Andhra Pradesh High Court - Amravati
Bonu Srinu, Srikakulam Dt., vs The State Of Ap., Rep Pp., on 6 November, 2024
Author: K Suresh Reddy
Bench: K Suresh Reddy
APHC010476672016
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3486]
(Special Original Jurisdiction)
WEDNESDAY ,THE SIXTH DAY OF NOVEMBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE K SURESH REDDY
THE HONOURABLE SRI JUSTICE K SREENIVASA REDDY
CRIMINAL APPEAL NO: 340/2016
Between:
Bonu Srinu, Srikakulam Dt., ...APPELLANT
AND
The State Of Ap Rep Pp ...RESPONDENT
Counsel for the Appellant:
1. Sri O.Manohar Reddy, learned senior counsel for appellant/A.1.
Counsel for the Respondent:
1. PUBLIC PROSECUTOR (AP)
CRIMINAL APPEAL NO: 537/2016
Between:
Donka Komaleshwar Rao, Orissa State., ...APPELLANT
AND
Bonu Srinu Srikakulam and Others ...RESPONDENT(S)
Counsel for the Appellant:
1. P NAGENDRA REDDY
Counsel for the Respondent(S):
1. PUBLIC PROSECUTOR
2. VINOD KUMAR TARLADA
2
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CRL.A.NO.340 OF 2016 & 537 OF 2016
THE HON'BLE SRI JUSTICE K.SURESH REDDY
AND
THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY
CRIMINAL APPEAL Nos.340 OF 2016 & 537 of 2016
COMMON JUDGMENT:
(per the Hon'ble Sri Justice K.Sreenivasa Reddy)
Appellant in Criminal Appeal No.340 of 2016 is A.1 in
Sessions Case No.171 of 2013 on the file of the I Additional
District and Sessions Judge, Srikakulam (hereinafter referred
to, as 'learned Sessions Judge'). The learned Sessions Judge,
vide the impugned judgment dated 11.04.2016 in the
aforesaid Sessions Case, found him guilty of the offences
punishable under Sections 304B and 498A of the Indian
Penal Code, 1860 (for brevity 'IPC'), accordingly convicted him
and sentenced to undergo rigorous imprisonment for a period
of ten years for the offence punishable under Section 304B
IPC and to undergo rigorous imprisonment for a period of
three years and to pay a fine of Rs.10,000/-, in default to
suffer simple imprisonment for a period of six months, for the
offence punishable under Section 498A IPC. Both the
sentences were directed to run concurrently. The learned
Sessions Judge found appellant/A.1 not guilty of the other
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charges levelled against him and accordingly acquitted him of
the said charges.
2. The learned Sessions Judge found the other accused
viz.A.2 to A.6, not guilty of the charges levelled against them
and accordingly acquitted them of the said charges.
Challenging their acquittal, P.W.1 preferred the other
Criminal Appeal No.537 of 2016.
3. Case of the prosecution is as follows.
A.1 is husband of one Bonu Kalyani (hereinafter referred
to, as 'the deceased'). A.2 and A.3 are parents of A.1. A.4 is
elder brother of A.1. A.5 is wife of A.4. A.6 is maternal
grandmother of A.1. Marriage of the deceased with A.1 was
performed on 25.03.2011. At the time of marriage, an amount
of Rs.3.00 lakhs and gold ornaments weighing
4 ½ tulas were given by parents of the deceased to A.1 to A.3.
Apart from the same, Rs.70,000/- was deposited in the name
of the deceased and A.1 in Agri Gold Scheme for purchasing a
bike. A.1 to A.5 were residing under one roof. After the
marriage, the deceased joined A.1 for leading matrimonial life.
Parents-in-law of A.1 invited the couple to their house on the
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occasion of Ugadi festival and gave Rs.2,000/- to him. After
return of the couple to Pathapatnam after the festival, A.1
raised a quarrel with the deceased that her parents gave only
Rs.2,000/-. When the deceased informed the same to her
parents, they convinced her to adjust in the interest of
matrimonial life. The deceased continued her Degree course
in the college at Parlakhemidi and used to visit her parents'
house during leisure times.
A.1 was working in Indian Army and developed illicit
intimacy with A.5, who is none other than wife of his elder
brother (A.4) and neglected the deceased on the ground that
she was not beautiful and demanded her to bring additional
dowry. The deceased informed about the same to her parents.
For two months after the marriage of A.1, A.4 and A.5 started
residing separately in the first floor of their house. A.1
visited home on leave on the occasion of Dasara. When he
was asked about the ill-treatment of the deceased, he stated
that the deceased was not satisfying his sexual desires. The
deceased also complained about the illicit intimacy of A.1
with A.5, and an altercation took place in that connection.
On 03.02.2012, marriage of P.W.4, who is cousin of the
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deceased, was celebrated, and A.1 did not attend the function
though he was in the house, stating that he was not
personally invited to the occasion. The deceased returned to
home after the marriage on 05.02.2012. Since then, all the
accused started harassing her both physically and mentally
demanding additional dowry. A.1 to A.6 beat her and necked
out her from home on 19.02.2012. When a report was
lodged to police in that connection, police made a General
Diary entry and called A.1 to A.6 for counselling wherein they
assured, in writing, that they would not harass the deceased
in future.
On 22.02.2012, the deceased was dropped at her house
by her brother at about 6.00 PM. At about 7.45 PM on that
day, A.1 raised a quarrel with the deceased for additional
dowry, caught hold her hand and pulled out forcibly, as a
result, her head was hit to the wall of her house and she fell
down and became unconscious. Suspecting that she died,
A.1 woke up A.3 and informed the matter to her. A.3 saw
the deceased and came to conclusion that the deceased died
and advised to pour kerosene on her and set fire, to show
that she committed suicide. A.3 brought kerosene bottle.
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A.1 shifted the deceased to bed room, kept her in sitting
position, poured kerosene on her and set fire with match box.
When flames spread, the deceased became conscious and
caught A.1. As a result, A.1 sustained burn injuries to his
hands and face. The deceased breathed her lost due to
burns. Thereafter, A.1 to A.3 raised alarm stating that the
deceased committed suicide. On hearing the same, P.Ws.6
to 8 rushed to the house of the accused. P.W.7 brought water
with pot to extinguish flames and he received slight burn
injuries to his hands in that connection. P.W.6 informed
about the incident to P.W.1 over phone. On that, P.W.1 and
other family members rushed to house of the accused by 9.45
PM and noticed the dead body of the deceased.
Basing on a report lodged by P.W.1, a case in crime
No.15 of 2012 of Pathapatnam police station was registered
for the offences punishable under Sections 302, 304B and
498A IPC. P.W.23-SDPO took up investigation, examined and
recorded statements of witnesses, visited the scene of offence,
conducted scene of offence panchanama and seized material
objects. She got photographed the scene of offence and
prepared a rough sketch of the scene of offence. P.W.20-
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Tahsildar conducted inquest over the dead body of the
deceased in the presence of inquestdars. Thereafter, the dead
body was sent for postmortem examination. P.Ws.17 and 18
conducted postmortem over the dead body of the deceased.
After receiving postmortem examination report and report
from RFSL and after completion of investigation, police filed
the charge sheet.
4. The case was taken cognizance by the Judicial
Magistrate of First Class, Pathapatnam as P.R.C.No.1 of 2013
for the offences punishable under Sections 302, 304B, 498A,
201 read with 34 IPC against A.1 and A.3, and for the
offences punishable under Section 498A IPC as against A.2,
A.4 to A.6, and committed the case to the Court of Session.
5. The learned Sessions Judge framed charges for the
offences punishable under Sections 302, 304B and 201 IPC
against A.1 and A.3 and for the offences punishable under
Sections 498A IPC against A.1 to A.6. When the respective
charges were explained to respective accused, they pleaded
not guilty and claimed to be tried.
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6. In support of the case of prosecution, P.Ws.1 to 24 were
examined and Exs.P1 to P19 were got marked, besides case
properties M.Os.1 to 9. After completion of prosecution side
evidence, the accused were examined under Section 313
CrPC to explain the incriminating circumstances appearing
against them in the evidence of prosecution witnesses. They
denied the same. On behalf of defence, no oral evidence was
adduced, but Exs.D1 to D3 were got marked. After
appreciating the evidence on record, the learned Sessions
Judge convicted and sentenced the appellant/A.1, as stated
supra, while acquitting him of the other charges, and
acquitting the other accused of the charges levelled against
them. Challenging the same, the present Criminal Appeals are
preferred.
7. The learned senior counsel Sri O.Manohar Reddy
appearing for the appellant/A.1 contended that the plea of
the accused appears to be more probable in the present
circumstances of the case that the deceased had no intention
to live with the accused since she was unwilling to marry A.1.
He further submits that on a perusal of the evidence on
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record goes to show that the accused was complaining that
the deceased was not cohabiting with A.1, which clearly goes
to show that the deceased was not willing to stay with the
accused. The learned senior counsel further emphasized that
Ex.P7 is not a substantive piece of evidence and the same is
inadmissible in evidence as the statement of dead person
when it does not relate to cause of death of the deceased and
therefore Ex.P7 is only a hearsay evidence. The learned
senior counsel further submits that the contents of Ex.P7
cannot be used for any other purpose either to corroborate or
contradict the version of prosecution witnesses. He further
submits that there is absolutely no accusation that soon
before her death, the accused harassed the deceased in
connection with demand of dowry. He further submits that
in fact, there is absolutely no evidence to show that the
accused had harassed the deceased for dowry. He submits
that the learned Sessions Judge has not appreciated the
evidence on record in right perspective and erred in
convicting and sentencing A.1 and hence, he prays to set
aside the conviction and sentence recorded by the trial court
against the appellant/A.1.
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8. The learned Assistant Public Prosecutor contended that
though there is no evidence on record to show that the
deceased was harassed in connection with dowry, there is a
complaint given by the deceased to P.W.14 stating that the
deceased was being harassed in connection with the demand
for dowry, and the said document has been marked through
P.W.14, who categorically stated to that extent that the
deceased was harassed for dowry. According to him, the
evidence adduced by the prosecution is cogent and
convincing and the judgment of the learned Sessions Judge is
well reasoned and calls for no interference. Hence, he prayed
to dismiss the Criminal Appeal No.340 of 2016.
9. On the other hand, learned counsel for the appellant in
Criminal Appeal No.537 of 2016 contended that there is
cogent evidence of material prosecution witnesses with regard
to subjecting the deceased to cruelty by the accused and A.1
and A.3 pouring kerosene on her and setting fire to her,
which resulted in her death, but the learned Sessions Judge
erred in acquitting A.1 of the other charges and in acquitting
A.2 to A.6 of the charges levelled against them.
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10. Now, the point that arises for determination is whether
the prosecution is able to bring home the guilt of the accused
for the respective charges levelled against them beyond all
reasonable doubt?
11. P.Ws.1 to 3 are closely related to the deceased.
According to P.W.1, who is brother of the deceased, marriage
of A.1 with the deceased was performed on 25.03.2011 as per
their traditions near Sai Baba Temple of Ratnalapeta of
Pathapatnam, and at the time of engagement, on demand,
they agreed to give Rs.3.00 lakhs cash, 2 ½ tulas of gold and
Rs.2.00 lakhs worth saree items, and apart from the same,
they gave 4 tulas of gold to their sister. P.W.1 further stated
that they offered Rs.50,000/- towards bike, but the accused
demanded Rs.70,000/-, and hence, P.W.1 and others opened
joint account in the name of the deceased and A.1 and
deposited Rs.70,000/-. After the marriage, the deceased left
to her in-laws' house. The couple was invited to the house of
P.W.1 for Telugu News Year Ugadi festival after their
marriage, and on that occasion, an amount of Rs.2,000/-
cash was given to A.1. The deceased called P.W.1 and others
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and informed that she was informed that less dowry was
given to the accused and less amount was given at the time of
the festival, and that she was not beautiful but his brother's
wife is beautiful, and saying so, she was beaten by A.1. It is
further deposed that A2 to A6, along with A.1, scolded the
deceased. As she was studying Degree in Parlakhemundi
college, the deceased went to house of P.W.1 and others and
informed the same. Then they asked her to be patient and
sent her to her in-laws' house. A.1, who was working as
Soldier in Army, left to attend his job, as his leave was over.
The deceased informed P.W.1 and others that whenever she
called A.1, he did not answer her call, but when he used to
call A5, she used to speak to him. The deceased suspected
A.1 as he was not speaking to her, and when she questioned
A.1, he used to beat her, and in connection with that, there
was an altercation between the deceased and A.1. Then the
matter was placed before elders viz.P.W.12. When P.W.1 and
P.W.4 went to house of A.1 and questioned him, A.1 informed
them that the deceased was not cohabiting with him and was
not acting to his wishes. They went back to their village after
informing that certain issues have to be within husband and
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wife and family. P.W.1 further deposed that the deceased
and A.1 came for marriage of P.W.4 viz. the deceased went
one week or 10 days prior to the marriage and A.1 reached on
the date of the marriage. P.W.1 further deposes that though
all of them called A.1 and requested him to attend the
marriage, he did not attend the marriage. Immediately, A.5
left from the marriage venue to Pathapatnam stating that she
had some work at Pathapatnam. P.W.1 informed the same to
the deceased. Then the deceased played all the phone call
recordings between A.5 and A.1. They are vulgar and
unspeakable. They asked P.W.1 not to take any hasty
decision since she had bright future and wanted her life to be
happy. Thereafter, they dropped the deceased at her in-laws'
house and returned back to their village. P.W.1 further
deposed that again, the deceased was beaten by A.1 as she
questioned A.1, in the presence of A.3 and A.6. The same
was informed to P.W.1 when she attended the college. P.W.1
and others requested A.6, who is elder of A1's family and
requested her to settle the matter and also requested A.2 to
A.5 to take care of the deceased and promise them to give
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anything demanded by them as she was the only female child
in their family.
On 19.02.2012, A.1 beat the deceased with bleeding
injuries in the presence of A.2 to A.6 and sent her away from
the house in the night, despite her request to open doors of
the house. The deceased asked subtenant Lokanadham
P.W.6 and informed them through his mobile phone.
Thereafter, relatives of the deceased went to in-law's house at
Pathapatnam and knocked doors of house of A.1, but they did
not open the doors. On seeing the injuries sustained by the
deceased, they went to police station and informed the police
and requested not to register case but counsel A.1 to A.6.
On the next day, police called A.1 to A.6 and in the presence
of elders, counselled them, who undertook that they would
take care of the deceased and gave assurance that the
incident will not be repeated.
On 22.02.2012, P.W.1 and others sent the deceased at
about 6.30 PM in an auto to her in-laws' house. They asked
the accused to forgive them for their mistakes, if any, and to
take good care of the deceased, and returned back to their
village. P.W.1 received a phone call at about 7.30 PM and
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spoke to the deceased and A.1 that they were having dinner
at that time and that she would call her back after dinner.
At 9.30 PM, he received another phone call from P.W.6 that
there was a dispute going on, in the house of the deceased
and asked them to come there immediately. When P.W.1
asked P.W.6 as to what was actually happening, he informed
that the deceased was burning. Immediately, P.W.1, his
family members and some of their street-mates left to house
of the deceased, and by the time they reached there, they saw
the deceased lying down in her bed room in a burnt condition
and A.1 to A.6 were present there. Mean while, A.1 to A .6
escaped from their house.
P.W.7, who was staying upstairs of the house where the
deceased and her in-laws used to stay, came to P.W.1 and
informed that when he heard shouting, he came down and
opened the bed room and saw the deceased burning and that
A.1 to A.6 were present there and watching without trying to
stop fire. Then, he put water on the deceased and he also
received burn injuries on his hand and his hair was also
burnt, and by using thick cloth like Bontha, he tried to stop
the fire. P.W.8 asked P.W.1 and others to check whether the
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deceased was alive or not, so as to take her to hospital. But,
they found that the deceased was dead. On hearing the
same, they lodged a report in police station.
In cross-examination, P.W.1 categorically stated that
they did not pay anything as on the engagement day. He
further stated that an amount of Rs.70,000/- was deposited
two days after the marriage in the joint account of both A.1
and the deceased.
12. According to P.W.2, in 2009, the accused made a
proposal and by that time, the deceased was studying
Intermediate course. Since she was young, P.W.2 and others
refused for performing her marriage. After some time, the
accused once again made a proposal, and as Pathapatnam is
near to Parlakhemidi, they agreed to the marriage proposal.
In the year 2010, engagement was performed and in the year
2011 marriage was performed at Pathapatnam at the house of
A.1. At the time of the marriage, they gave Rs.3.00 lakhs
dowry and 4 ½ tulas of gold and Rs.50,000/- towards bike.
But, A.1 demanded Rs.70,000/- towards bike and the
amount of Rs.70,000/- was put in fixed deposit in Agri Gold
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in their name. Immediately after the marriage, the deceased
joined her husband. The deceased informed P.W.2 that all
the accused raised a dispute that Ugadi katnam was very less
and dowry given at the time of the marriage was also less. On
that, she asked the deceased to adjust and they gave
sufficiently as per their capacity. The deceased was studying
Degree course in Parlakhemudi by staying at her in-law's
house at Pathapatnam, and in the afternoon, she used to
come to house of P.W.2 for lunch and after taking rest, she
used to go to her in-laws' house. A.1 used to work in Army.
The deceased informed that when A.1 comes for vacation, he
used to raise dispute that she was not beautiful and he
married her for less dowry and that A.5 was more beautiful
than her. Later, A.1 left to join his job and returned to the
village on the occasion of Dasara, and he used to raise a
dispute everyday along with A.2 to A.6. The deceased
informed them that A.1, along with A.2 to A.6, harassed her
that she is not beautiful and she brought less dowry. The
matter was referred to elders, and on questioning, A.1
informed that they the deceased was not cohabiting with him.
Then, P.W.2 and others scolded the deceased. All the
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accused assured them to take good care of the deceased, and
on that, they returned to their village. After completion of
vacation, A.1 left for his job. The deceased was regularly
informing with regard to harassment meted out by the
accused. A.1 did not attend marriage of P.W.4 whereas A.2 to
A.6 attended the marriage. Two days after the marriage, they
dropped the deceased at her in-laws' house. On questioning
A.1 as to why he did not attend the marriage, he stated that
as all the family members did not invite him, he did not
attend the marriage.
On 19th i.e. prior to Sivaratri festival, there was a dispute
between the accused and the deceased, wherein the deceased
was beaten and sent out of the house. The deceased
informed the same through mobile phone of P.W.6, and a
report was lodged to police and the deceased informed the
incidents to SI of Police and asked not to register case but
only counsel them since A.1 is a government employee. After
counselling, A.1 to A.6 assured that they would take good
care of the deceased and signed on some papers. Police
asked them to send the deceased to her in-laws' house after
two days. On 22.02.2012, at about 6.00 PM, P.W.2 sent the
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deceased along others to her in-laws' house. At about 7.00
or 7.30 PM, when P.W.1 called the deceased and enquired,
she stated that they were having dinner. Thereafter, at about
9.00 or 9.30 PM, they received a phone call from P.W.6 that a
dispute with shouting was taking place in the house of the
deceased, and when the same was informed to them, they
rushed to house of the deceased and found the house in
smoke and that the deceased was lying dead with burn
injuries on ground in her bed room. By the time they came
out of the house, A.1 to A.6 absconded.
In cross-examination, P.W.2 concurred with the fact
that she gave Rs.70,000/- towards bike, then A.1 gave money
to her son and asked to deposit the same in Agri Gold, and
the same was deposited in the name of the deceased and A.1.
13. P.W.3 is mother of the deceased. She too concurs
with the versions given by P.Ws.1 and 2.
14. P.W.4 is brother of the deceased. He too narrates the
same version as that of P.Ws.1 and 2. According to P.W.4,
he also states to the extent that a panchayat was held before
village elders, and on questioning A.1, he categorically stated
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that the deceased was not cohabiting with him. Then, the
relatives of the deceased asked them to keep it within
themselves. They also suggested the deceased to cohabit with
A.1. Entire discussion had taken place in the presence of A.6
as she is also one of the village elders of Pathapatnam and it
was requested her to take care of the deceased.
In cross-examination, P.W.4 denies a suggestion made by
the accused that on the request of P.W.4, A.1 got deposited
Rs.20,000/- in the name of the deceased by showing A.2 as
nominee on 22.06.2011 and Rs.35,000/- in the name of the
deceased by showing A.1 as nominee on 04.05.2011 and
Rs.35,000/- in A.1's name by showing the name of the
deceased as nominee on the same day. P.W.4 further stated
that these amounts were deposited by A.1 on his own accord
thinking that the amounts would be doubled within the term
specified. It is P.W.4, who introduced A.1 to the Manager of
Birla Sun Life Insurance, Parlakhemidi branch where he got a
policy.
15. P.W.5 too concurs with the version given by P.Ws.1 to
4.
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16. P.W.6 speaks with regard to the deceased burning in
flames and lying on floor. He further deposed that he saw
A.1 trying to put off flames, and he does not know whether by
that time the deceased was alive or not and there was no
movement. Immediately thereafter, he rushed to the house
and informed the same to the family members of the
deceased.
17. P.W.7 is one of the neighbours of the accused. He is
son of P.W.8. He was aged 17 years by the date of giving
evidence. The learned Sessions Judge put some preliminary
questions and after satisfying with the capacity of the witness
to give rationale answers, she proceeded to record his
evidence. According to P.W.7, at about 9.00 PM on
22.02.2012, when he heard cries in the ground floor,
immediately he rushed down and saw the deceased dead and
burning in their bed room beside the bed. Immediately, he
rushed out to bring water with a tumbler and tried to put off
the flames by pouring water, but flames increased and he
received burn injuries while he was trying to stop the flames.
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According to him, all the accused were present inside the
outside the house.
In cross-examination, he stated that the house of A.1
would be consisting of 5 rooms and he denied a suggestion
that he saw the deceased in 4th room from outside. He
further stated that on the date of the incident, he did not
inform the same to police that he received burn injuries.
According to him, he did not go to the Doctor and he left to
Parlakhemudi on the night of the incident and returned back
to Pathapatnam on 26.02.2012. He did not inform anybody
about the incident. His mother gave him first aid in
Pathapatnam.
18. P.W.8 states that there was a dispute between A.1
and the deceased, and while the deceased used to come to
come upstairs to dry clothes, she informed that it was getting
tough for her and that she was asked by her husband and in-
laws to go away. P.W.8 suggested to adjust and to live
happily. He further deposed that because of the disputes
between the deceased and A.1, a police report was given, and
A.3 and A.5, when came upstairs to dry clothes, informed
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that the deceased filed a case against them and that A.1
would lose his job and that they would see once she returns
back and they were angry with the deceased. After two days,
at about 6.00 PM, the deceased was brought to her in-laws'
house by her mother and two brothers, and all of them
advised them to live happily without any disputes. After
cooking dinner to his children, P.W.8 left for her friend's
house to bring her daughter from tuition. She heard cries
from the house of A.3 and rushed there, and saw her son
(P.W.7) trying to put off flames. P.W.8 saw only legs of the
deceased and since she was scared, she took away her son.
P.W.7 received burn injuries on his hand and hair while
trying to put off the flames. P.W.8 further states that she was
examined by police after four days of the incident.
19. P.W.14 was working as Sub Inspector of Police,
Pathapatnam police station at the relevant point of time of the
incident. According to him, on 19.02.2012 at about 10.00
PM, the deceased lodged a report and asked him not to
register a case and requested to conduct counselling in the
presence of elders on the next day. P.W.14 made a G.D.
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entry with regard to the said report and asked the deceased
and her family members to come to police station along with
respective elders. On the next day, all of them discussed in
police station and reached a compromise, and he also
counselled them. They executed a compromise deed in police
station. Later, P.W.14 took a bind over from all of them and
made a G.D. entry in that regard. Ex.P7 is the report dated
19.12.2015 given by the deceased.
20. P.W.17, Civil Assistant Surgeon, Area Hospital,
Palakonda, on receipt of requisition of police, conducted
autopsy on the dead body of the deceased on 23.02.2012
along with P.W.18. According to her, the death occurred due
to cardio respiratory arrest. Ex.P13 is the postmortem
examination report. Ex.P14 is the RFSL report. As per the
RFSL report, on item Nos.1 and 2, kerosene (hydro carbons)
was found in the stomach. In her final opinion, she opined
that the deceased died of cardio respiratory arrest due to
burns and that the patient was not pregnant at the time of
autopsy and the death is not due to toxins or poisons, but it
is due to antemortem burns. Ex.P15 is the final opinion.
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CRL.A.NO.340 OF 2016 & 537 OF 2016
21. P.W.19, who worked as Civil Assistant Surgeon, CHC,
Pathapatnam, deposed that on 27.02.2012, he examined A.1
on receipt of requisition from police and found multiple small
vesicle and boils present about 2 x 2 cms noted at right hand
and left index finger, right side chest dark coloured and some
ruptured and the age of the wound is about 3 to 5 days. He
opined that the injury is simple in nature. Ex.P16 is the
wound certificate issued by him.
22. On a conspectus of the entire evidence on record goes
to show that death of the deceased is because of the cardio
respiratory arrest due to burns. It is evident from the
evidence on record that there were disputes between the
accused and the deceased, and A.1 was complaining that the
deceased was not cohabiting with him. The prosecution has
not come out with the genesis of the occurrence of the
incident. Motive part varied from time to time. Initially,
according to the prosecution case, the accused proposed for
the marriage of the deceased with A.1. But, since the
deceased was too young and as she was studying
Intermediate course, her elders did not accept for the
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CRL.A.NO.340 OF 2016 & 537 OF 2016
marriage proposal. After more than a year, once again, the
accused came up with the proposal of the marriage of the
deceased with A.1. Since the accused were staying nearby
their village where only a bridge separates both the villages,
elders of the deceased accepted for the marriage proposal.
23. According to the prosecution case, the deceased was
harassed by the accused for the reason that the dowry which
was given to them was not sufficient. On the other hand,
from the evidence of prosecution witnesses, it is clear that the
amounts that were given to A.1 were got deposited in the
name of the deceased by showing A.2 as nominee in the
deposit for Rs.20,000/- on 22.06.2011 and by showing name
of A.1 as nominee in the deposit for Rs.35,000/- on
04.05.2011. The amount of Rs.70,000/- which was given to
the accused for purchase of a bike, was deposited in the joint
account of the deceased and A.1 in Agri Gold. If really there
is harassment that is meted out to the deceased on the
ground that there was less dowry, question of the accused
depositing these amounts in the name of the deceased and
they being shown as nominees would not arise. The other
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CRL.A.NO.340 OF 2016 & 537 OF 2016
aspect of the motive that is shown in the prosecution case is
that the relatives of the deceased called for a panchayat
before elders. In the said panchayat held, A.1 categorically
stated that the deceased was not cohabiting with him.
According to the evidence of prosecution witnesses, the
deceased was admonished and asked to cohabit with A.1.
Therefore, in that regard, a dispute was going on between the
accused and the deceased.
24. The other circumstance where the prosecution has
come up with regard to the motive is that since the date of
marriage, A.1 was abusing the deceased as she was not good
looking and A.5 was looking better than the deceased. The
deceased was also suspecting that there was illicit
relationship between A.1 and A.5, who is wife of his brother
A.4. One of the factors that was brought up by the
prosecution is that the marriage of P.W.4 was performed
wherein A.2 to A.6 attended the function, whereas A.1 did not
attend the marriage and stayed back at Pathapatnam. On
coming to know about the same, A.5 left the marriage and
went to Pathapatnam. According to the prosecution version,
certain phone call recordings were recorded between A.5 and
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CRL.A.NO.340 OF 2016 & 537 OF 2016
A.1 and the same were displayed before P.W.1. According to
P.W.1, the language was so vulgar and unspeakable.
Admittedly, no such audio recordings were seized by the
prosecution. Except the said vague version that there was
illicit intimacy between A.1 and A.5, there is no material to
substantiate the said version. Therefore, on a perusal of the
evidence on record, it is difficult to fix motive for the accused
to cause death of the deceased.
25. In order to attract an offence punishable under Section
304B IPC, the following five conditions have to be established
by the prosecution:
Firstly: The death of a woman should be caused by any
burns or bodily injury otherwise than under normal
circumstances;
Secondly: Such death should have occurred within
seven years of her marriage;
Thirdly: She must have been subjected to cruelty or
harassment by her husband or any relative of her
husband;
Fourthly: Such cruelty or harassment should be for or
in connection with demand of dowry and
Fifthly: Such cruelty or harassment is shown to have
been meted out to the woman soon before her death.
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CRL.A.NO.340 OF 2016 & 537 OF 2016
26. Section 113B of the Indian Evidence Act, 1872 enjoins
a statutory presumption as to dowry death. When the
question is whether a person has committed the dowry death
of a woman or not, once it is proved by the prosecution that
the deceased was subjected to cruelty or harassment for, or
in connection with, any demand of dowry soon before her
death, presumption under Section 113B of the Indian
Evidence Act, 1872 can be drawn that such person had
caused the dowry death. It means, the presumption under
Section 113 B of the Indian Evidence Act, 1872 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.
27. The presumption as to dowry death would get activated
only upon proof of the fact that the deceased woman was
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CRL.A.NO.340 OF 2016 & 537 OF 2016
subjected to cruelty or harassment for or in connection with
any demand for dowry by the accused and that too in the
reasonable contiguity of death. Such a proof is thus the
legislatively mandated pre-requisite to invoke the otherwise
statutorily ordained presumption of commission of the offence
of dowry death by the person charged therewith.
28. Apparently, basing on the evidence on record, there is
no harassment with regard to demand of dowry soon before
death of the deceased. None of the prosecution witnesses
came up with the version that the deceased was beaten or
harassed for want of more dowry. Apart from the same, it is
the case of the prosecution witnesses that the amounts which
were given at the time of the marriage between the deceased
and A.1, were deposited in the name of the deceased or in the
joint account of both the deceased and A.1.
29. In the case on hand, the allegation is that at the time
of marriage, the deceased was not good looking and A.5 was
better than that of the deceased and the amounts which were
paid at the time of marriage to the accused were not
sufficient. Except the said accusation, there is no other
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CRL.A.NO.340 OF 2016 & 537 OF 2016
evidence to connect the accused with the crime that they
demanded any monies from the deceased or her relatives. It
is pertinent to mention here that there should be nexus
between the demand of dowry and to the death of the
deceased. Going by the evidence on record, there is
absolutely no evidence to show that soon before her death,
the deceased was subjected to cruelty or harassment for want
of more dowry.
30. The learned Assistant Public Prosecutor relied upon
Ex.P7-report given by the deceased to P.W.14 dated
19.02.2012. According to him, Ex.P7 would suffice to bring
the accused within the purview of the offence punishable
under Section 304B IPC. A perusal of Ex.P7 goes to show
that the said report was given by the deceased on 19.02.2012
at 10.00 PM and except making G.D. entry, the same has not
been registered as an FIR. It is apparent on the record that
the prosecution witnesses along with the deceased gave the
report to police, but at the same time, they requested the
police not to register a case. By virtue of the same, it is
apparent that their intention was to bring the accused to
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CRL.A.NO.340 OF 2016 & 537 OF 2016
police station and to counsel them. Accordingly, P.W.14, on
receipt of the report, made a G.D. entry and called the
accused to police station on the next day, and both the
accused and the prosecution witnesses had negotiations and
compromised the issues. Basing on the said compromise,
P.W.14 made a G.D. entry and suggested that the deceased
be dropped at the house of the accused after lapse of two
days.
31. The learned Assistant Public Prosecutor, by relying on
the recitals in the complaint that since last Dasara, the
accused started harassing asking additional dowry,
submitted that there was a demand for dowry. This Court
perused Ex.P7-complaint given by the deceased. There is a
vague and bald sentence that the accused were demanding
dowry since last Dasara. Except the said statement, there is
no other recital in connection with demand of dowry. If really
the accused were demanding dowry and in connection with
that, the deceased was subjected to cruelty or harassment,
question of the prosecution witnesses, giving the complaint to
police and requesting not to register the same would not
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CRL.A.NO.340 OF 2016 & 537 OF 2016
arise. By virtue of the same, the prosecution party intended to
threaten the accused by giving the report and at the same
time, requesting the police not to register the case would
speak volumes. By virtue of the act of the prosecution
witnesses, it can be safely inferred that they wanted to put
sword on the head of the accused hanging in the form of
complaint, so as to bring them to their terms. Apart from the
same, the said complaint has not been converted into FIR and
the accused would not have the benefit of cross-examining
with the recitals that have been made by the deceased in
Ex.P7. Admittedly, Ex.P7 does not relate to the cause of
death of the deceased so as to bring the same within the
purview of a statement under Section 32 of the Indian
Evidence Act, 1872. It only alleges some harassment. Since
the parties entered into compromise after counselling, the
report which has been given by the deceased would become
insignificant, and much importance cannot be attached to the
said report. Apart from that, there is no other evidence to
show that the deceased was harassed by the accused in
connection with demand of dowry.
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CRL.A.NO.340 OF 2016 & 537 OF 2016
32. Learned senior counsel appearing for A.1 relied on a
decision in Charan Singh alias Charanjit Singh v. State of
Uttarakhand, 1wherein it is held thus: (paragraphs 16, 17, 20,
21 and 23).
"16. The cruelty or harassment has to be soon before the
death. In his evidence, Pratap Singh (PW-1), father of the
deceased stated that two months after the marriage his
daughter came to the parental home stating that the
appellant was demanding motorcycle, however, she was
sent back. Thereafter, she again came and apprised him
that the demand of motorcycle was being pressed by the
appellant. Besides motorcycle, land was also demanded.
There is nothing in the statement that any such demand
was raised immediately before the death as the incidents
sought to be referred to are quite old. He admitted in his
cross examination that at the time of funeral, his mother-
in-law and two brothers-in-law were present. However,
they were threatened not to lodge the complaint. Balbir
Singh (PW-2), maternal uncle of the deceased, merely
stated that at the time of marriage sufficient dowry was
given by the father of the deceased. However, later he
heard that the appellant had demanded the motorcycle.
In his cross-examination, he admitted that he was living
at the distance of about one furlong from the house of the
appellant. No dowry was demanded at the time of
marriage of the deceased. He did not state that the
2023 SCC OnLine SC 454
KSRJ & SRKJ
CRL.A.NO.340 OF 2016 & 537 OF 2016
deceased ever shared with him about the demand of
dowry or any harassment on account of non-fulfilment
thereof though he was living close to the matrimonial
house of the deceased.
17. Beero Bai (PW-3), the maternal grandmother of the
deceased, stated that her house is located at a distance of
about one mile from the house of the appellant. She used
to go to the house of the deceased. The deceased was
being treated badly. She was not allowed to go to her
parental house. The deceased informed her that the
appellant used to ask her to bring motorcycle from her
maternal grandmother. After the death of her husband in
February 1995, the appellant asked the deceased to get
land from her maternal grandmother. On a demand made
to her, she replied in negative. However, in her cross-
examination, she stated that the land was not demanded
from her. Even in her statement, there is nothing to
suggest that soon before the death, any cruelty or
harassment was made to the deceased, either by the
appellant or his family members. All what is stated is
regarding the demand. There are no details of any cruelty
or harassment, though this witness was living about a
kilometre from the house of the deceased and is her
maternal grandmother.
20. Babban Singh (PW-6), Circle Officer, Faridpur was
the Investigating Officer. In his examination-in-chief, he
admitted that he recorded the statement of Jagir Singh.
He is the person who, as per the complaint made to the
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CRL.A.NO.340 OF 2016 & 537 OF 2016
police, had informed the father of the deceased about the
death of his daughter. However, he was not produced in
evidence.
21. In the aforesaid evidence led by the prosecution,
none of the witnesses stated about the cruelty or
harassment to the deceased by the appellant or any of his
family members on account of demand of dowry soon
before the death or otherwise. Rather harassment has not
been narrated by anyone. It is only certain oral
averments regarding demand of motorcycle and land
which is also much prior to the incident. The aforesaid
evidence led by the prosecution does not fulfil the pre-
requisites to invoke presumption under Section 304B IPC
or Section 113B of the Indian Evidence Act. Even the
ingredients of Section 498A IPC are not made out for the
same reason as there is no evidence of cruelty and
harassment to the deceased soon before her death.
23. On a collective appreciation of the evidence led by the
prosecution, we are of the considered view that the
prerequisites to raise presumption under Section 304B
IPC and Section 113B of the Indian Evidence Act having
not been fulfilled, the conviction of the appellant cannot
be justified. Mere death of the deceased being unnatural
in the matrimonial home within seven years of marriage
will not be sufficient to convict the accused under Section
304B and 498A IPC. The cause of death as such is not
known."
KSRJ & SRKJ
CRL.A.NO.340 OF 2016 & 537 OF 2016
He also relied on a decision in Baijnath and others v.
State of Madhya Pradesh2 (paragraphs 33, 34, 35 and 36)
"33. Tested on the judicially adumbrated parameters as
above, we are of the unhesitant opinion that the
prosecution has failed to prove beyond reasonable doubt,
cruelty or harassment to the deceased for or in
connection with any demand for dowry as contemplated
in either of the two provisions of the Code under which
the accused persons had been charged. Noticeably, the
alleged demand centres around a motorcycle, which as
the evidence of the prosecution witnesses would evince,
admittedly did not surface at the time of finalisation of
the marriage. PW 5, the mother of the deceased has even
conceded that there was no dowry demand at that stage.
According to her, when the husband (who is dead) had
insisted for a motorcycle, thereafter he was assured that
he would be provided with the same, finances permitting.
Noticeably again, the demand, as sought to be projected
by the prosecution, if accepted to be true had lingered for
almost two years. Yet admittedly, no complaint was made
thereof to anyone, far less the police. Apart from the
general allegations in the same tone ingeminated with
parrot-like similarity by the prosecution witnesses, the
allegation of cruelty and harassment to the deceased is
founded on the confidential communications by her to
her parents in particular and is not supported by any
other quarter.
(2017) 1 SCC 101
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CRL.A.NO.340 OF 2016 & 537 OF 2016
34. To the contrary, the evidence of the defence witnesses
is consistent to the effect that no demand as imputed had
ever been made as the family of the husband was
adequately well-off and further Appellant 1 Baijnath had
been living separately from before the marriage.
According to them there was no occasion for any
quarrel/confrontation or unpleasantness in the family
qua this issue. Significant is also the testimony of DW 3,
the sister-in-law of the deceased who indicated
abandonment of the matrimonial home by her with the
son of Thoran Singh, the Sarpanch of the village for
which she understandably had incurred the displeasure
of the in-laws. DW 4, the father of DW 3 who had given
his daughter in marriage in the same family had deposed
that he did not ever encounter any demand for dowry.
The testimony of the prosecution witnesses PW 3 and PW
7 fully consolidate the defence version.
35. A cumulative consideration of the overall evidence on
the facet of dowry, leaves us unconvinced about the
truthfulness of the charge qua the accused persons. The
prosecution in our estimate, has failed to prove this
indispensable component of the two offences beyond
reasonable doubt. The factum of unnatural death in the
matrimonial home and that too within seven years of
marriage therefore is thus ipso facto not sufficient to
bring home the charge under Sections 304-B and 498-A
of the Code against them."
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CRL.A.NO.340 OF 2016 & 537 OF 2016
He also placed reliance on a decision in Major Singh &
another v. State of Punjab3 (paragraph 16)
"16. To attract conviction under Section 304-B IPC, the
prosecution should adduce evidence to show that "soon
before her death", the deceased was subjected to cruelty
or harassment. There must always be proximate and live
link between the effects of cruelty based on dowry
demand and the death concerned. In Hira Lal v. State
(Govt. of NCT of Delhi) [(2003) 8 SCC 80 : 2003 SCC (Cri)
2016 : AIR 2003 SC 2865] it was observed as under :
(SCC pp. 86-87, para 9)
"9. 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. The prosecution
has to rule out the possibility of a natural or accidental
death so as to bring it within the purview of '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. The 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 the prosecution.
'Soon before' is a relative term and it would depend upon
the circumstances of each case and no straitjacket
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
(2015) 5 SCC 201
KSRJ & SRKJ
CRL.A.NO.340 OF 2016 & 537 OF 2016
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 the expression
'soon before' used in Section 114 Illustration (a) of the
Evidence Act 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 or has received the
goods knowing them to be stolen, unless he can account
for their 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 cruelty
or harassment concerned 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 death concerned. If the alleged incident of cruelty is
remote in time and has become stale enough not to
disturb the mental equilibrium of the woman concerned,
it would be of no consequence.""
33. This Court, on a perusal of the evidence on record, is of
the opinion that marriage of the deceased was performed with
A.1 on 25.03.2011. Since the deceased was not cohabiting
with A.1, there were disputes between the couple. In
connection with that, the prosecution party called for a
panchayat which was held in the midst of elders, wherein A.1
categorically stated that the deceased was not cohabiting with
him. The panchayat elders and relatives of the deceased
admonished the deceased and A.1 that this is a matter to be
KSRJ & SRKJ
CRL.A.NO.340 OF 2016 & 537 OF 2016
settled between the family. At the same time, brothers of the
deceased also suggested the deceased to cohabit with A.1.
34. In his examination under Section 313 CrPC, the accused
categorically stated that as the deceased was beautiful, the
accused, without taking dowry, married her. He stated that
the deceased was not interested in getting married with him
and the same was informed to the in-laws of A.1 also. On the
date of the incident, she was forcibly brought and dropped in
the house of A.1, and the deceased, without there being any
interest, committed suicide. The said version given by the
accused read in conjunction with the evidence on record goes
to show that right from the beginning, A.1 was interested in
getting married with the deceased. Accordingly, he sent a
proposal for marriage. But, the elders of the deceased
refused the proposal as she was too young at that time.
Thereafter, after lapse of one year, once again, a proposal was
made by the accused to the deceased for marriage. At the
behest of parents of the deceased and the brothers, on the
pretext that the accused live nearby their village, they agreed
for the marriage of the deceased with A.1. It is quite evident
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CRL.A.NO.340 OF 2016 & 537 OF 2016
from the evidence on record that the amounts which have
been paid at the time of marriage, were converted into
deposits by the accused either in the name of the deceased,
the accused being the nominee, and vice versa. Therefore, it
can be safely inferred that the dispute that arose between the
accused and the deceased is in connection with the fact that
the deceased was refusing to cohabit with the accused. The
dispute arose time and again and the same led to holding of
panchayat by elders. Even in the panchayat, A.1 categorically
stated that the deceased was not cohabiting with him. After
that, both parties were chastised and the deceased was
dropped at the house of the accused. On 19.02.2012, a
quarrel ensued between the accused and the deceased, which
led to filing of a report Ex.P7 to police. But, at the same time,
the same has not been registered as an FIR. On the next day,
after negotiations, the parties entered into compromise and
by virtue of the same, the said report Ex.P7 was not
registered as FIR. From the aforesaid discussion, this Court
is of the opinion that the prosecution failed to establish
beyond reasonable doubt that the deceased was subjected to
cruelty or harassment by her husband or any of the relatives
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CRL.A.NO.340 OF 2016 & 537 OF 2016
of her husband, in connection with demand of dowry soon
before her death. Therefore, the presumption under Section
113B of the Indian Evidence Act, 1872 cannot be drawn in the
case on hand. The learned Sessions Judge has not
considered the evidence on record in right perspective and
erred in convicting and sentencing the appellant/A.1.
35. In view of the foregoing discussion, this Court is of the
opinion that the conviction and sentence recorded by the
learned Sessions Judge against the appellant/A.1 for the
offences punishable under Sections 304B and 498A IPC are
not sustainable in the eye of law. As a consequence, Criminal
Appeal No.537 of 2016 is devoid of merits and is liable to be
dismissed.
36. In the result, the Criminal Appeal No.340 of 2016 is
allowed, setting aside the convictions and sentences recorded
by the learned I Additional District and Sessions Judge,
Srikakulam in the judgment dated 11.04.2016 in Sessions
Case No.171 of 2013. The appellant/A.1 is found not guilty
of the charges under Sections 304B and 498A IPC and is
accordingly acquitted of the said charges and is set at liberty.
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CRL.A.NO.340 OF 2016 & 537 OF 2016
Fine amount, if any, paid by him shall be refunded to him.
Criminal Appeal No.537 of 2016 is dismissed.
-----------------------------------------
JUSTICE K.SURESH REDDY
------------------------------------------------
JUSTICE K.SREENIVASA REDDY
06.11.2024
DRK
KSRJ & SRKJ
CRL.A.NO.340 OF 2016 & 537 OF 2016
THE HON'BLE SRI JUSTICE K.SURESH REDDY
AND
THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY
COMMON JUDGMENT
IN
CRIMINAL APPEAL Nos.340 OF 2016 & 537 of 2016
(per the Hon'ble Sri Justice K.Sreenivasa Reddy)
06.11.2024
DRK
