HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY
Crl.A.No.238 OF 2017
ORDER :
This Criminal Appeal is filed against the judgment in S.C.No.392 of 2012 dated 27.02.2017 on the file of V Additional Sessions Judge, Kothagudem, wherein A-1 was found guilty for the offence punishable under Section 304-B of IPC and sentenced him to undergo rigorous imprisonment for a period of seven years and acquitted A-2 and A-3 for the aforesaid charge.
2. The brief facts of the prosecution are that the Sub- Divisional Police Officer, Kothagudem laid charge sheet against A-1 to A-3 before the III Additional Judicial Magistrate of First Class, Kothagudem, in Crime No.126 of 2011 on the file of III town police station, Kothagudem, for the offences punishable under Section 304-B of IPC.
3. The facts culled out of the charge sheet are that Vengala Venkata Lakshmi and Vengala Venkateshwarlu are 2 GAC, J Crl.A.No.238 of 2017 the parents of the deceased i.e., K.Hemalatha. The marriage of the deceased was performed with A-1 at Kothagudem, who used to drive an auto for his livelihood and they were blessed with a daughter. The accused/A-1, his mother/A-2 and his brother/A-3 used to quarrel with deceased demanding her to bring additional dowry and to sell out the flat purchased on her name. The deceased informed about the disputes on phone to her parents who inturn approached P.W.1, who is the maternal uncle of the deceased and P.W.4, relative of the deceased and later a panchayat was held where the matter was pacified. Inspite of it, A-1 to A-3 did not change their attitude and continued to harass the deceased. The deceased and A-1 got separated from A-2 and A-3 and they started living separately in a rental house of Kodem Lakshmi/P.W.7. On 08.08.2011, the mother of the deceased came to Kothagudem in order to attend the death anniversary of her mother at the residence of P.W.1. The deceased and A-1 also attended the said function. A-1 left P.W.1 house after having lunch and deceased returned home at 9 p.m. On the said day, the father 3 GAC, J Crl.A.No.238 of 2017 of the deceased visited deceased house, stayed upto 11 p.m. and thereafter left for Bhupalpally. P.W.7 observed the arrival and departure of the father of the deceased. Thereafter, both A-1 and the deceased quarreled on some issue and P.W.7 being the elderly women warned A-1 and slept. On 09.08.2011, at about 7 a.m., A-1 came out of the house and informed P.W.7 that his wife committed suicide by hanging and later informed the same to the parents of the deceased and others. The parents of the deceased and P.W.1 to P.W.7, visited the scene of offence and they came to a conclusion that A-1 might have killed the deceased or the deceased might have committed suicide due to unbearable harassment made by A-1 to A-3.
4. Basing on the complaint given by the mother of the deceased, the Station House Officer, III Town, Kothagudem registered a case in Crime No.126 of 2011, for the offence punishable under Section 304-B of IPC against the accused/A-1 to A-3.
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5. During the course of investigation, the Investigating Officer has recorded the statements of prosecution witnesses, conducted scene observation panchanama, crime detail report, further conducted inquest over the dead body of the deceased and forwarded the dead body of the deceased for post mortem examination. He also effected arrest of the accused and remanded them to judicial custody. After completion of investigation, he laid a charge sheet against all the accused, for the offence punishable under Section 304-B of IPC.
6. The trial Court has framed charge against A-1 to A-3 for the offence punishable under Section 304-B of IPC for which the accused denied the charge and claimed to be tried.
7. On behalf of the prosecution, P.Ws.1 to 15 were examined and Exs.P.1 to P.12 were marked. On completion of prosecution evidence, A-1 to A-3 were examined under Section 313 Cr.P.C and they denied incriminating evidence of prosecution and reported no defence evidence. 5
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8. Basing on the oral and documentary evidence on record, the trial Court has framed the following point for determination:-
"Whether the prosecution has proved its case against accused A-1 to A-3 for the charge under Section 304-B of IPC beyond all reasonable doubt?"
9. Considering the oral and documentary evidence on record, the trial Court found A-1 alone guilty for the offence punishable under Section 304-B of IPC and sentenced him to undergo rigorous imprisonment for a period of seven years and acquitted A-2 and A-3 for the aforesaid charge.
10. Being aggrieved by the judgment of conviction, the present appeal has been preferred by the appellant.
11. It is the contention of the learned counsel for the appellant that the trial Court has relied only on the evidence of P.Ws.1 to 4 and acquitted A-2 and A-3 and as such, A-1 is 6 GAC, J Crl.A.No.238 of 2017 also entitled for benefit of doubt along with A-2 and A-3 as they were acquitted for the same set of facts.
12. He further contended that the prosecution has miserably failed to prove that soon before the death of the deceased, she was subjected to harassment for demand of additional dowry. Therefore, the benefit of doubt has to be extended to the appellant. Further, the deceased was not the legally wedded wife of the accused and no divorce was proved before the Court as to the deceased with her first husband, as such, the question of marriage between the accused and the deceased was also not proved by the prosecution. Therefore, the presumption under Section 113 of Indian Evidence Act does not arise. It is also contended that no direct evidence was found for the dowry harassment and that P.Ws.1, 2, 4 and 6 are relatives and interested witnesses of the prosecution and the trial Court cannot give any weightage to their evidence for convicting the accused. Therefore, prayed to set aside the judgment and acquit the appellant.
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13. On the other hand, learned Assistant Public Prosecutor contended that the trial Court has proved the guilt of the appellant/accused beyond reasonable doubt and there is no error or irregularity in the orders passed by the trial Court and prayed to confirm the judgment.
14. The points that arose for consideration is that "whether the judgment of the trial Court needs interference and whether prosecution has proved the guilt of the appellant beyond reasonable doubt."
15. It is relevant to mention the date of offence. The incident took place in the intervening night of 8/9-08-2011. Ex.P-3 is the report preferred by Vengala Venkata Lakshmi who is the none other than the mother of the deceased. The scribe of Ex.P-3 is P.W.8 and it was marked through him, as parents of the deceased died prior to the trial.
16. In order to have better appreciation of facts, the relationship between the parties is to be discussed. 8
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17. P.W.1 is the paternal uncle of the deceased, P.W.2 is the cousin, P.W.3 is one of the neigbour, who turned hostile and P.W.4 is the paternal uncle who partly turned hostile. Exs.P-1 and P-2 are the statements of P.W.3 and P.W.4 recorded under Section 161 Cr.P.C., P.W.5 is the sister of the deceased, P.W.6 is the owner of the house of P.W.1 and P.W.7 is the owner of the house in which the deceased and the accused lived together, prior to the death of the deceased. P.W.8 is the scribe of Ex.P-3/complaint/report. P.W.9 is the photographer, P.W.10 and 11 are the panch witnesses for the inquest and scene of offence. P.W.12 is the Tahsildar, who conducted inquest over the dead body of the deceased and P.W.13 is the Doctor who conducted post mortem examination on the dead body of the deceased. P.W.14 is the Sub-Inspector of Police who registered the case and P.W.15 is the Investigating Officer, who investigated the entire case and laid charge sheet against A-1 to A-3.
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18. The evidence of P.Ws.1 and 4 who are the paternal uncles of the deceased clearly disclose about the marriage that took place between the accused and the deceased. Their evidence also disclose that the deceased Hemalatha got divorced from her 1st husband named Ravi and later she got married to the accused No.1 and an amount of Rs.50,000/-, 4 tulas of gold, one house plot at Shamshabad was given as dowry. Thereafter, the deceased joined A-1 and lead marital life at her in laws place and gave birth to a female child. Their evidence further disclose that after one year of their marriage, the accused started harassing the deceased demanding her to get additional dowry and also insisted her for alienation of the plot which was on her name. In that connection, a panchayat was held and matter was pacified. But there was no change in the attitude of A-1. On 08.08.2011, the deceased and her husband went to the house of P.W.1 on the eve of the death ceremony of his mother and after the function, A-1 left the house after lunch and the deceased was sent to her house through his son, in the night. 10
GAC, J Crl.A.No.238 of 2017 On the next day morning i.e., 09.08.2011 at about 7 a.m., A-1 along with his friend came on a motorbike and informed him that the deceased has committed suicide by hanging herself to a ceiling fan. On that, they all rushed to the house of the accused and found the deceased in hanging position and her legs touching to the ground. On seeing the position of the deceased, P.W.1 suspected that the accused might have committed the murder of the deceased.
19. As already stated supra, the parents of the deceased are no more and as such, there is no evidence of the parents of the deceased. Ex.P.3 is the report given by the mother of the deceased which was scribed by P.W.8. The evidence of P.W.8 supports the case of the prosecution in all aspects as to the contents of Ex.P-3/report. He specifically stated that at the instance of the mother of the deceased, he scribed Ex.P-3 report and his signature was also found on Ex.P-3.
20. In order to prove the offence under Section 304 of IPC, it is for the prosecution to prove mainly three ingredients i.e., 11 GAC, J Crl.A.No.238 of 2017 (1) the death of the deceased woman was caused by burns or bodily injury or occurred otherwise than under normal circumstances, (2) Such death should have occurred within seven years of marriage; (3) deceased was subjected to cruelty or harassment by the husband or any relative of the husband in connection with the demand for dowry; and such harassment must have committed to the deceased soon before her death.
21. The evidence of P.Ws.1, 2, 4 and 5 disclose about the marriage of the deceased with the accused, about the dowry given by the parents of the deceased, including the presentation of house plot. Their evidence also disclose that deceased was demanded for additional dowry, subsequent to her marriage and with regard to the same, panchayats took place in the presence of P.Ws.1 and 4 and the matter has been pacified. Their evidence further disclose that inspite of it, A-1 has not changed his attitude.
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22. Further, on 09-08-2011 at about 7 a.m. the accused first informed P.W.7, who is the owner of the house about the death of the deceased. P.W.7 is the independent witness. Her evidence disclose that A-1 and the deceased used to live in her house on rent. Admittedly, her evidence do not disclose about the harassment or quarrels between the accused and the deceased. Her evidence can be taken into consideration only with rest to A-1 and deceased residing in the house. The evidence of P.Ws.1, 4, 5 and 6 disclose that all the relatives of the deceased came and witnessed the dead body of the deceassed which clearly disclose that the deceased died in the said house.
23. The other evidence in this case is that of the photographer and panch witnesses/P.Ws.9 to 11. Their evidence disclose that at the instance of the Police, they visited the scene of offence, took photographs and the Police have observed scene of offence, prepared crime detail report and inquest report. Ex.P.4 are the photographs of the dead 13 GAC, J Crl.A.No.238 of 2017 body of the deceased which are 18 in number. P.Ws.10 and 11 are the panch witnesses to the crime and inquest and their signatures were got marked as Exs.5 to P.8, as they turned hostile.
24. P.W.12 is the Tahsildar who conducted inquest over the dead body of the deceased basing on the requisition of Inspector of Police, III town Police station. His evidence disclose that he came to know that the death of the deceased occurred due to demand of additional dowry and harassment of all the accused. The inquest report was marked as Ex.P.9
25. P.W.13 is the Doctor. His evidence clearly disclose that he conducted post mortem examination on the dead of the deceased and opined that the death of the deceased was caused "Due to Asphyxia due to cardio respiratory arrest due to hanging." Ex.P10 is the postmortem examination report. As per his evidence, it can be construed that the death of the deceased is not a natural one and it occurred otherwise than natural circumstances.
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26. It is relevant to mention that the deceased died within two years of her marriage and there was demand for additional dowry soon before her death. P.W.6 is son of P.W.1 who dropped the deceased on the night of 08.08.2011, after the function at their house. On the next day, they found the dead body of the deceased in a standing position hanging and feet touching the ground. Admittedly, there are minor discrepancies in the evidences of the prosecution witnesses but they did not go to the root of the case of the prosecution, so as to interfere with the judgment of the trial Court. Moreover, lacunas on the part of the prosecution cannot rule out or brush away the entire case of the prosecution.
27. Learned counsel for the appellant relied on the judgment of the Apex Court reported in Baijnath And Others vs. State of Madhya Pradesh1, wherein it is held as follows:-
"Noticeably this presumption as well is founded on the proof of cruelty or harassment of the woman dead for or in connection with any demand for dowry by the person 1 (2017) 1 SCC 101 15 GAC, J Crl.A.No.238 of 2017 charged with the offence. The presumption as to dowry death thus would get activated only upon the proof of the fact that the deceased lady had been subjected to cruelty or harassment for or in connection with any demand for dowry by the accused and that too in the reasonable contiguity of death.
Such a proof is thus the legislatively mandated prerequisite to invoke the otherwise statutorily ordained presumption of commission of the offence of dowry death by the person charged therewith.
The predicament of the prosecution is compounded further by the by its failure to prove, the precise cause of the death of the deceased. It is not clear as to whether the death has been suicidal or homicidal. It is also not proved beyond doubt, the origin and cause of the external injuries. Though the obscurity of the causative factors is due to the putrefaction of the body, the benefit of the deficiency in proof, logically would be available to the persons charged.
(40) In all, tested on the overall scrutiny of the evidence as a whole, in our comprehension, the conviction of the accused persons including the appellants herein on the basis of the materials on record would not be out of risk. To reiterate, the prosecution has failed to prove the crucial ingredient of cruelty and harassment by direct and cogent evidence thereby disentitling itself to the benefit of the statutory presumption available under Section 113B of the Act."
28. He also relied on the judgment of High Court of Andhra Pradesh reported in G.M.Ravi alias G. Purushotham vs. State of A.P.2 wherein it is held as under:- 2
2004 CRI.L.J.1861 16 GAC, J Crl.A.No.238 of 2017 "All the witnesses in the present case, who have deposed, have only stated what according to them was told by the deceased to them with respect to the harassment meted out to her by her husband. None of these statements comes within the purview of Section 32 of the Evidence Act. Therefore, these statements in view of the judgment of the Supreme Court referred to above, are not at all admissible in evidence. There is not a single witness who has stated that he/she had personal knowledge of the harassment of the deceased by the appellant. Even the father of the deceased, who stated that the accused had demanded Rs. 10,000/- for the purpose of filing an appeal in the High Court, did not state that a demand for money was made to him by the accused. He stated that the demand was made on telephone by his own daughter, the deceased. According to him, the accused had asked his wife, that is the deceased, to demand money from him. Again this evidence is not admissible under Section 32 of the Evidence Act. Therefore, conviction under Section 498- A, IPC also cannot sustain and is set aside."
29. He further relied on the judgment of the Apex Court reported in Ramaiah alias Rama vs. State of Karnataka3, wherein it is held as under:-
"In addition to the aforesaid material aspects which are highlighted from the evidence of the prosecution witnesses, most important feature which is accepted by these witnesses is that in so far as the appellant individually is concerned, there was no demand of dowry by him. In the absence of any particular allegation against the appellant in this behalf, would be improper to convict the appellant under Section 498-A IPC.3
2015 (1) ALD (Crl.) 196 (SC) 17 GAC, J Crl.A.No.238 of 2017
22. We find that the High Court has ignored the aforesaid features which are elaborately discussed in the judgment of the trial court, culling from the depositions of the prosecution witnesses. The High Court, while accepting the version of the prosecution on this aspect, namely, Laxmi was harassed and humiliated because of demand of dowry made by the appellant, has embarked on the discussion which is general and non-specific in nature. Even if there is little evidence, that is too infinitesimal to convict the appellant, more so when that is not only self contradictory but also surrounded by other weighty circumstances that go in favour of the accused. Once we find that the demand of dowry and harassment on that account is not proved beyond reasonable doubt, question of invocation of Section 113 Evidence Act would not arise. We feel that the High Court has been totally influenced by the fact that Laxmi had died within 6 months of her marriage and it was an unnatural death.
23. No doubt, it was so. But only for this reason, the High Court could not have convicted the appellant by finding him guilty of offence under Section 304-B of IPC as well by primarily relying upon the provisions of Section 113- B of the Evidence Act.
24. We are conscious of the fact that it was an unfortunate demise of Laxmi who died within 6 months of the marriage. However, at the same time, whether her death was accidental as claimed by the defence or it was a suicide committed by Laxmi, is not clearly established. Had the allegations of demand of dowry and harassment of Laxmi were established thereby making it an offence under Section 498-A of IPC, things would not have been different. However, when we do not find dowry demand and harassment of Laxmi to be established, the inferences drawn by the High Court taking the aid of Section 113- B of the Evidence Act also deserve to be discarded. Section 113-B of the Evidence Act reads as under:
"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 18 GAC, J Crl.A.No.238 of 2017 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." A plain reading of the aforesaid provision would demonstrate that to attract the presumption as to dowry death stated in the aforesaid provision, it is necessary to show that soon before her death, she had been subjected by such persons to cruelty or harassment for, or in connection with, any demand for dowry. When this essential ingredient has not been established in the present case, the question of drawing any presumption by invoking of the aforesaid provision would not arise."
30. The above said citations do not apply to the facts and circumstances of the present case. In the above said case i.e., G.M.Ravi alias G.Purushotha's case (supra) dying declaration was recorded whereas in the present case, there was no dying declaration recorded as the deceased died at her house by hanging, which is not a natural death. Therefore, the question of recording dying declaration in this case would not arise.
31. The evidence of P.Ws.1 to 4 clearly disclose about demand of additional dowry made by the accused prior to the death of the deceased and the harassment made by the accused. Therefore, the above said citations are no way 19 GAC, J Crl.A.No.238 of 2017 helpful to the present case. Furthermore, there is corroboration of evidence before the Court as to the evidence of P.Ws.1 and 4. It has to be borne in mind that the crucial evidence of parents of the deceased is lacking in this case in view of their death. Admittedly, the trial Court has acquitted A-2 and A-3 as there is no material on record against them. Furthermore, they were residing away from A-1 and the deceased since three months prior to the death of the deceased. The prosecution is successful in proving that the deceased died otherwise than normal circumstances within seven years of her marriage and soon before her death, she was subjected to harassment for demand of additional dowry. Therefore, it can be construed that there is no error or irregularity in the orders passed by the trial Court so as to interfere with the findings.
32. In view of the above discussion, this Criminal Appeal is liable to be dismissed and the judgment of the trial Court shall hold good.
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33. In the result, this Criminal Appeal is dismissed.
Pending miscellaneous applications, if any, shall stand closed.
________________________________ G.ANUPAMA CHAKRAVARTHY, J Date:26.04.2023 dv