B. Rajanna Raju, Visakhapatnam vs P.P., Hyd
2021 Latest Caselaw 3520 AP

        HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
                          AND
            HON'BLE MS JUSTICE J. UMA DEVI

                      Criminal Appeal No.863 of 2015


JUDGMENT: (Per Hon'ble Sri Justice U. Durga Prasad Rao)

      Aggrieved by the judgment dated 03.09.2015 in S.C.No.159 of

2010 passed by learned Sessions Judge, Mahila Court, Visakhapatnam

convicting the accused for the offence under Section 302 r/w 304-B of

IPC and sentencing him to suffer imprisonment for life and pay a fine of

Rs.10,000/-, the sole accused preferred the instant appeal.


2.    The prosecution case as per the Charge-sheet is that the deceased

Bajjangi Devi is the wife of accused and daughter of PWs 2 and 3. Her

marriage with accused was held on 01.05.2004. At the time of marriage

the accused was working as Senior Assistant in Electrical Department in

Palakonda, Srikakulam District where the couple lived for some time.

Thereafter the accused was transferred to Visakhapatnam. At first they

lived in Gopalapatnam and since two years prior to her death, they have

been living in a rented house i.e., in the first floor of PW-1 in

Kailasapuram, Visakhapatnam. Out of wedlock, deceased and accused

begot two sons and one daughter out of whom one son died. The parents

of deceased gave eight tulas of gold at the time of marriage. The accused

and his parents demanded Rs.1,50,000/- as dowry out of which the

parents of deceased could pay only Rs.50,000/- and the accused was

demanding for balance amount of Rs.1,00,000/-. The deceased used to

frequently inform her parents about the demand of the accused and they
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used to persuade the accused. In the month of February, 2010 the parents

of the deceased gave Ac.0.24 cents of land as gift in the name of their

daughter and later on 01.03.2010 they also gave cash of Rs.50,000/- to

the accused but still he was harassing her for the balance amount of

Rs.50,000/- and her parents told that they would arrange the amount

shortly. They came and stayed in the house of the accused and deceased

for some days and on the early morning of 05.03.2010 they went back to

their native place. After that the accused had a quarrel with the deceased.

Soon after the accused left for duty, the deceased, unable to bear his

harassment, committed suicide by hanging to the ceiling rod and died.

The accused came to the house for lunch and noticing that the door of the

house was bolted from inside, informed the same to PW-1 and other

neighbours who came and forcibly opened the door and went inside the

house and found deceased hanging. They brought down her body and

took her to Seven Hills Hospital where the deceased was declared dead.

PW-1 gave report to the police on 05.03.2010 at about 17 hours. Initially

FIR was registered under Section 174 of Cr.P.C. On knowing about her

death, PWs 2, 3 and others came to Visakhapatnam and PW2 gave report

to the police of Kancharapalem P.S alleging that the death was due to

harassment meted out by the accused. The Inspector of Police altered the

Section of law from 174 of Cr.P.C to 304-B IPC and submitted express

FIR to all concerned. The Doctor who conducted post mortem, reported

that the death was due to asphyxia due to hanging. The Police filed

charge sheet against the accused for the offence under section 304-B of

I.P.C.
                                      3


       (a) The trial court initially framed charge under Section 304-B IPC

against the accused and later framed additional charge under Section 302

IPC.


       (b) During trial PWs 1 to 16 were examined, Ex-P1 to P13 were

marked and MOs 1 to 5 were exhibited on behalf of prosecution. On

behalf of accused Ex-D1 was marked.


       (c) The defence of the accused is one of total denial of the

offences. In the cross-examination of PWs 2 and 3 (his parents in-law),

he suggested that due to the negligence of PW-3 in holding his little son,

he fell down and died and in that context there used to be quarrels

between the deceased and her mother (PW-3) and on the previous night

of the death of the deceased also there was such a quarrel and in such a

depressed mood, she committed suicide. This was the reason attributed

by the accused for the death of his wife. No defence evidence was

adduced by him.


       (d) The trial Judge, on appreciation of facts and evidences, came to

conclusion that the accused committed murder of his wife and

accordingly, convicted and sentenced him to life as stated supra. Hence,

the appeal.


3.     Heard the arguments of learned counsel for appellant/accused

Smt. C. Vasundhara Reddy and learned Public Prosecutor.
                                     4


4     Severely fulminating the conviction recorded by the trial Court

under Section 302 r/w 304-B IPC, learned counsel argued that the

offence of murder under Section 302 IPC and the offence of dowry death

under Section 304-B are two distinct offences and there are no common

ingredients between them and therefore, the trial Court's conviction of

the accused under Section 302 r/w 304-B IPC is palpably wrong and bad

at law.


      (a) Further, remonstrating trial Court's finding that the accused is

guilty under Section 302 IPC, learned counsel argued that the prosecution

case was only under Section 304-B IPC i.e., the deceased being unable to

bear the harassment and torture of the accused for dowry, committed

suicide by hanging in their residential house and evidence led by the

prosecution also was to prove the offence under Section 304-B only.

More particularly, the Post-mortem Doctor clearly opined that the death

of deceased was due to asphyxia due to hanging. No external injuries or

poisonous substance were found except a ligature mark on the neck of the

deceased. Above all, PW-1, in whose upper portion the deceased and

accused were tenants, has, categorically deposed that on the afternoon of

incident the accused came and informed that when he reached home for

lunch and pressed calling bell, his wife was not responding and requested

them to come and see and permit him to break open the door and he

permitted him and when all of them broke open the door and went inside

the rented portion of accused, they found the deceased hanging to the

ceiling rod by a piece of saree and they cut the hanging piece and brought

down the dead body of the deceased and later accused took her to Seven
                                     5


Hills Hospital where she was declared dead. Learned counsel argued that

the evidence of PW-1 clinches that the deceased committed suicide by

hanging. In further expatiation, learned counsel argued that the rented

flat of the deceased and accused had admittedly one door way and in that

view, it is highly improbable for the trial Court to hold that the accused

committed murder of the deceased and surreptitiously came out and went

to the portion of the house owner i.e., PW-1 and sought his permission to

break open the door. Learned counsel argued that even assuming the

accused committed murder of his wife and created a false story of her

hanging, still it would be impossible for him to bolt the doors from inside

and come out surreptitiously and go to PW-1 to seek his permission to

break open the door. She thus argued that the conclusion of the trial

Court that the accused is guilty of murder of his wife is factually and

logically impermissible.   The trial Court held him guilty due to his

alleged doubtful conduct i.e., on seeing the deceased hanged to ceiling,

the accused did not immediately break open the door to save her but

coolly went to the house of PW-1 and brought him and after obtaining his

permission, broke open the door.         Further, strangely the accused

expressed his view that his wife was acting and did not die. Only basing

on such an alleged unusual conduct, the trial Court convicted him without

seeking for any other strong circumstantial evidence proving the guilt of

the accused. Therefore, the conviction under Section 302 IPC is not

maintainable. She relied upon Dinesh Borthakur v. State of Assam1.




1
    (2008) 5 SCC 697
                                      6


      (b) Nextly, the Charge under Section 304-B IPC is concerned,

learned counsel argued that there are many discrepancies in the evidence

of PWs-2, 3, 4, 5, 8 and 12 on the aspect of dowry harassment allegedly

meted out by the accused to deceased. It is argued that there is no

reliable evidence that the accused and his parents demanded

Rs.1,50,000/- as dowry at the time of marriage and PWs-2 and 3 paid

Rs.1,00,000/- in tranches. She argued that since the parties belong to

Boya community of Schedules Tribes, there is no convention of

bridegroom demanding dowry from bride's party. The alleged gifting of

Ac.0.24 cents by PW-2 in favour of the deceased to persuade accused

also is not supported by any plausible evidence.          Thus, except the

interested testimony of PWs-2, 3, 4, 5 and 8 & 12, there is no

independent evidence regarding the dowry demand and harassment. PW-

12, who is allegedly the friend of the deceased before whom the deceased

allegedly used to disclose her woes, is not a reliable witness but only a set

up witness.    She does not know any intricate issues relating to the

accused and deceased.       Thus, at the out-set, except the interested

testimony of the relatives of the deceased, there is no independent and

reliable evidence to establish the dowry harassment said to be meted out

by the accused soon before her suspicious death. She further argued that

to bring the offence within the fold of 304-B IPC, it is not sufficient to

prove mere demand of dowry but it must also be established that coupled

with such demand, the accused and his relations have meted out the

deceased with cruelty or harassment. In this case the said ingredient is

sorely missing. Hence, the charge under Section 304-B IPC also has no
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legs to stand. She relied upon Monju Roy v. State of West Bengal2 and

Baijnath v. State of Madhya Pradesh3. Learned counsel further argued

that the little son of the deceased and accused died when he fell down due

to careless handling by PW3 - the mother of the deceased and in that

context there used to be frequent quarrels between mother and daughter

and even on the previous night of the incident also there was such a

quarrel between them.          In all probability, the deceased must have

committed suicide in a depressed mood for which the accused was least

responsible.        However, the trial Court without appreciating the facts

connecting to the death of deceased in a proper perspective, recorded the

conviction on assumptions and presumptions which are not born out by

the evidence. Learned counsel thus prayed to set aside the conviction and

sentence passed by the trial Court.


5.        In oppugnation, while supporting the judgment, learned Public

Prosecutor argued that the accused was rightly convicted for the offence

under Section 302 IPC. He explicated that the accused had committed

cold blooded murder and tried to extricate himself cleverly. However,

certain strong suspicious circumstances could establish that except the

accused none other was the author of the murder of the deceased.

Learned Public Prosecutor argued that the murder was committed

because since long, the accused has been demanding the deceased to

bring the balance dowry amount and also additional dowry and tortured

the deceased in that context. PWs-2, 3, 4, 5, 8 and 12 have clearly stated

that the parents of the deceased paid Rs.1,00,000/- to him and they also
2
    (2015) 13 SCC 693
3
    (2017) 1 SCC 101
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gifted 0.24 cents of land in favour of deceased to appease his dowry

insatiety.   Being not satisfied, accused committed murder of the

deceased. The death was occurred in the house where the accused and

deceased were inmates and therefore, he owes the responsibility to

explain how the gruesome incident was occurred and who was

responsible for it if not himself. He did not offer any explanation but on

the other hand there were too many strong circumstances against him.

       (a) Speaking on circumstances, learned Pubic Prosecutor argued

that strangely, on the afternoon of the incident the accused returned home

from office at 02:30 PM allegedly for lunch, however, he did not offer

any explanation as to whether he was regularly visiting home for lunch

on every day. In the absence of such answer, his returning home for

lunch, particularly on the date of incident would cast any amount of

doubt on his conduct.

       (b) Nextly, on seeing his wife hanging to ceiling, the accused

ought to have immediately broke open the door to rescue her with the

hope that still there was life in her. However, the conduct of the accused

is highly suspicious that he coolly went to the house of PW-1 and

brought him and others and sought for his permission and then only

broke open the door. Learned Public Prosecutor emphasized that instead

of break opening the door by impulsion, the accused took unusually long

time to call PW-1 and sought his permission as one would do only in

normal circumstances. His comment at that time that his wife was acting

and did not die is an another suspicious circumstance. Thus, the conduct
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of the accused at the crucial moment, coupled with other suspicious

circumstances would show that he was responsible for her death.

          (c) Learned Public Prosecutor further argued that when the vital

statistics relating to total height of the room up to ceiling, the length of

the saree and the length of the deceased are studied minutely, they would

depict that the suicidal hanging is impossible. He would submit that as

per Ex.P12 - scene of offence observation report, the height of the roof

from the floor is 9'2" and the total length of the saree used for hanging is

5'7". Then, as per Ex.P7 - inquest report, the total height of the dead

body is 4'9".         In the light of these dimensions, he argued, suicidal

hanging is impossible. He further argued that in case of suicidal hanging,

generally eyes and tongue will be protruded and hyoid bone will be

fractured, but as per post-mortem Doctor, hyoid bone was intact and eyes

and tongue were not protruding but the tongue was inside the mouth.

These observations also indicate that is a case of murder. He placed

reliance on Ganeshlal v. State of Maharashtra4.                  Learned Public

Prosecutor thus prayed to dismiss the appeal.


6.      The points arise for consideration in this appeal are:

          1.

Whether prosecution could establish the guilt of accused for the

charge under Section 302 IPC beyond all reasonable doubt and the

conviction passed by the trial Court in this regard is factually and legally

sustainable?

2. If point No.1 is held in negative, whether the accused is liable for

the charge under Section 304-B IPC?

(1992) 3 SCC 106 = MANU/SC/0506/1992

7. Point No.1

As can be seen, charge under Section 302 IPC against accused is

concerned, there are no direct eye witnesses and the case of prosecution

mainly pivots on circumstantial evidence. The golden rule for proving a

case based on circumstantial evidence has been laid down and reiterated

by Apex Court on a number of occasions viz., Hanumant v. The State

of Madhya Pradesh5 and Sharad Birdhchand Sarda v. State of

Maharashtra6. The Supreme Court laid down the following principles:

a) Circumstances from which the conclusion of guilt to be drawn should be fully established.

b) The facts so established should be consistent only with the hypothesis the guilt of the accused.

c) There must be chain of evidence so complete and not to leave any reasonable grounds for the conclusion consistent with the innocence of the accused.

Thus, the prosecution must prove the existence of all the suspicious

circumstances which should point out the guilt of accused but not his

innocence.

8. Be that it may, the suspicious circumstances projected by the

prosecution in this case are:

(i) The accused used to demand additional dowry and subjected

deceased to cruelty and harassment soon before her death.

AIR 1952 SC 343

AIR 1984 SC 1622

(ii) The accused and deceased lived together under one roof where

she died in suspicious circumstances. The accused did not show any

plausible cause for her death.

(iii) On the afternoon of incident, the accused allegedly came home

from office for lunch and thereafter found his wife hanging to ceiling.

His visit to house for lunch was unusual and suspicious since he has not

established that he was regularly visiting home for lunch every day.

(iv) On seeing the deceased hanging to ceiling rod, the accused did

not immediately break open the door to check whether she was still alive

so as to rescue her. On the other hand, he coolly went down to PW1 - his

house owner and brought him and others and took his permission and

then only broke open the door. This unusual delay castes a doubt that he

intended for her death.

(v) The comments of accused at the scene that his wife was acting

and not died create suspicion.

(vi) The measurements of the height of the wall upto ceiling, the

length of the saree used for hanging and the length of the dead body put

together, will not permit to conclude that it is a case of suicidal hanging.

(vii) The tongue and eyes of deceased did not protrude and hyoid

bone remained intact which is unusual in the case of death by hanging.

9. We gave our anxious consideration to the above suspicious

circumstances projected by the prosecution and accepted by the trial

Court. We must say that the above circumstances, neither independently

nor collectively could be able to draw the inference of guilt of accused

under Section 302 IPC confirmatively.

10. The first suspicious circumstances relates to the alleged demand of

additional dowry by the accused and subjecting the deceased to cruelty

and harassment. This can be taken as a motive for accused to kill the

deceased. We will deal with this circumstance in point No.2.

11. The second circumstance is concerned, it is not true to say that the

accused did not offer any cause for the death of his wife. In the cross-

examination of PW1 and PW2 and also in his 313 Cr.P.C examination,

the accused projected that because of careless handling of his little son by

PW3, he fell down and died and in that regard the deceased and PW3

used to quarrel with each other frequently and on the previous night of

the incident also, they quarreled with each other and on the next day, the

deceased in a depressed mood committed suicide by hanging. We will

discuss the truth or otherwise of explanation in Point No.2 infra.

12. The unusuality of accused visiting home for lunch on the

afternoon of incident is concerned, it must be said that if the prosecution

wants to treat this conduct of the accused as unusual, it must produce

unimpeachable evidence to the effect that never before the accused came

home for lunch. The prosecution has not taken pains to examine any of

the colleagues or other staff members in his office to speak that the

accused was accustomed to take lunch in the office but not at home. The

investigating officer has not concentrated his efforts in that regard.

Therefore, without there being a contra evidence, the prosecution cannot

treat his visit to home on that day as a suspicious circumstance.

13. The next suspicion is that the accused on seeing the deceased

hanging, did not immediately break open the door but casually went

down and brought PW1 and others and broke open the door by obtaining

permission. The prosecution as well as the trial Court were under

mistaken impression that the accused after reaching home for lunch, saw

the dead body of the deceased hanging to the ceiling through the window

and then only he went down stairs and called PW1 and others and broke

open the door with the permission of PW1. It must be said that none of

the prosecution witnesses including PW1 said that at first accused saw his

wife hanging to the ceiling through window and then went down and

called others. On the other hand, the version of the accused in 313

Cr.P.C examination is that on that afternoon he came home at 2:30 PM

for lunch and rang the calling bell but his wife did not respond and

therefore, on a doubt he went down to his owner and with the help of his

owner and neighbours he broke open the door and found his wife

committed suicide by hanging. Since there is no contra evidence on this

aspect, there is no reason to discard the version of accused. Hence, this

circumstance cannot be treated as a suspicious one.

14. The fifth circumstance is concerned, PW1 in his Chief

Examination stated that after they saw through the window the wife of

accused was hanging, the accused commented that his wife was acting

and did not die and requested them to break open the door. Taking this

part of evidence, the trial Court confirmed that the accused committed

murder of his wife. It is incomprehensible how the said uttering of the

accused can be treated as a suspicious circumstance against the accused.

At the first sight of the incident, it might be the impression of the accused

that his wife was acting and did not die. By uttering so, if he did not

allow anybody to enter his house to see the dead body to know whether

she is alive or dead, perhaps a suspicious finger could be pointed out

against him. However, the accused after expressing his doubt that his

wife was acting, did not stop there but requested PW1 and others to break

open the door and see her. Therefore, his ushering though slightly

indicates unusuality, but cannot be taken as a suspicion against him. It

must be noted that seeing the same incident, different people react in

different manner depending upon their psychology. In Dinesh

Borthakur's case (supra 1), the accused was convicted and sentenced to

undergo R.I. for life on the charge of murder of his wife and little

daughter by administering poison, basing on circumstantial evidence.

The trial Court and High Court found him guilty. On appeal, the Apex

Court observed that there was no positive evidence that the accused

administered poison and strangulated his wife and daughter and there was

no evidence that he purchased pesticide, nor his fingerprints were found

on the bottle or glass and therefore, no incriminating evidence to hold

him guilty. Further, there were no marks of violence on the bodies of the

deceased and besides, the scraping of nails taken from the two deceased

did not correspond to the scraping of the skin taken from the body of the

appellant. The Supreme Court held that it is not the case of prosecution

that the deceased was last seen in the company of the appellant and

nobody has seen him going inside his house or coming out at the time

near about the commission of crime. In this context, the Apex Court

observed that sniffer dog went near the appellant and stayed for some

time cannot be taken as a suspicious circumstance as canine cannot give

evidence in the witness box. The Apex Court found fault with the trail

Court suspecting the conduct of the accused on the ground that on seeing

the dead body of his wife and adopted daughter he had neither wept nor

cried nor shown any sign of shock or being upset. The Supreme Court

observed that no hard and fast rule having any universal application with

regard to the reaction of a person in a given circumstance can thus be laid

down. One person may lose equilibrium and balance of mind, but

another may remain a silent spectator till he is able to reconcile himself

and then react in his own way. Thus, merely because the appellant did

not cry or weep on seeing the dead bodies, cannot be made the basis for

inferring his guilt. The above judgment applies with all its fours in the

instant case. So, we hold that the conduct of the accused as projected by

the prosecution cannot be taken as suspicious one.

15. The sixth circumstance is concerned, as per Ex.P12-Scene of

offence observation report, the total height of the hall from roof to floor

is 9' 2''. The total length of the saree used for hanging is 5' 7''. The

length of cradle chain hanging from ceiling hook is 3' 10''. Then, as per

Ex.P7-Inquest Report, the height of deceased is 4' 9''. Perhaps taking

the length of saree, cradle chain and the height of deceased cumulatively,

the trial Court in para 41 of the judgment held that suicidal hanging can

be ruled out. Of course, the trial Court has not clearly explained as to

how, with the above dimensions, suicidal hanging could be ruled out. It

must be mentioned that there is no clear evidence as to whether the saree

was tied to ceiling hook or cradle chain. If saree was dropped from

ceiling hook, since it requires two nooses, the length of the saree will be

considerably reduced depending upon how the nooses were made. In

such an event, hanging is not impossible. If the saree was tied to cradle

chain, still depending on the manner in which saree was tied and nooses

were made, space can be made available for hanging. It is all dependent

on how the saree was tied and nooses were made. So, without proper

evidence, it is not appropriate for the trial Court to jump into conclusion.

16. The next suspicion is that hyoid bone was intact and tongue and

eyes did not protrude which is a common feature in hanging cases. In

Ex.P11-P.M. Certificate, PW14-Post Mortem Doctor mentioned that both

eyes were partly opened and congested; mouth is partly opened; tongue is

inside the mouth and hyoid bone is intact. Considering these and other

observations, he mentioned the cause of death as Asphyxia due to

hanging. It should be noted that during his chief examination, it was not

elicited by the prosecution that in case of hanging, eyes and tongue must

protrude and hyoid bone must fracture by referring to opinion expressed

by the renowned authors of medical jurisprudence texts. Without making

such efforts, it cannot be pleaded that it is not a case of hanging. It

should be noted that the doctor has clearly mentioned that there were no

antemortem injuries nor signs of struggle and poisoning. Hence, in our

considered view, there is no strong reason to a differ with the opinion of

the medical expert.

17. Then conversely, even all the above suspicious circumstances are

taken for granted and accepted, still, they do not form into a complete

chain to invariably establish the guilt of the accused for the reason that

the hall in which the dead body was found hanging was locked from

inside and admittedly PW1, accused and others broke open the door from

outside and gained entrance. Further, Ex.P12-Scene of offence

observation report and Ex.P13-Rough sketch of scene of offence would

show that the flat of accused was having only one doorway. It is not the

evidence of I.O. that the windows were in a broken condition to assume

that accused might skulked away through window after committing

murder and locking the door from inside. So, this fact clearly wards off

all other suspicious circumstances howsoever strong, according to

prosecution, they may be. Without considering this aspect in proper

perspective the trial Court in para 42 of its judgment simply held that the

accused having committed murder of deceased had surreptitiously came

out and coolly went to PW1 for his permission to break open the door.

Duty is caste on the prosecution and also on the trial Court to explain as

to how the accused could have murdered and created a false story of

suicidal hanging in his house and came out and still managed to see that

doors were locked from inside. It should be noted that in the sport of

Javelin throw, distance only matters, however, in Archery hitting the

target matters. Similarly, appreciation of circumstantial evidence does

not mean garnering of multiple suspicious circumstances, but it is a

careful observation as to which circumstance strikingly proves the guilt

of accused.

Thus at the outset, we hold that the trial Court erred in convicting

the accused for the offence under Section 302 IPC. The decision in

Ganeshlal's (supra 4) case relied upon by the Public Prosecutor can be

distinguished on facts. That was a case of bride burning with kerosene.

The accused are the husband and his relations. The death was occurred

in the 3rd floor of the house of the appellant at 10:30 AM. No outsider

had access into the house that too except through the grill gate in the

ground floor. In the 1st floor, parents and sister of the appellant/accused

live. In the 2nd floor the appellant and deceased were residing and the 3rd

floor consists of one room and open verandah. The occurrence took

place in the room in the 3rd floor. Initially, A6 - maternal uncle of

appellant/accused lodged FIR stating as if the deceased died due to short

circuit while she was drying wet cloths on the top floor. However,

Electrical Engineer ruled out the electrical short circuit and investigation

revealed the death was due to suffocation by inhaling Carbon monoxide.

Most importantly, the door of the room where the deceased died was not

bolted from inside. It was observed that unless the doors from outside

were closed and made the victim alone remain in the room, it would be

difficult to smoke confining to that room. Considering the above

evidences, the trial court acquitted all the accused but on appeal the High

Court of Bombay, Nagpur Bench convicted the appellant/accused/

husband alone. The Apex Court confirmed the said conviction and

dismissed the appeal. As stated, the facts are different here. Most

significantly, in this case door was locked from inside and entrance was

gained only by break open the lock from outside.

18. Point No.2 : The ingredients for the offence 304-B IPC are:

(i) Death of the woman within 7 years of her marriage

(ii) Such death was caused by burns, bodily injury or otherwise than under normal circumstances.

(iii) Soon before her death she was subjected to cruelty or harassment by her husband or any relatives of her husband for or in connection with any demand for dowry, in which case such death shall be called 'dowry death'.

19. In the instant case, ingredients (i) and (ii) are admittedly

established. In Monju Roy's case (supra 2) and also in Baijanath's case

(supra 3), the Apex Court observed that the offence under Section 304-B

IPC is not mere demand of dowry but "cruelty or harassment" for or in

connection with demand of dowry and the said crucial ingredient must be

proved. Hence, it has now to be seen whether third ingredient is proved

or not.

20. Prosecution examined PWs 2, 3, 4, 5, 8, 16 to establish the dowry

harassment and cruelty. PW2 and 3 are parents, PWs 4 & 8 who are

brothers are the maternal uncles of the deceased, and PW5 is the brother

of deceased. PW16 is the friend of deceased.

21. PW2 deposed that the marriage of the deceased and accused was

held in 2004 and his parents demanded Rs.1,50,000/- as dowry, but he

could pay only Rs.50,000/- on 01.03.2010. Besides, at the time of

marriage he presented 8 tulas of gold and others paraphernalia. Initially

the accused worked as Senior Assistant in Electrical Department in

Palakonda and two years thereafter he was transferred to Visakhapatnam.

Ever since the accused was harassing her for the balance dowry which

the deceased was conveying to her parents by cell phone. She used to tell

that accused was beating her indiscriminately. She also informed him

that the accused was demanding Rs.50,000/- for purchasing a flat or a

house in and around Visakhapatnam. This witness went to accused

saying that at the time of purchasing flat he would give the money. It is

his further evidence that while the accused and deceased were living at

Gopalapatnam, once the deceased along with her son went to her parents

and informed that accused meted out cruelty and beaten her for the

balance amount of Rs.50,000/- and unable to bear the same, she came

back to her parents. One month thereafter the accused went and took

back his wife and children on the promise of PW1 that he would pay

Rs.50,000/-. Subsequently the couple shifted to a rented house at.

Kailasapuram and sometime thereafter his daughter informed that the

accused developed illegal intimacy with another woman at Kailasapuram.

To appease the accused, PW1 went in the month of February 2010 and

handed over relevant documents to the elder brother of the accused in

order to execute a Gift deed for 0.24 cents in favour of his daughter.

Subsequently in the month of March 2010, himself, PW3 and PW4 went

to the house of accused and paid Rs.50,000/-. They also searched for a

flat or a house site at Shanti Nagar and ultimately decided to purchase the

house for Rs.6.00 lakhs. Subsequently his daughter died in the rented

house of accused.

(a) The other witnesses also deposed more or less in similar

manner. In addition, PW4 deposed that accused and deceased lived for

two years in a rented house at Gopalapatnam, which is nearer to his

rented house. He stated that at 9.00 A.M. on a Friday in the year 2010,

the deceased along with her son came and informed him that she was

subjected to cruelty and harassment both physically and mentally by the

accused and she was beaten by him in connecting with the agreed dowry

amount. In the meanwhile, the accused also came there and in the

presence of himself and his wife Janaki, the accused caught hold the neck

of the deceased and beat her. He proclaimed that for his status he would

have got a girl with 10 lakhs dowry. PW4 further stated that often the

deceased used to come to their home and weep before him for the

harassment meted out by her husband. He further deposed that on

01.03.2010 PW2 paid Rs.50,000/- to the accused at his rented house and

this witness counted the amount and handed over the same to him and

informed that the remaining Rs.50,000/- will be paid later. On the

request of accused, he has seen a flat and accused paid Rs.50,000/- as

advance.

22. We have carefully scrutinized the evidence of above witnesses.

Except denying their evidence nothing specific was elicited by the

accused to impeach their credibility. Since PW4 is the maternal uncle

and residing nearer to her house, there is nothing strange in deceased

going to him and narrating her woes. In his presence only, once accused

beat the deceased for dowry. We find the evidence of above witnesses,

particularly PW1 & 4 to be intrinsic and there is a ring of truth around

their evidence. The torture and cruelty meted out by accused are writ

large. Even though five days prior to her death her parents paid

Rs.50,000/-, still accused was not satisfied and he quarreled with her.

Therefore, the evidence on record clearly establishes the guilt and

harassment meted out by the accused to deceased to quench his thirst for

dowry. There are minor discrepancies in the evidence which in our view

will not shatter the basic fabric of the prosecution case. It is argued by

the accused that the parties belong to Boya/Valmiki community of

Scheduled Tribes and there is no prevalence of accepting dowry by the

bridegroom from bride's party and therefore the entire case of

prosecution which revolves around the alleged demand of dowry

crumbles down. We cannot accept this contention in view of

overwhelming evidence that the accused indeed demanded balance

dowry from the parents of deceased and tortured her even in the presence

of her uncle - PW4. It must be made clear that money is sweeter and

dearer than conventions and morals.

23. The accused sought to offer explanation for the suicidal death of

his wife stating that his little son fell down and died due to careless

handling by his mother-in-law - PW3 and in that context there used to be

quarrels between his wife and PW3 and on the previous night of the

incident also mother and daughter quarreled with each other and in that

depressed mood, perhaps his wife might have committed suicide on the

next day and death was not due to harassment for dowry. This

explanation is far from truth as he has not led any evidence to establish

that his son died due to careless handling by his mother-in-law. On the

other hand the prosecution case is that the little son of the deceased died

due to jaundice. Hence, the said explanation is preposterous.

24. So on a conspectus of facts, evidence and law, this Criminal

Appeal is partly allowed setting aside the conviction and sentence

recorded by the trial Court against the appellant/accused for the offence

under Section 302 IPC. However, the appellant/accused is found guilty

of the offence under Section 304-B IPC and he is sentenced to suffer

rigorous imprisonment for eight (8) years. The remand period in jail

shall be given set off.

__________________________ U. DURGA PRASAD RAO, J

______________ J. UMADEVI, J 15th September, 2021 krk/mva

HON'BLE SRI JUSTICE U. DURGA PRASAD RAO

AND

HON'BLE MS. JUSTICE J. UMADEVI

Crl. A. No.863 of 2015

15th September, 2021 krk/mva