inordinate delay of 13 hours in lodging the complaint after the death of the deceased Anusha @ Kavitha in Govt. Hospital, Manthani when the police station is situated at a distance of only half kilometer from the hospital. When the evidence shows as admitted by P.W.2 and P.W.14 (doctor) that after the death of the deceased Anusha @ Kavitha, immediately, the matter was informed to the police and two police constables immediately visited the hospital on the night of 9-12-2007 itself 7 and they were in the hospital through-out the night, in such circumstances, there is no explanation from P.W.17 or P.W.18 about the delay of 13 hours in registering the case. The evidence before the court also shows the deceased Anusha @ Kavitha studied upto Intermediate and A.1 is an uneducated person. It gives support to the case of defence that actually the deceased Anusha @ Kavitha was not interested to marry A.1 and she wanted to pursue her studies and she did not want to go for coolie work. P.W.2 also admitted that before marriage, the deceased Anusha @ Kavitha never went to coolie work. Further, according to P.W.1, on the day the deceased Anusha @ Kavitha committed suicide, she talked with A.1 through the cell phone of P.W.5, but she did not disclose about her conversation with A.1. Whereas, according to P.W.5 Jenjerla Shekhar, on the day the deceased Anusha @ Kavitha committed suicide, he was not at all in Eklaspur and he was at Godavarikhani. In Ex.P.1 it is not stated that on 9.12.2007 on which date the deceased Anusha @ Kavitha committed suicide, she had a talk with A.1 through the cell phone of P.W.5 Jenjerla Shekhar.
29. The evidence before the Court further shows the deceased Anusha @ Kavitha being a lady studied upto Intermediate was not willing to live with A.1 to A.3 who are accustomed to do coolie work and agricultural work in their fields, and she was frequently going away to her parents house as stated by P.W.8 and when P.Ws.1 and 2 asked her to go to her in-laws' house, perhaps she might have committed suicide as she was not willing to go to her in-laws' house. When two versions emerged from the evidence placed before the Court, the Court has; to take a version which is favourable to the accused persons. In the said circumstances, as the prosecution has failed to prove beyond all reasonable doubt that A.1 to A.3 were harassing the deceased Anusha @ Kavitha for an amount of Rs.20,000/- which was allegedly promised to be given before Ugadhi Festival and as A.1 to A.3 were suspecting the character of the deceased Anusha @ Kavitha, she committed suicide, the A.1 to A.3 are entitled to benefit of doubt and they are entitled to acquittal...." 8
9. To sustain a conviction under Section 304-B IPC, the prosecution is required to establish prima facie case that death was unnatural, it was within seven years of the marriage, the deceased was subjected to cruelty or harassment, such cruelty or harassment was soon before death and that the cruelty and/or harassment was for the purpose of dowry. If any of these ingredients are missing, Section 304-B cannot be invoked. In the case on hand, there is no dispute regarding the relationship of the accused with the deceased. According to the doctor, P.W.15 and Ex.P. 18, the cause of death of the deceased was due to cardiorespiratory arrest due to acute Endosulfan, an insecticide poison. There is also no dispute on the point that within seven years of her marriage, the deceased died in unnatural circumstances. According to P.W.1, as he could not pay the balance dowry amount of Rs.60,000/-, one month after the marriage, the accused started harassing the deceased for non- payment of balance dowry amount. Five months after the marriage, in regard to the harassment meted out by the accused, a panchayat was conducted before the elders and ten days thereafter, when P.W.2 visited the house of accused, the deceased informed her about the continuous harassment of accused and therefore, she brought the deceased to their house. But he has not deposed anything about the proximate incident by the accused 9 soon before the death of the deceased that might have forced to commit the suicide. Although he deposed that two days prior to the incident, while the deceased was in their house, A.1 telephoned to P.W.5 and the deceased went and spoke with A.1 through the cell phone of P.W.5, he did not state the said incident in his complaint in Ex.P.1. He further stated that the deceased did not inform him anything about her conservation with A.1. In the evidence of P.W.2, there is no mention as to the telephone conservation with A.1 through the cell phone of P.W.5. Even with regard to the payment of dowry amount there is contradiction in the evidence of P.W.2. In this regard, it is her evidence that they have agreed to give Rs.80,000/- in cash though the accused demanded Rs.1,80,000/-. But P.W.1 nowhere stated that the accused demanded Rs.1,80,000/-. P.W.2 further admitted that she did not inform the alleged harassment meted out to the deceased to Chinnaiah or his wife, who arranged the marriage alliance of deceased with A.1. Even P.W.5 in his evidence did not whisper anything about the factum of A.1 calling him on the date of incident and the deceased speaking with A.1 through his cell phone. It is curious to note that in the cross-examination, he had admitted that on the day when the deceased committed suicide, himself and his family were in Godavarikhani for attending a function at the house of his sister's daughter. Thus, though the 10 prosecution tried to establish that soon before the death of the deceased, A.1 had conservation with the deceased through the cell phone of P.W.5, the same has not been proved with cogent evidence. Therefore, the prosecution has failed to prove that soon before the death of the deceased, she was subjected to cruelty on account of demand of dowry, which is the essential ingredient to attract the offence under Section 304-B IPC. Furthermore, as rightly observed by the trial Court, there is no plausible explanation from the prosecution regarding the delay of 13 hours in lodging the complaint, more particularly when the police station is at a distance of half kilometer from the Government Hospital, Manthani and though two police constables were present at the hospital throughout the night of 9-12-2007. That apart, a perusal of the evidence, it also appears that the fact regarding demand of dowry itself is suspicious. Therefore, this Court is of the opinion that there is no manifest legal error in the judgment of acquittal recorded by the learned Judge, Family Court-cum- Additional District & Sessions Judge at Karimnagar and this Court does not consider it a fit case where this Court should re- appreciate the entire evidence on record or it is not a case where the view taken by the trial Court is so arbitrary or bears manifest error requiring interference by this Court. Thus, keeping in mind the principles laid down by the Apex Court in Anjanappa case 11 (supra) and in light of the findings recorded in the foregoing paragraphs, the appeal is devoid of merits is liable to be dismissed.
10. In the result, the appeal stands dismissed confirming the order of acquittal recorded by the Judge, Family Court-cum- Additional District & Sessions Judge at Karimnagar in S.C. No. 653 of 2008, dated 26.10.2009 in acquitting the accused of the charge under Section 304-B IPC.
Miscellaneous pending applications, if any, shall stand closed.
______________________________ JUSTICE M.G.PRIYADARSINI 23rd NOVEMBER, 2022 Tsr.