Andhra Pradesh High Court - Amravati
Chengaipattu Nathineni Sreenivasulu, vs The State Of Ap Rep By Its Pp Hyd., on 25 January, 2024
HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
****
CRIMINAL APPEAL No.8 OF 2011
Between:
Chengaipattu @ Nathineni Sreenivasulu,
S/o Yerrappa, aged about 24 years,
Vennekapu by Caste, Pogadadoruvuvari Kandriga
(P.D. Kandriga), H/o Koruturu Village,
Indukurupet Mandal, Nellore District. ... Appellant/1st Accused.
Versus
The State of Andhra Pradesh, rep. by Sub-Divisional
Officer, Nellore through Public Prosecutor, High Court
A.P. ... Respondent/Complainant.
DATE OF JUDGMENT PRONOUNCED : 25.01.2024
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.8 OF 2011
% 25.01.2024
# Between:
Chengaipattu @ Nathineni Sreenivasulu,
S/o Yerrappa, aged about 24 years,
Vennekapu by Caste, Pogadadoruvuvari Kandriga
(P.D. Kandriga), H/o Koruturu Village,
Indukurupet Mandal, Nellore District. ... Appellant/1st Accused.
Versus
The State of Andhra Pradesh, rep. by Sub-Divisional
Officer, Nellore through Public Prosecutor, High Court
A.P. ... Respondent/Complainant.
! Counsel for the Appellant: Sri P. Gangaram Reddy
^ 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.8 OF 2011
JUDGMENT:
-
Challenge in this Criminal Appeal is to the judgment, dated
06.01.2011 in Sessions Case No.166 of 2006, on the file of III
Additional District & Sessions Judge (FTC), Nellore ("Additional
Sessions Judge" for short), where under the learned Additional
Sessions Judge found the present appellant i.e., A.1 guilty of the
charges under Section 304-B of the Indian Penal Code ("IPC" for
short) and Section 4 of Dowry Prohibition Act ("DP Act" 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 seven years for the offence under
Section 304-B of IPC and further sentenced him to suffer simple
imprisonment for one year and to pay fine of Rs.1,000/- in
default to suffer simple imprisonment for two months for the
offence under Section 4 of the Dowry Prohibition Act and that
both the sentences shall run concurrently.
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.166 of 2006 arose out of a
committal order in P.R.C.No.74 of 2005, on the file of IV
Additional Judicial First Class Magistrate, Nellore, relating to
Crime No.95 of 2004 of Indukurpet Police Station.
4) The case of the prosecution, in brief, according to
the charge sheet filed by the Sub-Divisional Police Officer,
Nellore Rural, is as follows:
(i) A.1 to A.4 are residents of Pogadadoruvuvari Kandriga
and A.5 is resident of Thummagunta Village. One Chengalpattu
@ Nathineni Sireesha (hereinafter will be referred to as
"deceased") is the wife of A.1. A.2 and A.3 are the parents of
A.1. A.4 is younger brother and A.5 is elder sister of A.1. The
deceased is the daughter of L.W.1-Thiruvalluru Varalakshmi and
L.W.2-Thiruvalluru Subba Rao. L.W.3-Chengi Subrahmanyam is
the grandfather of deceased.
(ii) A.1 married the deceased on 08.10.1999 at Sri
Dharmarajaswamy Temple, Nellore by following Hindu marriage
customs and traditions. At the time of marriage, the parents of
the deceased presented cash of Rs.2,00,000/-, gold ornaments
weighing about 20 sovereigns and household articles worth of
Rs.10,000/- to the accused as dowry on the mediation
conducted by L.W.7-Thiruvalluru Ankaiah, the own younger
brother of A.3. During wedlock, they were blessed with two
female children and they are living at P.D. Kandriga village,
Indukurpet Mandal. Not satisfied with the dowry given at the
time of marriage, all the accused subjected the deceased to
physical and mental harassment by demanding her to bring
additional dowry in the form of money from her parents. The
deceased used to inform L.W.1 about the harassment being met
out to her by all the accused. At request of the deceased, L.W.1
gave Rs.5,000/- to A.1 by bidding chit. At another occasion, she
also gave Rs.4,000/- to A.1 by borrowing the same for interest.
Several times L.W.3 and L.W.8-Naguluru Sreeramulu pacified
the disputes between the accused and the deceased.
(iii) While the deceased was carrying second pregnancy,
all the accused necked out her from their house in a petty issue.
L.W.11-Ankireddipalli Bhaskara Reddy and L.W.12-Gongalreddy
Subba Reddy took the deceased to P.D. Kandriga village to the
house of accused and warned them not to repeat the
harassment against the deceased, but they continued the same
harassment and they neglected her though the deceased fell ill.
None of the accused took care of her welfare and health and
they did not provide medical aid to the deceased. Having come
to know about the same, one week prior to 27.08.2004 when
the deceased was suffering from loose motions, L.W.1 went to
P.D. Kandriga and took the deceased and her two daughters
with the permission of the accused to Nellore. After getting her
treatment at Nellore, she brought the deceased and the children
back to the house of accused situated at P.D. Kandriga in the
evening of 26.08.2004 in order to leave them with accused. On
seeing them, A.2 came out from the house and asked as to
whether they brought money as demanded by them. On the
answer given by her, A.2 warned them not to enter into the
house without bringing money. A.2 thrown the bag and baggage
of the deceased from the house. When L.W.1 questioned about
high handed behavior of A.2, A.1 came out from the house and
slapped on the cheek of L.W.1. When the deceased went to
rescue of L.W.1, her mother, all the accused jointly manhandled
the deceased by beating her with hands and legs. Being unable
to bear their high handed behavior of A.1 to A.5, L.W.1 tried to
take the deceased back to Nellore, but all the accused
demanded the deceased to move from there only after signing
on the divorce papers so that the marriage of A.1 will be
performed with some other lady. Without heeding to their
demands, L.W.1 and the deceased started to go away. Then all
the accused pushed L.W.1 forcibly, took the deceased into their
house and threatened the deceased that they would kill her, if
she leave that place without signing on the divorce papers.
Then L.W.1 went to her house and turned up to the police
station on 27.08.2004 at about 9-30 p.m., for intervention of
police to save the deceased from the harassment of the accused
for dowry. On 27.08.2004 at 6-30 p.m., the deceased who is
not in a position to bear the physical and mental torture met out
by the accused, committed suicide by consuming poison and
went into unconscious state at her in-laws house. A.1 and A.3
with the help of L.W.11, L.W.12, L.W.13-Nasina Sankaramma
and L.W.14-Shaik Chettamma shifted the deceased in the
tractor of L.W.11 to Indukurpet at about 7-30 p.m. On the
advice of L.W.15-Dr. Rebala Maheswara Reddy, they took the
deceased to Dr. Ramachandra Reddy Hospital (Peoples Poly
Clinic), Nellore, by that time they reached she was found dead.
On phone message parents of deceased came to know about the
death of the deceased on 28.08.2004 at 4-00 a.m. Then they
came to P.D. Kandriga village and found the deceased with
injuries. L.W.25-Ch. Krishnanadam, Asst. Sub Inspector of
Police, recorded the statement of L.W.1 in the police station and
registered it as a case in Crime No.95 of 2004 under Section
304-B of IPC on 28.08.2004 at 6-15 a.m. and submitted express
FIR to all concerned. L.W.26-G. Eswaraiah, Sub Divisional Police
Officer, took up investigation. L.W.22-D. Nagabhushanam,
Deputy Mandal Revenue Officer, Indukurpet Mandal, held
inquest over the dead body of the deceased in the presence of
mediators and recorded the statements of L.W.1 to L.W.14.
L.W.16-T. Suresh took photographs of the dead body at the time
of inquest. On the requisition of L.W.22, the medical officers i.e.,
L.W.23-Dr. V. Kiran Kumar and L.W.24-Dr. D. Padmavathi
conducted autopsy over the dead body of the deceased on
29.08.2004 and submitted post mortem certificate opining that
the deceased died due to presence of Organ Phosphate an
insecticide poison. L.W.17-Chukkala Satyanarayana, the
Videographer, took videograph at the time of post mortem
examination at D.S.R. Government Hospital, Nellore. L.W.26-
Sub-Divisional Police Officer observed the scene of offence in the
presence of mediators and examined the statements of
witnesses and arrested A.1 and A.2 on 02.09.2004. He arrested
A.3 and A.4 on 15.10.2004. Hence, the charge sheet.
5) The learned IV Additional Judicial Magistrate of First
Class, Nellore, took cognizance of case under Section 304-B of
IPC and Sections 3 and 4 of D.P. Act. After complying the
formalities under Section 207 of Cr.P.C., and by exercising the
powers under Section 209 Cr.P.C., committed the case to the
Court of Sessions and thereupon it was numbered as Sessions
Case and made over to the III Additional District & Sessions
Judge (FTC), Nellore, for disposal, in accordance with law.
6) On appearance of the accused before the learned
Additional Sessions Judge, charges under Section 304-B of IPC
and Sections 3 and 4 of D.P. Act were framed against the
accused and explained to them in Telugu, for which they
pleaded not guilty and claimed to be tried.
7) To bring home the guilt against the accused, the
prosecution examined P.W.1 to P.W.14 and got marked Ex.P.1
to Ex.P.9 and the defence counsel got marked Ex.D.1 during
cross examination of P.W.1 and further the prosecution got
marked M.O.1-C.D. 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, for which they denied the same. A.1 stated that
he has defence witnesses, but he did not examine any
witnesses. During Section 313 of Cr.P.C. examination, when the
Court asked him as to whether he wish to say anything about
the case, he told that everything is false.
8) 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 charges under Section 304-B of
IPC and Section 4 of the D.P. Act, convicted and sentenced him
as above. The learned Additional Sessions Judge found A.2 to
A.5 not guilty of the charges and acquitted them under Section
235(1) of Cr.P.C. Felt aggrieved of the aforesaid conviction and
sentence imposed by the learned Additional Sessions Judge
under Section 304-B of IPC and Section 4 of D.P. Act, the
unsuccessful A.1 filed the present appeal.
9) Now, in deciding this Criminal Appeal, the points
that arise for consideration are as follows:
(1) Whether the prosecution proved that A.1 i.e.,
appellant on 27.08.2004 at about 6-30 p.m., in his house
committed dowry death of the deceased in the manner as
alleged?
(2) Whether the prosecution proved that A.1 demanded
the deceased and her parents for additional dowry directly
or indirectly within the meaning of Section 4 of D.P. Act?
(3) Whether the prosecution proved the charges under
Section 304-B of IPC and Section 4 of D.P. Act beyond
reasonable doubt?
(4) Whether the judgment of the learned Additional
Sessions Judge is sustainable under law and facts?
Point Nos.1 to 4:-
10) P.W.1 was mother of the deceased. P.W.2 was
grandfather of the deceased being the father of P.W.1. P.W.3
was husband of the sister of P.W.1. P.W.4 was wife of P.W.3.
P.W.5 and P.W.6 were the so-called mediators, who mediated
the issue between the deceased and the accused at the instance
of parents of deceased or at the instance of the accused, as the
case may be. P.W.7 was the Private Medical Practitioner, who
initially examined the deceased and advised that she has to be
taken to Nellore for better treatment. P.W.8 was the inquest
panchayatdar. P.W.9 was the Medical Officer, who conducted
autopsy over the dead body of the deceased. P.W.10 was the
photographer who took photographs over the dead body of the
deceased at the time of inquest. P.W.11 was the videographer,
who took videograph of the dead body at Government Hospital,
Nellore. P.W.12 was the Asst. Sub Inspector, who recorded the
statement of P.W.1 and registered FIR in Crime No.95 of 2004
under Section 304-B of IPC. P.W.13 was the Sub-Divisional
Police Officer, who conducted investigation. P.W.14 was the
Deputy Tahsildar who conducted inquest over the dead body of
the deceased.
11) There is no dispute about the marriage of the
deceased with A.1 four years prior to the death of deceased and
that during wedlock the deceased and A.1 were blessed with two
female children. These facts are not in dispute. Apart from this,
the relationship between A.1 to A.5 is not in dispute. The
evidence of P.W.1 on material aspects is that the marriage of
deceased with A.1 was performed as per their caste customs
and Hindu rites at Nellore. At the time of marriage, they gave
cash of Rs.2,00,000/-, 20 sovereigns of gold and household
articles worth of Rs.10,000/- to A.1 as dowry. The deceased
joined with A.1 to lead marital life in her parents-in-law in P.D.
Kandriga and they were blessed with two daughters. Now, they
are residing with her. The deceased and A.1 lead happy marital
life for about three months. The accused demanded the
deceased for additional dowry to purchase lands. The deceased
told her about the same. On account of the said disputes, her
father Subrahmanyam and L.W.8-Sri Ramulu went to the house
of accused to subside the disputes between them and the
deceased. As her husband was not taking care of family, she
requested her father to mediate the issue. In spite of advice by
the elders, there was no change in the attitude. They gave
Rs.5,000/- to her daughter to give the same to the accused.
There was no change in the attitude. They harassed her to bring
some more amounts. She borrowed Rs.4,000/- and gave the
same to her daughter. As and when her relatives visited the
house of the accused, the deceased used to tell them not to visit
on the ground that accused was suspecting her fidelity. One
week prior to the death of deceased, she came to know that the
deceased fell sick and accused did not provide any medical aid.
Then she brought her to give medical aid. She got her treated
by a competent doctor and after recovery she took her back to
the house of accused. She, her daughter and her
granddaughters went to the house of the accused. They asked
whether they brought the amounts as demanded. When they
told them to allow the deceased into the house, they did not pay
any heed to their words and thrown away the belongings of the
deceased on the road. A.1 beat her (P.W.1) with hand on her
cheek and when the deceased came to rescue, A.2 to A.5 beat
her indiscriminately. A.3 and A.5 insisted to convince the
deceased to sign on white paper and to take her back to enable
A.1 to give divorce to her. By keeping the children and the
deceased with the accused, they did not allow to stay with them
and asked her to go away. Then she went to the police station
to lodge a report. Police advised her to settle the matter
amicably. Then she returned to her house some time later,
Mahesh came and informed that the deceased died. Then she,
her son Ashok, her father Subrahmanyam Mahesh and Lalitha
went to the house of the accused and found the dead body of
deceased on the pial. The accused did not allow them to come
near the dead body. Then she went to the police station and
lodged a report. She was under the impression that the accused
having beaten the deceased killed her. Ex.P.1 is the report given
by her. She was present at the time of inquest.
12) P.W.2, the father of P.W.1, supported the evidence
of P.W.1 on material aspects. He spoke of the marriage between
A.1 and deceased and presentation of cash of Rs.2,00,000/-, 20
sovereigns of gold, household articles worth Rs.10,000/- to the
accused and that the deceased and A.1 were blessed with two
female children and after that the accused started harassing the
deceased to bring additional amount and the deceased was
telling the said facts to him as and when she was coming to her
parents house. P.W.1 gave Rs.5,000/- to the accused through
the deceased and as accused not satisfied with that amount, she
gave Rs.4,000/- but there was no change. When the deceased
was harassed by the accused and they were not treating well, he
and Sri Ramulu wet to the house of accused and requested them
to look after the deceased well. Some days later the deceased
died. He was informed about the death of deceased by
somebody over phone. One week prior to the death of deceased,
she came to the house of P.W.1 stating that she fell sick. The
deceased was given medical aid by P.W.1 and after recovery she
was taken back to by P.W.1 to the house of accused. P.W.1 told
him that accused did not allow her into house and beat her and
the deceased for not bringing amount. She also told him that
the accused was demanding the deceased to give divorce and to
sign on some papers. After knowing the death of deceased, he
and others went to the house of accused and found the dead
body of deceased lying on the pial and by then the accused were
not present.
13) The evidence of P.W.3 supported the presentation of
cash, gold ornaments and household articles. He spoke of the
fact that P.W.1 gave Rs.5,000/- in one occasion and Rs.4,000/-
in another occasion. He further deposed that when he visited the
house of accused to see the deceased, she told him not to come
to their house, as the accused attributed unchastity to her. He
further corroborated the evidence of P.W.1 by deposing that at
one instance P.W.1 brought the deceased to provide necessary
medical aid and when she was taken back to the house of
accused, they did not allow the deceased and insisted her to
sign on some papers to get divorce. On coming to know about
the death of the deceased, he and his wife came to the house of
P.W.1 and from there they went to the house of accused and
found the dead body of the deceased on the pial. Thereafter,
P.W.1 presented a report.
14) The evidence of P.W.4, who is the wife of P.W.3, is
also similar on crucial aspects i.e., dowry of Rs.2,00,000/-,
presentation of gold ornaments and household articles to the
accused and the demand made by accused to give additional
dowry and complying the demands at two instances by giving
Rs.5,000/- and Rs.4,000/- and by providing medical aid to the
deceased and further so-called taking back the deceased to the
house of accused and the incident happened at the house of
accused, etc.
15) P.W.5 is the mediator, who deposed that at request
of P.W.1 and her husband in the year 2003, he and P.W.2 went
to the house of accused to convince them to look after the
deceased well. He was told by P.W.1 that they gave some
amounts to the accused but the accused were harassing the
deceased. Hence, he and P.W.1 advised A.1 to A.3 not to harass
the deceased and look after her well and also stated that the
parents of deceased are not in a position to give any amount.
Subsequently, he came to know that the accused did not look
after the deceased and she died. In the month of August, 2004,
on hearing about the death of deceased, he went to the house of
accused and found the dead body lying on the pial with some
injuries on her body.
16) P.W.6 is another mediator, who deposed that there
used to be disputes in between the deceased and A.1 to A.3 with
regard to the dowry amount and on the plea that the deceased
was not attending agricultural work. On one occasion when the
deceased went away to her parents‟ house, A.1 requested him
to act as a mediator to bring back the deceased to his
matrimonial fold. Then he, A.1 and Subba Reddy went to the
parents‟ house of deceased and requested her to come and join
with A.1. Accordingly, she came and joined with A.1 and both
lead happy marital life for about six months. He advised the
accused not to have any disputes with deceased. On one day in
the month of August, 2004 at about 5-00 p.m., he returned
back from the fields and found A.1 was bringing the deceased by
holding her and A.3 told that the deceased consumed
something. Then he and Subba Reddy went there and advised
A.3 to give butter milk and though butter milk was poured in the
mouth of deceased, she could not swallow the same. Then she
was taken in a tractor to Indukurpet to an R.M.P. Doctor, who
advised to take the deceased to Nellore. He gave Rs.1,000/- to
the grandmother of A.1 and asked them to take the deceased to
Nellore and accordingly she was taken to Nellore. At about 9-30
p.m., the dead body of deceased was brought back to the house
of accused.
17) P.W.7 spoke to the fact that about six years ago on
one occasion at 6-00 p.m., some persons brought a lady in a
tractor, who was in the state of unconscious. He examined her
and she was almost in coma stage. He advised them to take her
to Nellore. The person, who was brought to him, was aged about
25 to 30 years and she was a resident of P.D. Kandriga village.
18) P.W.8, the inquest panchayatdar, supported the
case of the prosecution by testifying that he acted as
Panchayatdar to be present at the time of inquest was held over
the dead body of deceased Shrirsha. Ex.P.2 is the inquest.
19) P.W.9, the medical officer, who conducted autopsy
over the dead body of the deceased, whose evidence will be
referred hereinafter.
20) P.W.10, photographer, testified that he took
photographs over the dead body of deceased and Ex.P.5 is the
photographs five in number.
21) P.W.11, the Videographer, who videographed the
dead body.
22) P.W.12 spoke of the statement of P.W.1 recorded by
him on 28.08.2004 at 6-15 p.m. and registration of the same as
a case in Crime No.95 2004 under Section 304-B of IPC. Ex.P.6
is the FIR.
23) P.W.13 is the Sub-Divisional Police Officer, who
speaks of his investigation.
24) P.W.14, the Deputy Tahsildar, spoke of the factum
of conducting inquest over the dead body of the deceased by
recording the statements of kith and kin of the deceased.
25) Sri P. Ganga Rami Reddy, learned Counsel for
appellant, would strenuously contend that the evidence of P.W.1
to P.W.4 is interested in nature. For obvious reasons, the
prosecution did not examine the husband of P.W.1 i.e., father of
deceased. If he was examined by the prosecution, truth would
have come out. The prosecution did not establish the essential
ingredients of Section 304-B of IPC and Section 4 of Dowry
Prohibition Act, for which A.1 was convicted. The learned
Additional Sessions Judge having acquitted A.2 to A.5, as
charges were not proved, erred in believing the case of the
prosecution insofar as A.1 is concerned. The prosecution did not
adduce convincing evidence to prove that the deceased was
subjected to cruelty or harassment on account of demand for
additional dowry. Ex.P.1 did not disclose that the demands are
made towards additional dowry. The learned Additional Sessions
Judge erroneously relied upon the evidence of P.W.5 and P.W.6
who did not speak of the demand of additional dowry. The
defence of the accused was that P.W.1 did not like the marriage
between the deceased and A.1 and demanded the deceased and
A.1 to come and to reside in the village of P.W.1 for which A.1
did not agree and having vexed with the attitude of P.W.1, the
deceased committed suicide. Though the commission of suicide
was in the house of A.1, but on that ground, the case of the
prosecution cannot be strengthened. Though the death of
deceased was on account of consumption of pesticides poison,
the deceased was compelled to do so only on account of attitude
of P.W.1. The learned Additional Sessions Judge did not consider
the defence of the accused in proper perspective. With the
above submissions, he would contend that the prosecution
utterly failed to establish the ingredients of Section 304-B of IPC
and Section 4 of Dowry Prohibition Act. He would also contend
that P.W.1 filed a Pauper O.P. without paying Court fee to
recover the alleged dowry amounts given to A.1 and when she
had no capacity to pay Court fee, it was improbable that they
could have paid huge amount of Rs.2,00,000/- towards dowry to
A.1. The learned Additional Sessions Judge overlooked important
circumstances in favour of the defence, as such, he would
submit that appeal is liable to be allowed.
26) Sri N. Sravan Kumar, learned counsel, representing
learned Public Prosecutor, would contend that the place of death
of the deceased was in the house of A.1. The marriage of A.1
with deceased was performed four years prior to the death of
deceased. The death of deceased was otherwise than in normal
circumstances. There were injuries found on the person of the
deceased and according to medical evidence they were ante
mortem in nature. Contention of A.1 is that there was a
possibility for the deceased to receive such injuries when she
was struggling for life on ground. The prosecution established
that A.1 and A.3 took the deceased for medical help. They did
not put forth probable reason as to how the deceased committed
suicide. Without any proper reason, they attributed fault against
P.W.1 was that on account of attitude of P.W.1, the deceased
committed suicide. It is not at all tenable. Though A.1 and
deceased were blessed with two female children, A.1 bent upon
to demand additional dowry towards purchase of lands and
P.W.1 was not afforded to comply such demand because
husband of P.W.1 was not taking care of family. The prosecution
need not examine father of the deceased because P.W.1 lodged
the report and as he was not cooperative in the family affairs of
P.W.1. No malafidies can be attributed against the prosecution
on account of non-examination of father of deceased. The
evidence of P.W.1 to P.W.4 is quietly consistent. Mediators
supported the case of the prosecution. The prosecution had the
benefit of presumption under Section 113-B of the Indian
Evidence Act, 1872. When the deceased fell ill and when P.W.1
provided medical aid by taking her to her house and later
brought back the deceased to the house of A.1, P.W.1 was not
allowed into the house and A.1 slapped P.W.1 for which
deceased intervened and even deceased was also subjected
torture and evidence goes to show that soon before her death,
the deceased was subjected to harassment and cruelty on
account of a demand for additional dowry. The learned
Additional Sessions Judge rightly appreciated the evidence on
record, as such, the appeal is liable to dismissed.
27) As one of the charges is under Section 304-B of
I.P.C., it is pertinent to extract here which 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.]
28) Apart from this, there is a presumption under
Section 113-B of the Indian Evidence Act, 1872 regarding dowry
death which 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)."
29) At this juncture, it is pertinent to look into the case
of the prosecution as projected in Ex.P.1.
30) As seen from Ex.P.1, it was the statement recorded
by the police from P.W.1. The allegations, in brief, were that at
the time of marriage of the deceased with A.1, parents of
deceased presented cash of Rs.2,00,000/- as dowry and further
20 sovereigns of gold and household articles worth of
Rs.10,000/-. After the marriage, the accused demanded for
additional amounts so as to purchase lands and in two occasions
P.W.1 complied the demand by handing over Rs.5,000/- by
participating in chit and further Rs.4,000/- by borrowing the
amount on interest. The accused used to suspect even the
fidelity of P.W.1. At one occasion when the deceased fell ill, they
did not provide any medical aid. Then P.W.1 brought back the
deceased and provided medical aid and it was happened one
week prior to the death. When she took back the daughter to
the house of accused, she was not allowed into house and
accused thrown away the household belongings of the deceased.
When she (P.W.1) questioned, A.1 slapped on her cheek and
when the deceased intervened, he was also beaten with a
demand to sign on white papers to get divorce. It was happened
one day prior to the death. On 27.08.2004 she went to the
police station to lodge a report and later she came to know that
the deceased died. These are the substance of the allegations.
Ex.P.1 also reveals that she entertained a suspicion that the
deceased might have been killed.
31) There is no dispute that P.W.1 to P.W.4 spoke of the
contents of Ex.P.1 report.
32) Firstly, this Court would like to deal with as to
whether the prosecution proved that the death of deceased was
happened within seven years from the date of marriage
otherwise than in normal circumstances. Ex.P.1 alleges that the
marriage of the deceased with A.1 was happened four years
prior to the statement. This fact was spoken to by P.W.1. There
is no dispute that the marriage of A.1 with the deceased was
happened four years prior to the death of deceased. In the
entire cross examination of P.W.1 to P.W.4, this fact is not
disputed. There is no dispute about the date of death of
deceased. The death of deceased was admittedly within a period
of seven years from the date of marriage.
33) According to P.W.1 to P.W.4, the deceased
consumed pesticide and she died. According to evidence of
P.W.6, one of the mediators, when he found A.1 bringing
deceased by holding her, A.3 told that the deceased consumed
something. There is evidence of P.W.8, the inquest
panchayatdar, supporting the case of the prosecution that the
deceased died on account of consumption of pesticide. There is
also evidence of medical officer, P.W.9. According to the
evidence of P.W.9, on 29.08.2004 he conducted post mortem
examination on the dead body of deceased Sirisha from 11-00
a.m. onwards and found the following external injuries:
Multiple abrasions are present on the anterior chest wall
both breast right shoulder and over the ant abdominal wall in
the left iliac region. In both axillar, two abrasions obliquely
present measuring about 3 x 1 ½ c.m., 2 x 3 cm., away from
the axillary pits. Both abraded marks present in right axilla and
left axilla are fresh. A bruise measuring about 5 x 1 cm. over the
right shoulder is present.
On the back and on the post abdominal wall and left hip
abrasion are present. Single abraded wounds are present on
the right elbow on extreme aspect of the left knee.
Superficial venous congestion present on the neck and
lower part of cheek and on upper anterior chest wall.
So, he found the above external injuries. Though he
deposed on 27.01.2010 that basing on the chemical report, his
findings is that the death of the deceased was due to Cardio
Pulmanary arrest and the injuries found on the person of the
deceased is ante mortem in nature and Ex.P.4 is his final
opinion, the prosecution got recalled him for further chief
examination and he deposed that as per the RFSL report, the
cause of death of the deceased is due to presence of Organic
Phosphate Insecticides. Basing on the report given by RFSL, he
gave opinion that the death was due to Organic Phosphate
Insecticide. Due to oversight, in the earlier occasion, he deposed
that the death is due to Cardio Pulmanary arrest.
34) As seen from the post mortem report, his final
opinion is that the death was due to presence of Organic
Phosphate Insecticide. Apart from this, even according to the
defence of A.1 before P.W.1, the deceased committed suicide by
consuming insecticide. Thus, the cause of death was not
natural. The cause of death was in the presence of A.1 and A.3.
It is nothing but a death otherwise than in normal
circumstances.
35) Apart from this, the place of death of the deceased
was in the in-laws house. Apart from this, P.W.9 testified the
presence of several injuries on the person of the deceased which
are ante mortem in nature. The site of injuries i.e., abrasions on
the anterior chest wall and abdominal wall in the left iliac region
and further two abrasions were obliquely present at both axillar.
Further he found abraded marks in the right axilla and left axilla
fresh in nature. He found a bruise over the right shoulder. He
also found abrasions on the post abdominal wall and left hip. He
found single abraded wounds on the right elbow on extreme
aspect of the left knee. During cross examination, P.W.9
deposed that if a poisonous substance is taken, the person who
took such poison would suffer struggling for life and if a person
falls on a hard surface, there is a chance of receiving abrasions.
36) It is to be noted that nothing was suggested to
P.W.1 or P.W.9 during cross examination that the accused found
the deceased struggling for life on ground. On the other hand,
the place of death was in the in-laws house and according to the
evidence of P.W.6, he found A.1 and A.3 holding the deceased
and A.3 revealed that the deceased consumed something. The
evidence of P.W.6 discloses that he advised them to take the
deceased to Nellore and accordingly the deceased was taken to
Nellore in an auto. The evidence of P.W.7, the Private Medical
Practitioner, revealed that the deceased was firstly brought to
him in a tractor and he deposed that she shall be taken to
Nellore for better treatment as already by then she was in
Coma. Therefore, the evidence on record discloses that firstly
the deceased was taken to P.W.7 and from there she was taken
to Nellore. It was done by A.1 and A.3. So, it is not a case
where the deceased struggled for life by lying herself on ground.
On the other hand, A.1 was physically present at the time of
incident and he took the deceased along with A.3 to medical
help. No positive version is coming from the mouth of A.1 to
explain the circumstances in which multiple abrasions on crucial
parts of the body of the deceased were found. All these goes to
show that the death of deceased was otherwise than in normal
circumstances within a period of seven years from the date of
marriage and it was happened in the house of A.1. The
prosecution cogently established one of the essential ingredients
of Section 304-B of IPC and Section 113-B of the Indian
Evidence Act, 1872 that the death of deceased was within a
period of seven years from the date of marriage otherwise than
in normal circumstances.
37) The next ingredient to be satisfied by the
prosecution is that soon before her death the deceased was
subjected to harassment with a demand for amounts in
connection with dowry.
38) There was an allegation in Ex.P.1 that accused
demanded for amounts to purchase lands. The evidence of
P.W.1 discloses that not being satisfied with the amounts she
given i.e., Rs.2,00,000/-, 20 sovereigns of gold and household
articles worth of Rs.10,000/-, A.1 demanded additional amounts
so as to purchase the lands. According to Section 4 of the Dowry
Prohibition Act, the demand for dowry can be directly or
indirectly. So, the context of the case of the prosecution that
P.W.1 presented dowry, gold and household articles at the time
of marriage and not being satisfied with the same, additional
amounts were demanded so as to purchase the lands.
39) It is a fact that P.W.1 during cross examination
admitted that after the death of deceased, she filed a case so as
to recover the dowry amounts from the accused and she filed a
Pauper O.P. which was dismissed directing her to pay the Court
fee and she did not prefer any appeal against the said order.
She admitted that she filed a Guardian Petition against A.1
claiming the custody of the children of the deceased on the file
of I Additional District Judge, Nellore. Those admissions made by
P.W.1 are not going to affect the case of the prosecution in any
way. According to P.W.1 presently the children of the deceased
are in her custody which is not disputed by A.1. Apart from this,
the contention of the accused is that when P.W.1 was not
afforded to pay Court fee for Pauper O.P., her contention that
she gave dowry and additional amounts cannot stands to any
reason. The above said contention deserves no merits for the
reason that even according to the accused, the concerned Court
declined to number the Pauper O.P. by directing P.W.1 to pay
the Court fee amount which means that she had the capacity to
pay the court fee even according to the contention advanced.
So, basing on the above facts, it cannot be held that P.W.1 was
not having any financial capacity to pay the amounts either at
the time of marriage or subsequent to the marriage.
40) In a case of dowry death, the kith and kin of the
deceased were the proper persons to speak of the demand. The
evidence of P.W.1 that pursuant to the demands, she paid a
sum of Rs.5,000/- at one occasion to his daughter so as to give
the same to A.1 and further borrowed Rs.4,000/- and gave the
same has support from the contents of Ex.P.1. P.W.2 to P.W.4
claimed that they came to know about the said fact from P.W.1.
It is to be noted that though P.W.1 to P.W.4 were inter-related
but on that ground itself the case of the prosecution cannot be
thrown out.
41) P.W.5 and P.W.6 were the so-called mediators who
mediated the issue. According to P.W.5 at request of P.W.1 and
her husband, he and P.W.2 went to the house of accused to
convince them to look after the deceased well. He claimed that
he was told by P.W.1 that they gave some amounts to the
accused but the accused were harassing her daughter. He
testified that they advised A.1 to A.3 not to harass the deceased
and to look after her well. The parents of the deceased are not
in a position to give any amount to them. During cross
examination, he denied that he did not mediate the disputes of
A.1 and deceased and he did not visit the house of accused and
that he is deposing false. Nothing is elicited from the evidence of
P.W.5 as to how he is interested in the case of the deceased.
Apart from this, there is also evidence of P.W.6, who conducted
some sort of mediation at the instance of accused so as to bring
the deceased to the fold of A.1. He categorically testified that
there used to be disputes between the deceased and accused
with regard to dowry amount and also on the plea that the
deceased was not attending agricultural work. He testified that
when the deceased went away to her parents‟ house at request
of A.1, he acted as mediator and brought back the deceased to
his matrimonial fold. He further claimed that he advised the
accused not to have any dispute with the deceased. During cross
examination his evidence was sought to be challenged on the
ground that he is deposing false. Absolutely, P.W.6 who had no
relation with either party has no reason to depose false. It is a
case where P.W.5 and P.W.6 claimed that they intervened in the
disputes between A.1 and deceased and they advised the
accused to behave with the deceased properly. In my considered
view, the evidence of P.W.5 and P.W.6 is of much use to the
case of the prosecution because they categorically testified that
there was dispute on account of dowry demands from the part
of A.1.
42) During cross examination of P.W.1 accused agitated
that she had no intention to give the deceased in marriage to
A.1 and that she had no liking towards the deceased as she
married A.1. She denied that she insisted the deceased and A.1
to come to Nellore. She denied that she abused the deceased for
not paying any heed to her words and having vexed with her
attitude, the deceased consumed poison and died.
43) These suggestions were not given to P.W.2 to P.W.4
or P.W.5 and P.W.6, the mediators. It is to be noted that the
deceased and A.1 were blessed with two children. It is rather
improbable to assume that though the deceased and A.1 are
blessed with two female children, P.W.1 had an intention to spoil
their life by making a demand to come to Nellore. The
suggestion given to P.W.1 that she abused the deceased for not
paying any heed to her words and she having vexed with the
behavior of her, the deceased consumed pesticide was nothing
but baseless and without any substance. No mother like P.W.1
would go to the extent of spoiling marital life of her daughter,
especially, when the deceased and A.1 were blessed with two
female children. In my considered view, there is consistency in
the evidence adduced by the prosecution with regard to the
demand made by A.1 to bring additional amounts so as to
purchase lands.
44) The Hon‟ble Supreme Court in The State of Andhra
Pradesh v. Raj Gopal Asawa and others1 had an occasion to
consider the essential ingredients of Section 304-B of IPC and
further the definition of the word „dowry' in Section 2 of the
Dowry Prohibition Act and dealt with the issue elaborately at
Para Nos.8 to 11. It is necessary to extract here the
observations of the Hon‟ble Supreme Court, as above:
"8. Explanation to Section 304B refers to dowry "as
having the same meaning as in Section 2 of the Act", the
question is: what is the periphery of the dowry as defined
therein? The argument is, there has to be an agreement
at the time of the marriage in view of the words "agreed
to be given" occurring therein, and in the absence of any
such evidence it would not constitute to be a dowry. It is
noticeable, as this definition by amendment includes not
only the period before and at the marriage but also the
period subsequent to the marriage. This position was
highlighted in Pawan Kumar and Ors. v. State of Haryana
(1998 CriLJ 1 144) .
9. The offence alleged against the respondents is under
Section 304B IPC which makes "demand of dowry" itself
1 (2004) 4 SCC 470
punishable. Demand neither conceives nor would conceive
of any agreement. If for convicting any offender,
agreement for dowry is to be proved, hardly any offenders
would come under the clutches of law. When Section 304B
refers to "demand of dowry", it refers to the demand of
property or valuable security as referred to in the
definition of "dowry" under the Act. The argument that
there is no demand of dowry, in the present case, has no
force. In cases of dowry deaths and suicides,
circumstantial evidence plays an important role and
inferences can be drawn on the basis of such evidence.
That could be either direct or indirect. It is significant that
Section 4 of the Act, was also amended by means of Act
63 of 1984, under which it is an offence to demand dowry
directly or indirectly from the parents or other relatives or
guardian of a bride. The word "agreement" referred to in
Section 2 has to be inferred on the facts and
circumstances of each case. The interpretation that the
respondents seek, that conviction can only be if there is
agreement for dowry, is misconceived. This would be
contrary to the mandate and object of the Act. "Dowry"
definition is to be interpreted with the other provisions of
the Act including Section 3, which refers to giving or
taking dowry and Section 4 which deals with a penalty for
demanding dowry, under the Act and the IPC. This makes
it clear that even demand of dowry on other ingredients
being satisfied is punishable. It is not always necessary
that there be any agreement for dowry.
10. Section 113B of the Evidence Act is also relevant for
the case at hand. Both Section 304B IPC and Section
113B of the Evidence Act were inserted as noted earlier by
the Dowry Prohibition (Amendment) Act 43 of 1986 with a
view to combat the increasing menace of dowry deaths.
Section 113B reads as follows:-
"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)."
The necessity for insertion of the two provisions has been
amply analysed by the Law Commission of India in its 21st
Report dated 10th August, 1988 on 'Dowry Deaths and
Law Reform'. Keeping in view the impediment in the pre-
existing law in securing evidence to prove dowry related
deaths, legislature thought it wise to insert a provision
relating to presumption of dowry death on proof of certain
essentials. It is in this background presumptive Section
113B in the Evidence Act has been inserted. As per the
definition of 'dowry death' in Section 304B IPC and the
wording in the presumptive Section 113B of the Evidence
Act, one of the essential ingredients, amongst others, in
both the provisions is that the concerned woman must
have been "soon before her death" subjected to cruelty or
harassment "for or in connection with the demand of
dowry". Presumption under Section 113B is a presumption
of law. On proof of the essentials mentioned therein, it
becomes obligatory on the Court to raise a presumption
that the accused caused the dowry death. The
presumption shall be raised only on proof of the following
essentials:
(1) The question before the Court must be whether
the accused has committed the dowry death of a
woman. (This means that the presumption can be
raised only if the accused is being tried for the
offence under Section 304B IPC).
(2) The woman was subjected to cruelty or
harassment by her husband or his relatives.
(3) Such cruelty or harassment was for, or in
connection with any demand for dowry.
(4) Such cruelty or harassment was soon before
her death.
11. A conjoint reading of Section 113B of the Evidence Act
and Section 304B IPC shows that there must be material
to show that soon before her death the victim 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 113B of the
Evidence Act and Section 304B 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 113B of
the Evidence Act. The expression 'soon before her death'
used in the substantive Section 304B IPC and Section
113B 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".
45) In the light of the above said decision of the Hon‟ble
Supreme Court, there need not be any agreement at the time of
marriage with regard to the dowry. As pointed out, the death of
the deceased was other than the normal circumstances and was
within a period of seven years from the date of marriage.
46) Considering the same, I am of the considered view
that the evidence of P.W.1 to P.W.4 means that what all the
demands made by A.1 was only towards additional dowry so as
to purchase lands.
47) The prosecution is bound to establish that such
demands are made soon before her death. What is soon before
her death is a question to be considered by this Court.
48) The Hon‟ble Supreme Court in Raj Gopal Asawa's
(supra) 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
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".
49) 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.
50) Coming to the present case on hand, the date of
death of deceased was on 27.08.2004 which is one day after the
incident that was occurred at the house of deceased. According
to the case of the prosecution and evidence of P.W.1, when the
deceased fell ill and as the accused did not provide proper
medical aid, P.W.1 brought the deceased so as to provide
medical aid and after recovery of her health, which is one day
prior to 27.08.2004, she took the deceased to the house of A.1.
According to the evidence of P.W.1 in this regard, when she took
the deceased back to the house of accused, accused asked as to
whether she brought any amount as demanded and she replied
that to allow the deceased into the house, as such, there was a
quarrel and even A.1 gone to the extent of slapping on the
cheek of P.W.1 for which the deceased intervened and she was
also beaten by the accused. Then she went away by leaving the
deceased alone and accused also demanded to sign on white
papers to divorce for which she refused. According to her, she
went to the police station to lodge a report, but police advised to
settle the matter amicably. Then she returned to the house and
thereafter she came to know that the deceased died. Just one
day prior to the death of the above, the said incident was
happened. If the said incident is proved, it would definitely
satisfy the proximity test.
51) During cross examination, P.W.1 denied that she did
not state to police that when she took the deceased to the house
of accused, accused asked her and the deceased whether they
brought any amount as demanded and she denied the above
said suggestion. During cross examination of P.W.13, the
investigating officer, the accused did not elicit that P.W.1 did not
state so when she was examined by him. The omission with
regard to the above incident suggested to P.W.1 was not elicited
by the accused from the mouth of P.W.13. Hence, this Court has
no reason to disbelieve the evidence of P.W.1 with regard to the
incident happened when she took the deceased to the house of
accused after providing necessary medical aid. In the light of the
above, the evidence adduced by the prosecution squarely
satisfies the proximity test.
52) It is to be noted that apart from the fact that the
death of the deceased was due to presence of Organic
Phosphate Insecticide, there were several abrasions found on
the body of the deceased which were ante mortem in nature.
The accused had no probable say whatsoever as to how such
injuries could be found on the person of the deceased which
were ante mortem in nature. It was A.1 who ultimately took the
deceased to the hospital. The absence of proper explanation
about the injuries found on the person of deceased when the
death of deceased was happened in the house of A.1 is further
strengthening the case of the prosecution. The presence of the
above said injuries means that prior to the death there was also
a possibility for physical harassment of the deceased. In my
considered view, the evidence on record fully satisfies the
proximity test that soon before her death, the deceased was
subjected to harassment mentally and physically.
53) As seen from the judgment of the learned Additional
Sessions Judge, the learned Additional Sessions Judge rightly
considered the evidence on record by appreciating the evidence
with care and caution extended benefit of doubt insofar as A.2
to A.5 is concerned.
54) Having regard to the overall facts and circumstances
and looking into the evidence available on record, this Court is
of the considered view that the prosecution categorically
established the essential ingredients of Section 304-B of IPC.
Further the evidence adduced by the prosecution attracts
Section 4 of the Dowry Prohibition Act which contemplates a
demand directly or indirectly from the parents or other relatives
or guardian of bride or bridegroom for dowry. In my considered
view, the prosecution categorically proved beyond reasonable
doubt about the charges under Section 304-B of IPC and Section
4 of the Dowry Prohibition Act. This Court does not see any
reason to interfere with the judgment of conviction and sentence
imposed against A1.
55) However, while looking into the sentence part, it is
found that the punishment imposed against A.1 for the offence
under Section 4 of the Dowry Prohibition Act was simple
imprisonment. The punishment imposed against A.1 under
Section 304-B of IPC was rigorous imprisonment. The learned
Additional Sessions Judge made an order that both the
sentences shall run concurrently. As the punishment imposed
under Section 4 of the Dowry Prohibition Act is simple
imprisonment, it cannot run concurrently. However, at this
stage, this Court cannot make it run consecutively or cannot
convert the sentence as that of rigorous imprisonment because
practically when both the sentences shall run concurrently, A.1
has to necessarily undergo rigorous imprisonment only even for
the offence under Section 4 of D.P. Act. Considering the same,
at this stage, this Court cannot literally alter the nature of the
punishment under Section 4 of the Dowry Prohibition Act.
56) In the result, the Criminal Appeal is dismissed.
57) 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 01.02.2024 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.
58) The Registry is directed to forward the copy of the
judgment along with original record to the trial Court on or
before 01.02.2024.
Consequently, miscellaneous applications pending, if any,
shall stand closed.
________________________
JUSTICE A.V. RAVINDRA BABU
Dt. 25.01.2024.
PGR
THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU
CRL. APPEAL NO.8 OF 2011
Note:
The Registry is directed to forward
the copy of the judgment along with
original record to the trial Court on
or before 01.02.2024.
Date: 25.01.2024
PGR
