Andhra Pradesh High Court - Amravati
Kondru Israel vs The State Of A.P. on 1 February, 2024
HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
****
CRIMINAL APPEAL No.1509 OF 2010
Between:
Kondru Israel, S/o Maridayya, aged about 26 years,
Business, G. Donthamuru Village, Rangampeta Mandal,
East Godavari District.
... Appellant/Accused.
Versus
The State of Andhra Pradesh, rep. by Public Prosecutor,
High Court of A.P. and another.
... Respondent.
DATE OF JUDGMENT PRONOUNCED : 01.02.2024
SUBMITTED FOR APPROVAL:
HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
1. Whether Reporters of Local Newspapers
may be allowed to see the judgment? Yes/No
2. Whether the copy of judgment may be
marked to Law Reporters/Journals? Yes/No
3. Whether His Lordship wish to see the
Fair copy of the judgment? Yes/No
______________________
A.V.RAVINDRA BABU, J
2
* HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
+ CRIMINAL APPEAL No.1509 OF 2010
% 01.02.2024
# Between:
Kondru Israel, S/o Maridayya, aged about 26 years,
Business, G. Donthamuru Village, Rangampeta Mandal,
East Godavari District.
... Appellant/Accused.
Versus
The State of Andhra Pradesh, rep. by Public Prosecutor,
High Court of A.P. and another.
... Respondent.
! Counsel for the Appellant : Sri T.S.N. Murthy.
^ Counsel for the Respondent : Public Prosecutor
< Gist:
> Head Note:
? Cases referred:
(2004) 4 SCC 470
This Court made the following:
3
THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU
CRIMINAL APPEAL No.1509 OF 2010
JUDGMENT:
-
Challenge in this Criminal Appeal is by the unsuccessful
A.1 to the judgment, dated 09.11.2010 in Sessions Case No.340
of 2009, on the file of III Additional District & Sessions Judge,
Kakinada ("Additional Sessions Judge" for short), where under
the learned Additional Sessions Judge found the present
appellant/A.1 guilty of the charge under Section 304-B of the
Indian Penal Code ("IPC" for short), convicted him under Section
235(2) of the Code of Criminal Procedure ("Cr.P.C." for short)
and after questioning him about the quantum of sentence,
sentenced him to suffer rigorous imprisonment for 10 (ten)
years. By the said judgment, the learned Additional Sessions
Judge found A.2 and A.3 not guilty of the charge under Section
304-B of IPC and further found A.4 and A.5 not guilty of the
charge under Section 304-B r/w 34 of IPC and acquitted them
under Section 235(1) of Cr.P.C. As against the acquittal of A.2
to A.5 as above, there is no appeal filed by the State.
2) The parties to this Criminal Appeal will hereinafter
be referred to as described before the learned Additional
Sessions Judge for the sake of convenience.
3) The Sessions Case No.340 of 2009 arose out of a
committal order in P.R.C.No.21 of 2009, on the file of Additional
Judicial First Class Magistrate, Peddapuram, relating to Crime
No.61 of 2009 of Rangampeta Police Station.
4) The Sub-Divisional Police Officer, Peddapuram, filed
a charge sheet in Crime No.61 of 2009 of Rangampeta Police
Station alleging the offence under Section 304-B r/w 34 of IPC.
5) The case of the prosecution, in brief, according to
the charge sheet filed by the Sub-Divisional Police Officer,
Peddapuram, is as follows:
(i) One Kondru Sundara Mani (hereinafter will be referred
to as "deceased"), aged 20 years, was no other than the wife of
A.1. A.1 is son and A.4 and A.5 are the daughters of A.2 and
A.3. The deceased is native of Kandrakota village of
Peddapuram Mandal and she was only daughter of the de facto
complainant by name Chinthada Laxmi (L.W.1). The father of
deceased died about two years ago.
(ii) L.W.1 performed the marriage of deceased with A.1 on
14.06.2009 at the house of Accused at G. Donthamuru Village
as per Hindu rites and caste custom in the presence of relatives
and elders. At the time of marriage, she gave Rs.25,000/-
towards dowry to A.1 out of agreed dowry of Rs.35,000/-,
Rs.3,000/- towards adapadusu katnam to A.4 and A.5 and also
gifted gold ring and gold chain to A.1. She presented a pair of
gold ear studs, gold Sathamanam and a pair of silver anklets to
the deceased. She sent the deceased to the house of accused to
lead marital life. The deceased is blessed with a daughter by
name Sirisha, now aged 2 years. All the accused started
harassing the deceased by beating her for want of unpaid dowry
of Rs.10,000/- and sent her to the house of L.W.1 thrice to bring
the balance unpaid dowry of Rs.10,000/-. L.W.1 used to take
the deceased to the house of accused by pacifying the accused
and by assuring that she would give the balance of dowry within
a few days. She left the deceased at the in-laws house. In April,
2009 A.3 took the deceased and her daughter to house of L.W.1
and left her by saying that she will be taken to her in-laws
house whenever the unpaid dowry of Rs.10,000/- is paid to
them. On 23.06.2009, L.W.3-Arasada Appala Konda and L.W.4-
Kosuri Laxmi, who are the relatives of the deceased, took her to
in-laws house as per the request of L.W.1 and informed to the
accused that the due amount of Rs.10,000/- will be paid before
10.07.2009. On 01.07.2009 night A.1 and A.2 started
harassment and beat the deceased on the plea that she did not
prepare the fish curry properly which was witnessed by
neighbourers. Harassment was continued in spite of the request
made by L.W.1, L.W.3 and L.W.4. Accordingly, on 02.07.2009 at
1-00 p.m., the deceased committed suicide by hanging herself
to a beam in the room of her in-laws for unbearable harassment
made by the accused.
(iii) Basing on the report of L.W.1, L.W.22-S. Bhaskara
Rao, Asst. Sub-Inspector, Rangampeta Police Station, registered
the report as a case in Crime No.61 of 2009 under Section
304-B of IPC at 11-00 p.m., on 02.07.2009 and L.W.23-M.V.
Ramana Rao, Sub-Divisional Police Officer, Peddapuram, took up
investigation. L.W.21-P. Rakada Mani, Tahsildar, Rangampeta
Mandal, held inquest over the dead body of deceased at the
scene of offence in the presence of inquest panchayathdars and
also other witnesses. During investigation, L.W.23 inspected the
scene of offence in the presence of mediators and got the scene
photographed by L.W.14-Gubbala Srinivasa Rao and seized
nylon rope under the cover of observation report. He prepared
rough sketch. He arrested A.1, A.2, A.4 and A.5 on 03.07.2009
and on 09.07.2009 he arrested A.3 and sent them to judicial
custody. L.W.20-Dr.M. Ashok Kumar, Medical Officer, who
conducted autopsy over the dead body of the deceased, opined
that the deceased would appear to have died of with asphyxia
due to constricted force of ligature around the neck of larynx
with trachea and it may be due to hanging. Hence, the charge
sheet.
6) The learned Additional Judicial Magistrate of First
Class, Peddapuram, took cognizance of the case and numbered
it as PRC and after complying the formalities under Section 207
of Cr.P.C., committed the case to the Court of Sessions and
thereupon it was numbered as Sessions Case and made over to
the learned Additional Sessions Judge, for disposal, in
accordance with law.
7) On appearance of the accused before the learned
Additional Sessions Judge, charges under Section 304-B of IPC
against A.1 to A.3, Section 304-B r/w 34 of IPC against A.4 and
A.5, were framed against the accused and explained to them in
Telugu, for which they pleaded not guilty and claimed to be
tried.
8) The prosecution during the course of trial, in order
to establish the guilt against the accused, examined P.W.1 to
P.W.13 and got marked Ex.P.1 to Ex.P.14 and M.O.1 and M.O.2.
After closure of the evidence of prosecution, accused were
examined under Section 313 of Cr.P.C. with reference to the
incriminating circumstances appearing in the evidence let in by
the prosecuiton, for which they denied the same and stated that
they are implicated in a false case and that they have no
defence witnesses.
9) The learned Additional Sessions Judge, on hearing
both sides and on considering the oral as well as documentary
evidence, found A.1 guilty of the charge under Section 304-B of
IPC, convicted and sentenced him as above. The learned
Additional Sessions Judge found A.2 to A.5 not guilty of the
charges framed. Felt aggrieved of the aforesaid conviction and
sentence, the unsuccessful A.1 filed the present appeal.
10) Now, in deciding this Criminal Appeal, the points
that arise for consideration are as follows:
(1) Whether the prosecution proved the death of the
deceased viz., Kondru Sundara Mani was within a period of
seven years from the date of marriage otherwise than in
normal circumstances and as to whether soon before her
death she was subjected to cruelty or harassment by A.1
in connection with any demand for dowry?
(2) Whether the prosecution proved the charge under
Section 304-B of IPC against A.1 beyond reasonable
doubt?
3) Whether the judgment, dated 09.11.2010 of the
learned Additional Sessions Judge is sustainable under law
and facts?
Point Nos.1 to 3:-
11) P.W.1 was mother of the deceased. P.W.2 and P.W.3
were the mediators/close relatives who were said to have took
the deceased to the house of A.1 and dropped her by assuring
to pay the remaining balance of dowry within a specified time.
P.W.4, P.W.5, P.W.6 and P.W.7 were the neighbourers to the
house of accused. P.W.8 was the Photographer, who took the
photographs of the dead body at the instance of the police.
P.W.9 was a mahazar witness for the observation of the scene of
offence as well as conducting inquest. P.W.10 was medical
officer, who conducted autopsy. P.W.11 was the Executive
Magistrate, who conducted inquest. P.W.12 was the Asst. Sub-
Inspector, who registered the FIR basing on the report of P.W.1.
P.W.13 was the concerned Sub-Divisional Police Officer, who
was investigating officer.
12) Section 304-B of I.P.C., runs as follows:
[304B. Dowry death. - (1) Where the death of a woman
is caused by any burns or bodily injury or occurs otherwise
than under normal circumstances within seven years of her
marriage and it is shown that soon before her death she
was subjected to cruelty or harassment by her husband or
any relative of her husband for, or in connection with, any
demand for dowry, such death shall be called "dowry
death", and such husband or relative shall be deemed to
have caused her death.
Explanation: For the purposes of this sub-section, "dowry"
shall have the same meaning as in section 2 of the Dowry
Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with
imprisonment for a term which shall not be less than seven
years but which may extend to imprisonment for life.]
13) Further Section 113-B of the Indian Evidence Act,
1872 contemplates a presumption with regard to the dowry
death and it runs as follows:
Section 113-B in The Indian Evidence Act, 1872
"113-B: 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 woman has been subjected by
such person to cruelty or harassment for, or in
connection with, any demand for dowry, the Court
shall presume that such person had caused the dowry
death.
Explanation - For the purposes of this section 'dowry
death' shall have the same meaning as in Section
304B of the Indian Penal Code (45 of 1860)."
14) Therefore, looking into the facts and circumstances,
the prosecution is bound to prove the following to succeed in the
charge:
(1) That the death of the deceased was otherwise than in
normal circumstances;
(2) that the death happened within a period of seven
years from the date of marriage; and
(3) that soon before her death, she was subjected to
cruelty or harassment by A.1 in connection with any
demand of dowry.
15) Firstly, this Court would like to deal with as to
whether the prosecution proved that the death of the deceased
was occurred within a period of seven years from the date of
marriage otherwise than in normal circumstances.
16) The case of the prosecution is that P.W.1 agreed to
provide dowry of Rs.35,000/- to A.1 and she paid Rs.25,000/- at
the time of marriage apart from other things and there was
balance amount of Rs.10,000/- to be paid by P.W.1 to A.1 and
in connection with the balance amount, there were several
demands from the accused, as such, the deceased was
subjected to harassment physically as well as mentally. The
further case of the prosecution is that P.W.1 employed P.W.2
and P.W.3 who were her relatives when the deceased was
dropped at her house and she requested them to take the
deceased to the house of A.1 and to drop her with an assurance
to pay the balance amount within a specified time.
17) In that context, the evidence of P.W.1 is that after
P.W.2 and P.W.3 dropped the deceased at the house of accused
and one week thereafter A.1 contacted her by phone and
informed her that her daughter died by hanging. She received
the phone call at 2-00 p.m. and after gathering their people,
they went to the house of accused by 5-00 p.m., and found the
dead body of the deceased Sundara Mani lying on the floor
inside the house of the accused. They waited up to 9-00 p.m.,
and after their people gathered there, they decided to give a
report since they feel that the death of deceased is not natural.
Then, they went to Rangampeta Police Station at 9-00 p.m., and
presented a report which is Ex.P.1.
18) Coming to the evidence of P.W.2, she deposed that
after they dropped the deceased at the house of A.1 and on the
ninth day she received information at about 2-00 p.m. that the
deceased died. Later, they all went to the house of accused by
4-00 p.m. and found the dead body of deceased Sundara Mani
lying on the floor over a mat.
19) According to P.W.3, on the ninth day after they
dropped the deceased at the house of accused, at 2-00 p.m.,
P.W.1 came to their house and informed her about the death of
deceased Sundara Mani. They all went to the house of accused
by 4-30 p.m. and found the dead body of Sundara Mani lying on
the floor in the house of accused.
20) P.W.4, a neighbourer to the house of accused,
testified that one night prior to the date of death of Sundara
Mani, there was a quarrel between her and A.1, but she does
not know the reason. A.1 beat Sundara Mani at that time. On
the next day morning, Sundara Mani did household works and
later at about 12-30 noon, she went outside and at about 1-00
pm., she returned to the house and noticing the gathering of
people. She learnt that the deceased Sundara Mani died by
hanging herself.
21) P.W.5, another neighbour testified that they found
the dead body of Sundara Mani lying on the floor of the house of
accused and she learnt that Sundara Mani might have died by
hanging.
22) Similar is the evidence of P.W.6, another neighbour,
that previous night prior to the death of Sundara Mani, A.1 beat
Sundara Mani and on the next day, he came to know through
A.2 that A.1 beat Sundara Mani.
23) P.W.7, another neighbour, testified that after taking
lunch, he was in his house and A.1 came by running to his
house and informed that his wife hanged herself. He rushed to
the house of A.1. They found the doors of one of the rooms
were closed and by using a crow-bar they lifted the doors and
got opened the room. He found the dead body of A.1‟s wife
hanging with the knees touching the floor.
24) P.W.8, the Photographer, testified that he took
seven photographs of the dead body lying on the ground in the
house of A.1. He also took one photograph showing the rope
that is hanging to the roof. One photograph was taken from
outside the house. Ex.P.2 to Ex.P.8 are the said photographs
and Ex.P.9 is the corresponding CD.
25) The evidence of P.W.9 reveals that he was physically
present at the time of observation of the scene of offence by the
police and after at the time of conducting inquest by the Mandal
Revenue Officer.
26) P.W.11, the Mandal Revenue Officer, testified the
fact that he conducted inquest and panchayatdars opined that
the deceased committed suicide by hanging.
27) As seen from the evidence of P.W.10, the medical
officer, who conducted autopsy over dead body, he found a
ligature mark which extends from center of the neck towards
right side, running obliquely upwards over the back of the neck.
He is of the opinion that the death was due to asphyxia due to
ante mortem hanging. He issued postmortem report which is
Ex.P.12.
28) It is to be noted that during the entire cross
examination of the aforesaid witnesses, accused did not venture
to dispute the cause of death. Even according to the defence set
forth by the accused before P.W.1 and other witnesses, the
deceased committed suicide by hanging. The reason set forth by
the accused is that unable to bear the chronic stomach pain
which she was encountering, she committed suicide. The reason
set forth by the accused that the deceased committed suicide on
account of chronic ill-health is a matter to be considered
hereinafter.
29) Therefore, the cause of death of the deceased was
by hanging. Dead body was physically found in the house of A.1
while it was hanging to a beam. The medical evidence reveals
the cause of death was due to hanging. There was no dispute
that the factum of commit of suicide by the deceased. Hence,
the death of deceased was otherwise than in normal
circumstances.
30) Coming to the evidence of P.W.1, the mother of
deceased, she performed the marriage of her daughter with A.1
in the year 2006. According to P.W.2, P.W.1‟s daughter Sundara
Mani was given in marriage to A.2 about two years prior to the
death of the deceased. According to P.W.3, the daughter of
P.W.1 by name Sundara Mani, was given in marriage to A.1. In
the entire trial, accused did not dispute the fact that the
marriage of him with deceased was performed three years prior
to the death. Thus, the prosecution further satisfied another
essential ingredient that the death of deceased was within a
period of seven years from the date of marriage. Therefore, the
prosecution categorically established that the deceased died
within a period of seven years of the marriage otherwise than in
normal circumstances in the house of A.1.
31) Now, this Court has to look as to whether the
evidence on record establishes another ingredient that soon
before death A.1 subjected the deceased to cruelty and
harassment in connection with a demand for dowry.
32) Sri T.S.N. Murthy, learned counsel appearing for the
appellant, would strenuously contend that the learned Additional
Sessions Judge did not believe the case of the prosecution with
regard to the charge under Section 304-B of IPC against A.2 and
A.3 and further the charge under Section 304-B r/w 34 of IPC
against A.4 and A.5 and rightly extended an order of acquittal.
With the same set of evidence, the learned Additional Sessions
Judge believed the case of the prosecution insofar as the
present appellant is concerned. P.W.1 to P.W.3 are quite
interested witnesses. P.W.1 being the mother of deceased and
P.W.2 and P.W.3 being co-sister and sister-in-law of P.W.1 had
the reason to support the case of the prosecution falsely. There
was no dispute about the cause of death. But, according to the
defence, the deceased was suffering with chronic stomach pain
and unable to bear the stomach pain, she committed suicide.
According to the evidence of the prosecution witnesses, the
alleged petty quarrel between A.1 and the deceased during
previous night was only regarding preparation of fish curry. The
mother of A.1 told to neighbourers according to their evidence
that A.1 beat the deceased as she did not prepare the fish curry
properly. Even otherwise, the aforesaid allegation was also false.
Though the de facto complainant claimed to have reached to the
house of A.1 having come to know about the death of deceased,
she did not think over to lodge any report to the police. Ex.P.1
report was lodged belatedly with delay which is fatal to the case
of the prosecution. According to the defence, there was a
demand from P.W.1 to A.1 to pay abnormal amounts and as she
was not able to comply with the demand, false case was filed
against him. The evidence of the prosecution witnesses suffers
with omissions. According to the evidence of P.W.3, the alleged
harassment was only after the deceased gave birth to a female
child. According to the case of the prosecution from the very
beginning accused were subjecting the deceased to cruelty for
non-payment of dowry. In fact, no dowry was given to A.1 at
the time of marriage and marriage was performed in the house
of accused. The evidence of P.W.4 reveals that she was
subjected to examination by the police thrice and it was nothing
to improbable. P.W.5 was the person who drafted the report
under Ex.P.1. Thus, Ex.P.1 was a manufactured report after the
due deliberations and concoctions. L.W.16-Akumarthi Abbulu is
one of the mahazar witnesses for the observation report and
inquest report, was not examined by the prosecution. Learned
counsel for the appellant would further submit that only kith and
kin of the deceased were examined to speak of the alleged
harassment and neighbouring witnesses were not examined to
speak of the alleged harassment and the deceased committed
suicide unable to bear the stomach pain and that the learned
Additional Sessions Judge while disbelieving the case of the
prosecution against A.2 to A.5, ought to have disbelieved the
case of the prosecution even against A.1. He would further
submit that the evidence on record is not satisfying the essential
ingredients of Section 304-B of IPC, as such, the criminal appeal
is liable to be allowed.
33) Sri N. Sravan Kumar, learned counsel, representing
the learned Public Prosecutor, would contend that throughout
trial evidence adduced by the prosecution is quietly consistent.
There was a balance amount of Rs.10,000/- to be paid by P.W.1
to A.1 towards dowry as agreed and as she was unable to meet
the same, the deceased was subjected to torture. P.W.2 and
P.W.3 corroborated the evidence of P.W.1. The neighbouring
witnesses speak of the fact that during previous night, deceased
was subjected to physical harassment by A.1. It is A.2 who
canvassed theory between neighbourers that quarrel was petty
one for non-preparation of fish curry properly. According to the
findings of the learned Additional Sessions Judge, such theory
was propagated falsely suppressing a demand for dowry. Place
of death was in the house of A.1. The learned Additional
Sessions Judge on thorough appreciation of the evidence on
record, rightly found the present appellant guilty. Accused
miserably failed to probabalize his defence about the so-called
ill-health of the deceased and the learned Additional Sessions
Judge made appropriate findings in this regard. He would submit
that the prosecution has the benefit of presumption under
Section 113-B of the Indian Evidence Act and prosecution
established all the essential ingredients of Section 304-B of IPC
coupled with the statutory presumption under Section 113-B of
the Indian Evidence Act, as such, the criminal appeal is liable to
be dismissed.
34) Before going to appreciate the evidence on record, it
is appropriate to refer the substance of Ex.P.1 by P.W.1. Ex.P.1
in substance runs that the de facto complainant performed the
marriage of Sundara Mani, her daughter, three years ago with
A.1 and she agreed to provide dowry of Rs.35,000/- and at the
time of marriage she given Rs.25,000/- and there remained due
of Rs.10,000/- towards balance dowry and two months prior to
the incident, A.3 brought her daughter and left at her house by
saying that after paying Rs.10,000/- towards balance dowry, he
can send her daughter for marital life. On 23.06.009 her sister-
in-law Kosuru Lakshmi and Co-sister Arasada Appala Konda took
her daughter to in-laws house by assuring to pay the amount of
balance dowry before 10.07.2009 and they convinced A.1 and
others. It alleges that A.1 and others used to torture her
daughter on account of non-payment of dowry. On 02.07.2009
at 2-00 p.m., A.1 telephoned to her stating that the deceased
committed suicide at 1-00 p.m. Then she along with relatives
rushed and was informed that the deceased committed suicide
by hanging and she found the dead body and she entertained a
suspicion that she might have been killed on account of non-
payment of dowry. This is the substance of the allegations in
Ex.P.1.
35) During course of trial, P.W.1, the de facto
complainant, spoke of the marriage of A.1 with the deceased
and that she agreed to pay a sum of Rs.35,000/- as dowry and
out of it she paid Rs.25,000/- and balance was not paid for want
of money. They also paid Rs.3,000/- towards adapadusu
lanchanam, silver anklets weighing about 10 Tulas and also
presented a gold ring weighing half sovereign and gold chain
weighing half sovereign to A.1. They also presented ear studs
weighing half sovereign and gold Mangalasutram weighing half
sovereign to their daughter besides silver anklets. She spoke of
the marital life of the deceased with A.1 and that they were
blessed with a female child. Her daughter in two occasions
revealed to her that at the instance of her mother-in-law, A.1
used to abuse her and beat her for balance dowry. According to
P.W.1, further in the month of May, 2009, A.1 brought the
deceased and left at her house stating that if they want peaceful
family life of the deceased, they should pay balance dowry of
Rs.10,000/-. The deceased was in her house for two months in
that occasion. Thereafter, A.2 and A.3 came to the house and
took away the daughter of deceased, Sirisha. Two or three days
thereafter, her sister-in-law i.e., sister of her husband by name
Kosuri Lakshmi and co-sister by name Asarala Appalakonda took
her deceased daughter to the house of A.1 and dropped her
there and on their return they told her that accused are
demanding payment of balance dowry of Rs.10,000/- and they
convinced them to look after the deceased properly and they will
see that the balance dowry amount is arranged in short time.
They also requested her to arrange the balance amount within
ten days. They also told her that A.1 and A.2 asked her to write
bond to that effect that the accused will not be responsible if
anything happens to the deceased, for which they refused to do
so. One week thereafter A.1 contacted her in phone and
informed her that her daughter died by hanging. She received
phone at 2-00 p.m. and after gathering their people, they went
to the house of accused at 5-00 p.m., and found the dead body
of the deceased Sundara Mani lying on the floor. They waited up
to 9-00 p.m. and after all their people came there, they decided
to give a report. Then they went to the police station and lodged
Ex.P.1 report.
36) P.W.2, the co-sister and P.W.3, sister-in-law of
P.W.1, supported her evidence. Their evidence runs that the
disputes were due to non-payment of balance of Rs.10,000/- by
P.W.1 to the accused and that when A.3 brought the deceased
and her daughter and left them at the house of P.W.1 stating
that P.W.1 can drop the deceased and her daughter after giving
balance dowry. At request of P.W.1, they took the deceased to
her in-laws house and then A.1 and A.2 asked them whether
they brought the balance dowry of Rs.10,000/- for which they
replied that they did not bring that amount and that they asked
them to take back Sundara Mani. However, they asked A.1 to
give some time for payment of that amount and accordingly
they assured to pay the amount within 10 days. Though A.1
asked them to execute a bond to the effect that the deceased
shall not die by herself, but they refused to do so. Later, on the
ninth day thereafter, they received information about the death
of deceased.
37) It is the contention of the learned counsel for the
appellant that there are omissions in the evidence of P.W.1 to
P.W.3. Now, I would like to deal with the same.
38) As seen from the cross examination part of P.W.1, in
Ex.P.1, she did not state that they presented cash, gold and
silver ornaments to the accused at the time of marriage. It is to
be noted that the above said omission is relating to the items
other than cash of Rs.25,000/-. Though Ex.P.1 did not whisper
about the presentation of so-called adapadusu lanchanam, silver
and gold ornaments, etc., but the substratum of the case of the
prosecution as projected in Ex.P.1 was adhered by P.W.1. It is
not a case where the evidence of P.W.1 is suffering with any
material omissions or contradictions. The only omission that was
suggested to P.W.1 is that she did not state in Ex.P.1 about
other cash, gold and silver ornaments and in my considered
view, the above improvement is not at all material.
39) Turning to the evidence of P.W.2, she admitted in
cross examination that she did not state before police that the
accused asked them for execution of a bond stating that the
deceased may die. Except this omission, no other omission was
suggested to P.W.2. No omissions were suggested to P.W.3
during cross examination. However, the fact remained is that
there is no whisper in Ex.P.1 that A.2 and A.4 came to the house
of P.W.1 and took away Sirisha, the daughter of deceased. It is
to be noted that even P.W.1 testified the said fact that A.2 and
A.4 came to the house and took away Sirisha, though she was
being given fed by her mother. The evidence of P.W.1 to P.W.3
that A.3 brought the deceased and left her at the house of P.W.1
with a demand to pay the balance dowry is not an omission. The
improved evidence from P.W.1 to P.W.3 is that A.2 and A.4 took
away Sirisha, the daughter of deceased. It is not relating to on
any material aspects because ultimately the deceased was
supposed to be in the house of her in-laws when she was
dropped by A.3 at the house of P.W.1 with a demand to pay the
balance dowry. In my considered view, the aforesaid omissions
are not at all material. Apart from this, there is no whisper in
Ex.P.1 that A.1 insisted P.W.2 and P.W.3 to execute a bond
about the welfare of the deceased, for which they refused.
However, when the evidence of P.W.2 and P.W.3 is such that
when they dropped the deceased at the house of A.1 and that
A.1 insisted that they have to execute a bond to the effect that
the deceased shall not die by herself for which they refused to
execute any such bond, there was no cross examination stating
that the above portion of the evidence of P.W.2 and P.W.3 were
on account of any omissions from their statements during
investigation. However, the substratum of the case of the
prosecution as projected in Ex.P.1 was fully adhered to by P.W.1
to P.W.3. Even if the part of the evidence of P.W.1 to P.W.3
which was not there in Ex.P.1 for a moment is excluded from
consideration, the case of the prosecution as projected in Ex.P.1
remained intact.
40) Now, it is a matter of appreciation as to whether the
evidence of P.W.1 to P.W.3 is liable to be believed.
41) As seen from the cross examination part of P.W.1,
she testified and reiterated that A.1 contacted her in phone at
about 2-00 p.m., and informed her about the death of deceased.
She denied that she does not know how to use and talk in the
phone and that A.1 did not contact her in phone and did not
inform anything. The above said suggestion given to P.W.1 on
behalf of A.1 is not at all convincing. A duty was cast upon A.1
being the husband of the deceased to communicate about the
death of deceased to P.W.1. If not A.1 who intimated the said
fact to P.W.1 was not clarified by the accused. The evidence of
P.W.1 that she came to know about the death of deceased by
way of a phone call from A.1 at 2-00 p.m. has basis in Ex.P.1.
42) The defence of A.1 before P.W.1 is that the
deceased used to suffer from stomach pain and was unable to
bear the said pain, she committed suicide and that on the advice
of the elders, she lodged a false complaint against the accused.
She denied the said suggestion. P.W.2 also denied the defence
of the accused that the deceased was suffering from stomach
pain and that unable to bear the said pain, she committed
suicide. P.W.3 also denied a suggestion that the deceased was
suffering from stomach pain and unable to bear the said pain,
she died. This aspect that the deceased committed suicide on
account of stomach pain will hereinafter be discussed.
43) It is to be noted that one of the contentions of the
appellant is that P.W.1 did not lodge the report promptly.
According to the evidence of P.W.1, she along with P.W.2 and
P.W.3 went to the house of accused where the dead body was
lying by 5-00 p.m. and they waited for arrival of other people
and thereafter decided to give a report. Thus, according to
them, they went to the police station at 9-00 p.m., so as to
lodge a report. It is borne out by the record that scribe of Ex.P.1
was P.W.5. According to him in cross examination, Ex.P.1 was
drafted by him outside the police station. As seen from Ex.P.1
coupled with the evidence of P.W.12 that on 02.07.2009 at
11-00 p.m., P.W.1 gave a report to him and it was registered as
a case in Crime No.61 of 2009. It is to be noted that P.W.1 was
no other than mother of deceased, who came to know about the
occurrence and went to the house of A.1 and waited for arrival
of elders. Considering the same, I am of the considered view
that in a case of this nature when P.W.1 came to know about
the death of deceased, it was quite natural for her to ponder
over as to whether a report is to be lodged or not and nothing
suspicious could be found on the part of P.W.1 for lodging of
report at 11-00 p.m.
44) According to arguments of the learned counsel for
the appellant/A.1 as A.1 did not meet abnormal demand made
by P.W.1 to pay huge amounts, Ex.P.1 was pressed into service.
It is to be noted that the learned defence counsel during cross
examination of P.W.1 elicited certain facts which are to the
effect that by 9-00 p.m., P.W.1 did not entertain the idea giving
in complaint. The elders on their side and the elders in the
village advised them to give a report to the police. Though the
elders of the village of the accused advised them that they may
see that double the amount of dowry will be returned, but their
people did not agree for, stating that public will scold her, if she
keep quiet by taking money. Hence, they decided to lodge a
report. The above answers elicited from the mouth of P.W.1
means that she was not at all fond of money though double the
amount of dowry was promised to be given to P.W.1.
Considering the same, absolutely, there was no possibility for
due deliberations and concoctions. The evidence of P.W.1 with
regard to the delay in lodging Ex.P.1 is nothing but few hours
and its stand to the test of scrutiny. Absolutely, there was no
possibility for any due deliberations and concoctions on account
of few hours delay in lodging Ex.P.1.
45) It is to be noted that P.W.2 and P.W.3 were kith and
kin of P.W.1 being co-sister and sister-in-law. It is quite natural
for P.W.1 to take their help to drop the deceased at the house of
A.1 and it was also quite natural for P.W.2 and P.W.3 to help
P.W.1 so as to take the deceased to the house of A.1. They
withstood the probing cross examination.
46) During cross examination P.W.2 testified that she
and her husband acted as elders in the settlement of marriage
and also performance of the marriage. Her house and the house
of P.W.1 are nearby. The house of Kosuri Lakshmi (L.W.4) is
also in the same street. Before the death of deceased, P.W.1
told her on two occasions that the accused used to harass the
deceased demanding for payment of balance dowry. But, by
then she and her husband did not intervene. She denied that
accused did not harass the deceased and she did not go to the
house of accused for dropping the deceased and that she is
deposing false. Coming to the cross examination of P.W.3, she
deposed that P.W.1 gave instructions for drafting report and her
brother prepared the report. She denied that accused did not
harass the deceased and that she is deposing false.
47) The evidence of P.W.2 and P.W.3 corroborated the
evidence of P.W.1 about their role in taking the deceased to the
house of A.1 and their assurance to A.1 to see that the balance
of dowry will be paid within a time bound period. P.W.2 and
P.W.3 categorically testified the demand made by A.1 when took
the deceased to the house of A.1 so as to drop her at request of
P.W.1. Virtually, P.W.2 and P.W.3 have no motive at all to
depose false against the accused.
48) As seen from the evidence of P.W.4 and P.W.6, who
were the neighbourers, they spoke of the previous night incident
where A.1 beat the deceased. According to P.W.4, one night
prior to the day of night there was a quarrel between her and
A.1 and A.1 beat Sundara Mani. According to her cross
examination, her house gate is towards north of the house of
accused. Though she deposed in cross examination that police
examined her initially at her house and subsequently police
called her and examined her when she was at a distance of 100
yards from the dead body, nothing abnormal could be found in
her answers. The contention of the appellant that police
examined twice or thrice P.W.4 for obvious reasons deserves no
merits in my considered view.
49) Coming to the evidence of P.W.6, she also spoke of
the fact that previous day night prior to the death of Sundara
Mani, A.1 beat Sundara Mani. It is to be noted that according to
her, she came to know about the beating by A.1 against
Sundara Mani through A.2 and A.2 set forth a reason before
P.W.6 that a quarrel was regarding preparation of fish curry.
Though P.W.6 was not a witness to the above said beating, but
her cross examination reveals that as she was present in her
house, she heard about the said beating. The facts and
circumstances are such that as the neighbourers i.e., P.W.4 and
P.W.6 had knowledge about the quarrel between A.1 and
deceased in the previous night which resulted into beating by
A.1, A.2 canvassed a theory that it was a petty issue on account
of a dispute relating to preparation of fish curry. So, no
credence can be attached to the so-called version of A.2 that the
dispute was only on account of non-preparation of fish curry.
P.W.6 reiterated in cross examination that she could hear the
utterings and beatings from the house of the accused when she
was in her house. Thus, P.W.4 and P.W.6 who were the
neighbourers adjacent to the house of A.1 categorically testified
the physical assault made by A.1 against the deceased in the
previous night.
50) The factum of P.W.2 and P.W.3 taking away the
deceased from the house of P.W.1 and dropping her at the
house of A.1 was hardly within a period of 7 to 9 days prior to
the death of deceased. The prosecution adduced consistent
evidence to the effect that somehow or the other the deceased
was dropped at the house of P.W.1 for no fault of her from her
in-laws house and A.1 in the entire cross examination did not
challenge the testimony of P.W.1 to P.W.3 about staying of the
deceased along with her mother as above for a considerable
period of time. As this Court already pointed out the ultimate
destiny of the deceased should be at her in-laws house and that
is the reason why P.W.1 took initiative and with the help of
P.W.2 and P.W.3 dropped the deceased at the house of A.1.
Hence, the date of death of deceased was hardly within a period
of 7 to 9 days subsequent to the dropping of the deceased by
P.W.2 and P.W.3 at A.1‟s house.
51) The case of the prosecution that P.W.1 came to
know about the death of deceased through A.1 was fully
established.
52) As this Court already pointed out the death of the
deceased was otherwise than in normal circumstances within a
period of seven years from the date of marriage and it was in
her in-laws house.
53) The evidence of P.W.1 to P.W.3 categorically proves
the fact that soon before the death, the deceased was subjected
to harassment mentally and physically in connection with a
demand for balance dowry. The evidence of P.W.4 and P.W.6
supports the evidence of P.W.1 to P.W.3 with regard to the
physical assault on the deceased.
54) It is to be noted that the solitary defence of A.1 is
nothing but denial simplicitor by stating that he never demanded
any dowry and that on account of severe ill-health, deceased
committed suicide. The appellant/A.1 got advanced a contention
before the learned Additional Sessions Judge that unable to bear
the stomach pain continuously, she committed suicide. It is no
doubt true that the standard of proof on the part of A.1 to
succeed in the defence cannot be on par with the standard of
proof with which the prosecution has to establish the guilt.
55) Now, the defence of A.1 is to be tested on the touch
stone of preponderance of probabilities. According to A.1 for no
fault of him, the deceased committed suicide unable to bear the
stomach pain. P.W.1 to P.W.3 quietly denied the said defence of
A.1. Such alleged ill-health of the deceased for a long period
would have been borne out by any record, if really the said
defence is true. If really the deceased was suffering with
unbearable stomach pain for a continuous period, definitely, A.1
would have produced necessary proof in the form of O.P. or the
medical prescription, etc. Nothing is forthcoming from the
accused to probabalize his defence. Even during Section 313 of
Cr.P.C. examination, accused had an opportunity to explain
certain things and nothing could be found in the statement of
A.1 in Section 313 of Cr.P.C. examination that the deceased was
suffering with stomach pain and that unable to bear the said
stomach pain, she committed suicide. Thus, what all the defence
set forth by the accused during cross examination of P.W.1 to
P.W.3 is nothing but an afterthought. A.1 did not venture to set
forth this type of defence during cross examination of P.W.13,
the Sub-Divisional Police Officer i.e., the investigating officer. If
really the deceased was suffering such an ill-health, it is for A.1
to state as to what care he had taken to provide necessary
medical aid being her husband. Therefore, A.1 miserably failed
to probabalize his defence that the deceased unable to bear the
stomach pain, committed suicide.
56) It is to be noted that the prosecution did not
examine one of the mahazar witnesses i.e., L.W.16-Akumarthi
Abbulu and given up his examination. As the prosecution
examined P.W.9, who supported the case of the prosecution, it
appears that he was given up. It is the quality of evidence that
weighs but not quantity. No adverse inference can be drawn for
non-examination of L.W.16.
57) As seen from the evidence of P.W.9, who was the
Village Revenue Officer, he testified about the fact that on
03.07.2009 at 7-30 a.m. and 8-00 a.m., he found the dead body
by going to the house of the accused at request of police and in
his presence scene observation was conducted and one
Akumarthi Abbulu also acted as a mediator and he (P.W.9)
scribed the said report and police seized two rope pieces and
one rope piece was seized from the rafter of the roof and the
other which was lying by the side of the dead body and that he
was also present at the time of inquest over the dead body of
the deceased. The evidence of P.W.9 is consistent with the
evidence of P.W.11, who conducted inquest over the dead body
of the deceased. Their evidence is further consistent with the
evidence of P.W.13, Sub-Divisional Police Officer. Thus, the
contention of the appellant that the prosecution did not examine
L.W.16 is devoid of merits.
58) The Hon‟ble Supreme Court in The State of Andhra
Pradesh v. Raj Gopal Asawa and others1 had an occasion to deal
with what is soon before her death in view of the provisions of
Section 304-B IPC and 113-B of the Indian Evidence Act, 1872.
It is apposite to extract here the observations of the Hon‟ble
Supreme Court at Para No.11, which are as follows:
"11. A conjoint reading of Section 113-B of the Evidence
Act and Section 304-B IPC shows that there must be
material to show that soon before her death the victim
1 (2004) 4 SCC 470
was subjected to cruelty or harassment. Prosecution has
to rule out the possibility of a natural or accidental death
so as to bring it within the purview of the 'death occurring
otherwise than in normal circumstances'. The expression
'soon before' is very relevant where Section 113-B of the
Evidence Act and Section 304-B IPC are pressed into
service. Prosecution is obliged to show that soon before
the occurrence there was cruelty or harassment and only
in that case presumption operates. Evidence in that
regard has to be led by prosecution. 'Soon before' is a
relative term and it would depend upon circumstances of
each case and no strait-jacket formula can be laid down
as to what would constitute a period of soon before the
occurrence. It would be hazardous to indicate any fixed
period, and that brings in the importance of a proximity
test both for the proof of an offence of dowry death as
well as for raising a presumption under Section 113-B of
the Evidence Act. The expression 'soon before her death'
used in the substantive Section 304-B IPC and Section
113-B of the Evidence Act is present with the idea of
proximity test. No definite period has been indicated and
the expression 'soon before' is not defined. A reference to
expression 'soon before' used in Section 114. Illustration
(a) of the Evidence At is relevant. It lays down that a
Court may presume that a man who is in the possession
of goods 'soon after the theft, is either the thief has
received the goods knowing them to be stolen, unless he
can account for his possession. The determination of the
period which can come within the term 'soon before' is left
to be determined by the Courts, depending upon facts and
circumstances of each case. Suffice, however, to indicate
that the expression 'soon before' would normally imply
that the interval should not be much between the
concerned cruelty or harassment and the death in
question. There must be existence of a proximate and
live-link between the effect of cruelty based on dowry
demand and the concerned death. If alleged incident of
cruelty is remote in time and has become stale enough
not to disturb mental equilibrium of the woman
concerned, it would be of no consequence".
59) So, by virtue of the above, it is very clear that „soon
before‟ is a relative term and it would depend upon the
circumstances of each case and no straightjacket formula can be
laid down as to what would constitute a period of soon before
the occurrence. No definite period has been indicated. Soon
before death is not defined. The Court has to decide as to what
is soon before death, basing on the proximity test.
60) The evidence of P.W.1 to P.W.3 categorically proves
the fact that soon before death the deceased was subjected to
harassment in connection with a demand for dowry. The
embodied presumption under Section 304-B of IPC and further
the statutory presumption under Section 113-B of the Indian
Evidence Act, 1872 further strengthens the case of the
prosecution. As the evidence on record categorically proves the
fact that soon before her death, the deceased was subjected to
physical and mental torture by A.1 in connection with a demand
for balance dowry, it is nothing but a dowry death. In my
considered view, the prosecution proved the essential
ingredients of Section 304-B of IPC and further by virtue of the
evidence let in Section 113-B of the Indian Evidence Act, 1872
further strengthens its case.
61) The learned Additional Sessions Judge as evident
from the judgment elaborately dealt with the contentions
canvassed and rightly appreciated the evidence on record and
with tenable reasons found the present appellant guilty of the
charge under Section 304-B of IPC. Further having regard to the
nature of the offence, this Court is of the considered view that
the sentence of imprisonment of ten years imposed against the
appellant, is not at all harsh.
62) In the light of the above, this Court is of the
considered view that the judgment, dated 09.11.2010 in
Sessions Case No.340 of 2009, on the file of III Additional
District & Sessions Judge, Kakinada, is sustainable under law
and facts and there are no grounds to interfere with the
aforesaid judgment.
63) In the result, the Criminal Appeal is dismissed and
the conviction and sentence imposed against appellant/A.1 in
Sessions Case No.340 of 2009, shall stand confirmed.
64) The Registry is directed to take steps immediately
under Section 388 Cr.P.C. to certify the judgment of this Court
to the trial Court on or before 07.02.2024 and on such
certification, the trial Court shall take necessary steps to carry
out the sentence imposed against the appellant and to report
compliance to this Court.
65) The appellant/A.1 is directed to surrender before the
Court below on or before 10.02.2024 and on such surrender the
learned Additional Sessions Judge shall take necessary steps to
entrust the conviction warrant. If the accused fails to surrender
on or before 10.02.2024, the learned Additional Sessions Judge
shall issue Non-Bailable Warrant and shall take necessary steps
to carry out the sentence imposed against the accused.
66) The Registry is directed to forward the copy of the
judgment along with original record to the trial Court on or
before 07.02.2024.
Consequently, miscellaneous applications pending, if any,
shall stand closed.
___________________________
JUSTICE A.V. RAVINDRA BABU
Dt. 01.02.2024.
Note: LR copy be marked.
B/o
PGR
THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU
Note:-
Registry to circulate a copy of this judgment
along with original record to the trial Court
on or before 07.02.2024.
LR copy be marked
CRL. APPEAL No.1509 OF 2010
Date: 01.02.2024
PGR
