Mudavath Jyothi vs The State Of Telangana
2021 Latest Caselaw 1467 Tel

                HON'BLE SRI JUSTICE K.LAKSHMAN

                CRIMINAL PETITION No.6427 OF 2019

ORDER:

This Criminal Petition under Section 482 of Cr.P.C. is filed

seeking to quash the proceedings in P.R.C.No.9 of 2019 pending on

the file of the Principal Junior Civil Judge, Mahaboob Nagar. The

petitioners herein are accused Nos.4 and 5. The offences alleged

against them are under Sections 302, 304-B, 498-A of IPC, 109 read

with Section 34 of IPC and Sections 3 and 4 of the Dowry Prohibition

Act, 1961.

2. The allegations against the petitioners herein, as per the charge

sheet, are as follows.

A1 is the husband of the deceased. The 2ndpetitioner/A5 is elder

brother of A1 and the 1st petitioner/A4 is wife of the 2nd petitioner-A5.

The marriage of deceased with A1 was performed on 25.05.2011 and

it is an arranged marriage. A1 and deceased stayed happily for one

year. Thereafter, according to the de facto complainant, the father of

the deceased, all the accused have started harassing the deceased both

mentally and physically and demanded additional dowry. A6 is the

mediator of the said marriage. On 10-5-2014, there was an altercation

between the deceased and A1 regarding the said additional dowry. A1

took the deceased into bath room and forcibly made her to consume

acid with an intention to kill her. She was shifted to SVS hospital and

thereafter, to Apollo hospital and again, they have shifted to Susrutha 2 KL,J Crl.P. No.6427 of 2019

Hospital, Mahabubnagar, against the medical advice of Apollo

Hospital. On the intervening night of 19/20.7.2014 around 00.15

hours, the deceased died due to acid injuries.

3. The de facto complainant-father of the deceased lodged a

complaint with WPS, Mahabubnagar on 19.7.2014. On receipt of the

said complaint, the police have initially registered a case in Cr.No.14

of 2014 for the offences under Sections 498-A, 307 IPC and Sections

3 and 4 of the Dowry Prohibition Act. Thereafter, they have added

Sections 304-B, 302 IPC and Section 109 read with Section 34 IPC to

the existing Sections of 498-A of IPC.

4. The police, after completion of investigation, laid charge sheet

against the petitioners herein vide P.R.C. No.9 of 2019 for the

aforesaid offences.

5. Learned counsel appearing for the petitioners would submit that

there is abnormal delay of 69 days in lodging the complaint. The

contents of the complaint and charge sheet lacks the ingredients of

offences alleged against the petitioners herein. The 2nd petitioner-A5

is a Judicial Officer and he was posted at Mancherial and thereafter,

he was posted at Nizamabad at the relevant point of time. The 1st

petitioner-A4, wife of the 2nd petitioner-A5, is also a Homeopathy

Doctor and therefore, the petitioners are nothing to do with the marital

life of A1 and deceased. There are no allegations, much less specific

allegations, against the petitioners. The medical evidence is also not 3 KL,J Crl.P. No.6427 of 2019

supported. The Investigating Officer in Cr.No.14 of 2014 did not

consider the statement of LW23 i.e., Parshiya Srinivasa Rao, Police

Constable, Banjara Hills Police Station, Hyderabad, who recorded the

statement of the deceased under Section 161 Cr.P.C. The Investigating

Officer did not consider the attendance particulars of the 2nd

petitioner-A5 though the same was collected by him. Without

conducting proper investigation in accordance with law and also

without considering the statements of the witnesses properly, the

Investigating Officer has laid the charge sheet against the petitioners

herein, at the instance of the de facto complainant, and LW11, a

Police Constable. There is no eye witness to the entire incident.

None of the witnesses spoke about the alleged harassment of the

deceased by the petitioners herein. Even then just to harass the

petitioners herein, the de facto complainant with the help of LW11,

his co-brother, implicated the entire family of the petitioners herein.

6. Learned counsel for the petitioners would submit that though

the alleged incident took place on 10.05.2014, the complaint was

lodged on 19.7.2014 at 8.00 P.M with delay from the actual date of

incident. Neither the parents nor relatives of the deceased bothered to

lodge a complaint, but, surprisingly, on the date of death of the

deceased, the de facto complainant, father of the deceased, has lodged

a complaint. Dying declaration of the deceased was not recorded

since there was no crime registered with regard to the said incident.

Thus, the important and vital piece of evidence was missing in the 4 KL,J Crl.P. No.6427 of 2019

entire investigation. Learned counsel would further submit that the

complaint was lodged with WPS Mahabubnagar Police Station, which

in turn, registered a case in Cr.No.14 of 2014 for the offences under

Sections 498-A, 307 of IPC and Sections 3 and 4 of the Dowry

Prohibition Act. Even after adding Sections 302 and 304-B of IPC,

WPS, Mahabubnagar Police Station, has not transferred the

investigation to the concerned jurisdictional Police Station. Post-

Mortem was conducted on 20-07-2014 from 3.00 P.M to 4.30 P.M.

The said Post-Mortem report clearly shows that the approximate time

of death of the deceased was about 18 to 20 hours prior to Post-

Mortem, which would be on 19-7-2014 at about 7.00 PM to 9.00 P.M.

Thus, the FIR was registered after the death of the deceased under

Sections 307 IPC, 498-A IPC and Sections 3 and 4 of the Dowry

Prohibition Act. In the charge sheet, it is mentioned that the

Investigating Officer has seized the acid bottle from the scene of

offence from the residential house of the de facto complainant after

almost 70 days from the date of the alleged incident. The elder

brother of A1 paid some amount towards medical expenses of the

deceased and in proof of the same, he has filed his bank statement.

7. Learned counsel for the petitioners would submit that the

contents of the charge sheet clearly shows that there are no

allegations, much less serious allegations, levelled against the

petitioners herein and that the de facto complainant in collusion with

LW11 implicated the petitioners herein in a false case. The 2nd 5 KL,J Crl.P. No.6427 of 2019

petitioner-A5 is a Judicial Officer and 1st petitioner-A4 is a

Homeopathy Doctor. Continuation of criminal proceedings in PRC

would cause great prejudice to the petitioners herein. With the

aforesaid submissions, learned counsel sought to quash the

proceedings in PRC against the petitioners herein.

8. Despite of service, there is no representation on behalf of the

2ndrespondent.

9. Learned Public Prosecutor, on instructions, would submit that

there are allegations against A1. The date, time and place are

mentioned. As per the contents of the charge sheet, the allegations

with regard to the offence under Section 302 of IPC are only against

A1. Since the contents of the complaint constitute a cognizable

offence, the police have registered the above said crime and after

conducting the investigation laid charge sheet against the petitioners.

The delay in lodging the complaint has no explanation. There are

several triable issues. The petitioners have to face the trial and prove

their innocence, instead they have approached this Court by way of

filing the present criminal petition. With the above submissions,

learned Public Prosecutor sought to dismiss the present petition.

10. The above said rival submissions would reveal that the alleged

incident of consumption of acid took place on 10.5.2014 at about

20.30 hours. The deceased died on the intervening night of

19/20.7.2014 at about 00.15 hours. The 2nd respondent has lodged the 6 KL,J Crl.P. No.6427 of 2019

present complaint on 19.7.2014 at about 20.00 hours. The second

respondent, father of the deceased, lodged the present complaint after

69 days of the actual date of incident. The only explanation offered

by the 2nd respondent - de facto complainant in the complaint is as

follows:

"When LW1 was intending to report the matter to the police, A1 to A6 prevented LW1 from proceeding with the police station, assuring him that they will take care and they will bear all the medical expenses and they will not harass in future, upon which, LW1 who was influenced by A1 to A6 did not file the complaint immediately at the police station."

11. Except the same, there is no explanation, much less

plausible/satisfactory explanation, offered by the 2nd petitioner-de

facto complainant and also by the prosecution about the said abnormal

delay of 69 days in lodging the complaint. It is also relevant to note

that the 2nd respondent-de facto complainant is working as a Lineman

in BSNL Department. LW11, maternal uncle (mother sister's

husband) of the deceased is a Police Constable, LW10, cousin of the

deceased, is a student. Thus, the deceased family is an educated

family. They are aware of the consequences of non-lodging of

complaint immediately and also the delay caused in lodging the

complaint.

12. According to the de facto complainant, A1, demanded

additional dowry, forcibly took the deceased to the wash room, made 7 KL,J Crl.P. No.6427 of 2019

her to consume acid of about 50 ml. They have shifted the deceased to

the SVS Hospital and on the advice of the Doctors, they have shifted

the deceased to Apollo hospital on 11.5.2014 at about 7.20 am.

Thereafter, she was discharged from Apollo hospital on 22.05.2014

against medical advice and admitted in Susrutha Hospital,

Mahabubnagar. Again, the deceased was shifted to Apollo hospital on

26.5.2014 on the ground that the condition of the deceased was

critical. Thereafter, on 3.7.2014, the 2ndrespondent-de facto

complainant has shifted the deceased to Mahabubnagar against the

medical advice on the ground that he is incurring huge amount

towards medical expenses and the accused did not pay the same.

13. The said facts would reveal that the deceased was shifted to

Apollo hospital on 11.5.2014on the ground that her condition was

serious. She was discharged from Apollo Hospital on 22.5.2014 and

thereafter, shifted to Susrutha Hospital on 23-05-2014 and again, she

was shifted to Apollo on 26.5.2014 on the ground that her condition

was critical. It is trite to note that the 2nd respondent on the day of

death of the deceased lodged a complaint with WPS, Mahabubnagar

only on 19.7.2014. Thus, there is abnormal delay of 69 days in

lodging the complaint against the petitioners.

14. Referring to the contents of the complaint, Post-Mortem

examination report, and contents of the charge sheet, learned counsel

for the petitioners would submit that the deceased died on 19.7.2014

in the intervening night of 19/20.7.2014 at 00.15 hours and whereas 8 KL,J Crl.P. No.6427 of 2019

the 2nd respondent-de facto complainant has lodged the complaint on

19.7.2014 at 20.30 hours. Learned counsel would further submit that

the Post-Mortem examination report would clearly reveal that

approximate time of death of the deceased is 18 to 20 hours prior to

Post-Mortem examination, which would be on 19.7.2014 at about

7.00 to 9.00 PM, which would mean, by the said time, the deceased

died. But, surprisingly, FIR was registered for the offences under

Sections 307 IPC and 498-A IPC and Sections 3and 4 of the Dowry

Prohibition Act.

15. It is settled principle of law that delay in lodging the complaint

per se is not a ground to quash the proceedings in a criminal case. At

the same time, it cannot be ignored. There should be some

explanation, much less, logical/satisfactory explanation by the de

facto complainant/ prosecution with regard to the delay in lodging the

complaint.

16. In Saheb Rao v. State of Maharashtra1, the Hon'ble Supreme

Court held that there should be satisfactory/logical explanation by the

prosecution for the delay caused in lodging the complaint.

17. In State of A.P v. M. Madhusudhana Rao2, the Apex Court

while dealing with the facts of the said case, where there was delay of

one month in lodging the complaint, held that the said delay is

embellishment and exaggeration, creation of afterthought. In the said

. (2006) 9 SCC 794

. 2008 (14) SCC 118 9 KL,J Crl.P. No.6427 of 2019

case, FIR was lodged after one month of forcible consumption of

poison. A delayed report not only gets bereft of the advantage

spontaneity, the danger of the introduction of coloured version,

exaggerated account of the incident or a concocted story as a result of

deliberations and consultations also creeps in, casting a serious doubt

on its veracity.

18. It is essential that the delay in lodging the report should be

satisfactorily explained. In the said case, the incident was occurred on

19.04.1996 and FIR was lodged on 22.05.1996. While dealing with

the said facts of the case, the Apex Court held that no explanation,

circumstances raises considerable doubt regarding the genuineness of

the complaint and the veracity of the evidence of the complainant.

Therefore, it is unsafe and unreliable.

19. In view of the law laid down in the judgments referred to supra,

coming to the facts on hand, it is relevant to note that in the present

case, the alleged incident of forcible consumption of acid was taken

place on 10.5.2014. The second respondent-de facto complainant has

lodged the complaint on 19.7.2014 at about 20.30 hours. Thus, there is

delay of 69 days. The only explanation offered by the 2nd respondent

is that the accused promised that they will bear the medical expenses

and they will look after the deceased and they will not harass the

deceased in future. Under the said influence, he has not given the

complaint immediately.

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                                                        Crl.P. No.6427 of 2019

20. As discussed supra, the second respondent-de facto complainant

(LW1) is father of the deceased and is working as a Lineman in

BSNL. LW11 is maternal uncle of the deceased and co-brother of the

second respondent-de facto complainant, working as a Police

Constable. LW10, cousin of the deceased, is also a student. All of

them are educated people. Even then, they have not lodged the

complaint at the earliest point of time i.e., immediately after the

incident. Thus, there is abnormal delay of 69 days in lodging the

complaint by the 2nd respondent. According to this Court, the above

said explanation offered by the 2ndrespondent-de facto complainant is

not satisfactory. The said explanation is not plausible and, therefore, it

creates a doubt. It is also relevant to note that there is no evidence to

the effect that accused have promised the de facto complainant that

they will bear the medical expenses, take care of the deceased welfare

without any harassment.

21. It is also relevant to note that A3, mother of A1 specifically

made requests/representations to the Deputy Inspector General of

Police, Hyderabad Range, Hyderabad on 1.2.2017, Superintendent of

Police, Mahabubnagar on 13.4.2015, Inspector General of Police,

Hyderabad Region, Hyderabad, on 28.3.2016, Director General of

Police, Hyderabad, on 12.09.2017 to conduct investigation by

jurisdictional police in proper lines. She has specifically narrated the

entire facts in the said representations. Copies of the said

representations were filed in the present case. A perusal of the same 11 KL,J Crl.P. No.6427 of 2019

would reveal that they were served on the above said Officials. Even

then, without considering the said requests/representations, according

to the learned counsel for the petitioners, WPS Mahabubnagar lacks

the jurisdiction and they have added the section of law i.e., Sections

302 IPC and 304-B IPC. Even then, after adding the said sections,

WPS had conducted investigation instead of transferring the case to

the concerned jurisdictional Police Station. Thus, the entire

investigation conducted by the Investigating Officer is in violation of

procedure laid down under Cr.P.C.

22. In Ashok v. State of Maharashtra3, the Apex Court held as

under:

"Keeping the above points in mine, we are of the opinion that in the present case the prosecution has failed to discharge its initial burden itself. Therefore, the question of burden of proof shifting to the accused to explain the happening of incidents does not arise. First and foremost, the delay of one month in filing FIR at the very face of it makes the entire case of the prosecution as concocted and an afterthought. There is no explanation as to why did the parents of Shubhangi not make any complaint or FIR immediately after the recovery of her dead body. It is surprising that nowhere in the case of the prosecution this delay has been explained."

    . (2015) 2 SCC (Cri.) 636
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                                                     Crl.P. No.6427 of 2019

23. In Ramaiah @ Ramu v. State of Karnataka4, the Apex Court

held that the delay in lodging FIR, per se, may not render prosecution

case doubtful as there may be various reasons, in such, prosecution

needs to offer some explanation for the delay. Thus, in the present

case, there is abnormal delay of 69 days, which would be explained by

the prosecution. The said fact creates a doubt about lodging of the

complaint immediately after the alleged incident of forcible

consumption of acid against the accused.

24. As stated above, the marriage of the deceased with A1 was

performed on 25.05.2011. Even as per the complaint, they have led

happy marital life for about one year. They have blessed with a son

on 20.4.2012. According to the second respondent, the accused have

started demanding additional dowry thereafter. The allegation in the

complaint is that on the eve of Diwali, the accused demanded

additional dowry of Rs.4,00,000/- for purchase of new car and the de

facto complainant paid an amount of Rs.1,00,000/-. Again on

8.5.2014, the deceased came to the house of the de facto complainant

to attend marriage ceremony of relatives. There was demand of

additional dowry of Rs.3,00,000/-, wherein a quarrel took place and

A1 forcibly made the deceased to consume acid resulting her death

while undergoing treatment. There are no allegations, much less,

specific allegations in the complaint with regard to demand of

additional dowry at the time of marriage or at the relevant point of

. (2014) 9 SCC 365 13 KL,J Crl.P. No.6427 of 2019

time. The allegations alleged against the petitioners herein are general

and omnibus allegations. There are no specific allegations such as

date, time and place of alleged demand of additional dowry by the

petitioners herein. There is no dispute that the 2nd petitioner is a

Judicial Officer, worked at Mancherial and thereafter, at Nizamabad at

the relevant point of time. The 1st petitioner is a Homeopathy Doctor.

According to her, she has accompanied the 2nd petitioner wherever he

was posted.

25. Learned counsel for the petitioners would submit that the

petitioners are nothing to do with the marital life of the deceased with

Accused No.1.

26. The Apex Court in Preeti Gupta v. State of Jharkhand5

categorically held that the members of the family of the husband

cannot be roped in family issues and dowry harassment cases. Prima

facie, there should be specific allegations and specific instances such

as time, date and place of alleged demand of additional dowry and

harassment of the women. The same are lacking in the present case.

27. As discussed supra, there are no allegations, much less specific

allegations against the petitioners herein. Prima facie, allegations are

made only against Accused No.1.

    . (2010) 7 SCC 667
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28. In Geeta Mehrotra v. State of UP6, the Apex Court held as

under:

"However, we deem it appropriate to add by way of caution that we may not be misunderstood so as to infer that even if there are allegation of overt act indicating the complicity of the members of the family named in the FIR in a given case, cognizance would be unjustified but what we wish to emphasize by highlighting is that, if the FIR as it stands does not disclose specific allegation against accused more so against the co-accused specially in a matter arising out of matrimonial bickering, it would be clear abuse of the legal and judicial process to mechanically send the named accused in the FIR to undergo the trial unless of course the FIR discloses specific allegations which would persuade the Court to take cognizance of the offence alleged against the relatives of the main accused who are prima facie not found to have indulged in physical and mental torture of the complainant-wife. It is the well settled principle laid down in cases too numerous to mention, that if the FIR did not disclose the commission of an offence, the Court would be justified in quashing the proceedings preventing the abuse of the process of law. Simultaneously, the Courts are expected to adopt a cautious approach in matters of quashing specially in cases of matrimonial dispute whether the FIR in fact discloses commission of an offence by the relatives of the principal accused or the FIR prima facie discloses a case of over-implication by involving the entire family of the accused at the instance of the

. (2012) 10 SCC 741 15 KL,J Crl.P. No.6427 of 2019

complainant, who is out to settle her scores arising out of the teething problem or skirmish of domestic bickering while settling down in her new matrimonial surrounding."

29. In view of the said law laid down by the Apex Court, coming to

the facts on hand, there are no allegations, much less specific

allegations, against the petitioners.

30. It is also relevant to note that LW23-Parshiya Srinivasa Rao,

Police Constable, working in Banjara Hills Police Station, has

recorded the statement of the de facto complainant on 11.05.2014 at

7.308.A.M. In the said statement, the 2nd respondent has stated that on

8.5.2014 his daughter came to his house at Mahabubnagar to attend

marriage function of her brother-in-law. On 11.5.2014, A1, who is his

son-in-law, came to Ayodhya Nagar, Hanwada, Mahabubnagar, to

attend the death ceremony of his grand mother. His daughter was

suffering from ill-health since last three days and was upset. On 10-

05-2014 at 2200 hours when he and his family members were present

in the hall, meanwhile his daughter went to washroom after some time

she came out and was vomited. Then they rushed to her and she has

informed that she has consumed toilet cleaning acid, which was there

in the washroom. Immediately, the 2nd respondent and his family

members rushed her to SVS Hospital for treatment and the said fact

was informed to A1, who was at his grand mother's home.

Immediately, A1 rushed to the hospital and on the advice of the

Doctor, they have shifted the deceased to Apollo Hospital, Film 16 KL,J Crl.P. No.6427 of 2019

Nagar, Hyderabad, for better treatment. The said incident took place

at his residence and he has no suspect or involvement of any one.

The said fact of recording of statement of LW.1, and LW.23,

constable, P.S. Banjara Hills, was mentioned in the statement of

LW.23. Though the said facts were referred to in the charge sheet, the

same were not considered.

31. Learned Counsel has filed certified copy of the said statement

of LW1. Referring to the statements of LW1 and other witnesses

recorded by the Police and also by Tahsildar, Hanwada Mandal,

Mahabubnagar i.e., LW.50, learned counsel would submit that the

said statements would show that the Investigating Officer has not

conducted the investigation properly. According to him, LW15 did

not conduct any inquest.

32. A perusal of the Attendance Certificate dated 25.7.2014 issued

by the I Additional Junior Civil Judge, I/c. II Additional Junior Civil

Judge, Nizamabad, would reveal that the 2nd petitioner was working as

II Additional Junior Civil Judge, Nizamabad, and he has worked with

effect from 1.5.2014 to 11.5.2014 and availed summer vacation with

effect from 12.5.2014 to 20.5.2014 and worked with effect from

21.5.2014 to 31.5.2014. He has availed public holiday on 25.5.2014.

The Casual Leave Register and Attendance Register in respect of the

said Court would reveal the said fact. Though it is mentioned in the

charge sheet that they were collected, the Investigating Officer did not

refer the same in the charge sheet. The same were not considered by 17 KL,J Crl.P. No.6427 of 2019

the Investigating Officer while laying the charge sheet. The

Investigating Officer has not examined any official from the said

Court including the Officer, who has issued the Attendance

Certificate, Casual Leave Register and Attendance Register in respect

of the second petitioner.

33. Thus, the Investigating Officer has not considered the said facts

and also the fact that the both the petitioners were not there at the

relevant point of time at Mahabubnagar. It is also trite to note that the

Investigating Officer has recorded the statement of LW23-Parshiya

Srinivasa Rao, Police Constable 4929 of Banjara Hills Police Station,

who recorded the statement of the deceased under Section 161 Cr.P.C

at Apollo Hospital. There is no reference with regard to the statement

of LW1 recorded by LW23 under Section 161 Cr.P.C. LW1 herein

did not make any allegations in any one of the accused. On the other

hand, he has specifically mentioned that the incident took place at his

residence, but he has no suspicion on anybody or involvement of

anyone. The said statement of LW23 and statement of LW1 recorded

under Section 161 Cr.P.C. were not at all referred and considered by

the Investigating Officer in the charge sheet.

34. A Division Bench of Bombay High Court at Nagpur Bench in

Shabnam Sheikh vs. State of Maharashtra7 held as under:

"Nowadays, it has become a tendency to make vague and omnibus allegations, against every

. Criminal Application No.114 of 2014, decided on 15.10.2020 18 KL,J Crl.P. No.6427 of 2019

member of the family of the husband, implicating everybody under Section 498-Aof the Penal Code. It is necessary for the Courts to carefully scrutinize the allegations and to find out if the allegations made really constitute an offence and meet the requirements of the law at least prima facie."

35. There should be some nexus between the demand of dowry,

cruelty or harassment based upon such demand on the date of the

death. The test of proximity has to be applied. Reasons for delay

should come on record. There is no explanation, but the name given

by the complainant as to why the complainant maintained stoic

silence. The testimony of the witnesses alleging dowry demand has to

be tested more stringently and with some caution. Analysis of the

statement has to be made.

36. As discussed supra, there is no plausible explanation for the

abnormal delay of 69 days in lodging the complaint. The prosecution

failed to establish the nexus among the demand of dowry, cruelty and

harassment based upon such demand on the date of the death. There

are no allegations, much less specific allegations, against the

petitioners herein with regard to the alleged demand of dowry and

harassment.

37. As per the contents of the charge sheet, the allegation of alleged

commission of offence under Section 302 IPC is only against A1.

The offences alleged against the petitioners herein are Sections 304-B,

498-A, 109 read with Section 34 IPC.

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38. In view of the same, it is relevant to extract Section 498-A IPC,

which reads under:

"Husband or relative of husband of a woman subjecting her to cruelty-whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may tend to three years and shall also be liable to fine.

Explanation-For the purposes of this section, "cruelty" means-

(a)Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health(whether mental or physical) of the woman;

               or
               (b)Harassment    of   the     woman   where    such

harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

39. It is also relevant to extract Section 304-B IPC, which reads as

under:

"(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.

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                                                             Crl.P. No.6427 of 2019

Explanation-For the purpose 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."

40. It is also relevant to extract the provisions of Section 113-B of

the Indian Evidence Act, which deals with presumption as to dowry

death.

"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 had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death."

41. A perusal of the above said provisions would reveal that the

offence under Section 304-B of IPC requires the following

ingredients:

(1) Within 7 years of marriage, they must happen the death of a woman;

(2) the death must be caused by any burns or bodily injury, or the death must occur otherwise than under normal circumstances; (3) it must be established that soon before her death, she was subjected to cruelty or harassment;

21 KL,J Crl.P. No.6427 of 2019

(4) the cruelty or harassment may be by her husband or any relative of her husband; and (5) the cruelty or harassment by the husband or relative of the husband must be for, or in connection with, any demand for dowry.

42. It is also relevant to note that as per Section 304-B of IPC

husband or any relative of the husband shall be presumed that caused

her death.

43. Section 113-B of the Indian Evidence Act, 1872, provides with

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 had been subjected by such

person to cruelty or harassment for, or in connection with, any

demand for dowry, the Court shall presume that such person had

caused the dowry death. It is, no doubt, a rebuttable presumption, and

it is open to the husband and his relatives to show the absence of

ingredients of Section 304-B of IPC.

44. It is also relevant to note that the foremost aspect to be

established by the prosecution is that there was reliable evidence to

show that the woman was subjected to cruelty or harassment by her

husband or his relatives which must be for or in connection with any

demand for dowry, soon before her death. Before the presumption is

based, it must be established that woman was subjected by such

person to cruelty or harassment and it is not in any cruelty that 22 KL,J Crl.P. No.6427 of 2019

becomes the subject matter of provision, but it is the cruelty or

harassment it is mental or in connection with demand for dowry.

45. As per Section 498-A of IPC, there should be willful conduct of

nature as is likely to drive the woman to commit suicide or to cause

grave injury or danger to life, limb or health (whether mental or

physical) of the woman and harassment of the woman where such

harassment is with a view to coercing her or any person related to her

to meet any unlawful demand for any property or valuable security or

is on account of failure by her or any person related to her to meet

such demand, shall be liable to punishment.

46. It is also apt to note that there is no definition of dowry in IPC.

Section 2 of the Dowry Prohibition Act defines dowry, which says

"dowry" means any property or valuable security given or agreed to

be given either directly or indirectly (a) by one party to a marriage to

the other party to the marriage; (b) by the parents of either party to a

marriage or by any other person, to either party to the marriage or to

any other person at or before (or any time after the marriage) (in

connection with the marriage of the said parties, but does not include)

dower or mahr in the case of persons to whom the Muslim Personal

Law (Shariat) applies. By virtue of an Amendment vide Act63/84

which came into force w.e.f., 2.10.1985, the words in connection with

the marriage of the said parties were inserted by the legislature.

Therefore, the legislature in its wisdom, made it very clear that the

dowry should be in connection with the marriage of parties.

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                                                       Crl.P. No.6427 of 2019

47. The Apex Court in Satvir Singh v. State of Punjab8 held that

there are three occasions related to dowry. One is before the

marriage, second is at the time of marriage and the third is at any time

after the marriage. The third occasion may appear to be an unending

period. But the crucial words are in connection with the marriage of

the said parties. This means that giving or agreeing to give any

property or valuable security on any of the above three stages should

have been in connection with the marriage of the parties. There can be

many other instances for payment of money or giving property as

between the spouses. For example, some customary payments in

connection with birth of a child or other ceremonies are prevalent in

different societies. Such payments are not enveloped within the ambit

of dowry. Hence the dowry mentioned in Section 304-B of IPC

should be any property or valuable security given or agreed to be

given in connection with the marriage.

48. It was further held that it is not enough that harassment or

cruelty was caused to the woman with a demand for dowry at some

time, if Section 304-B of IPC is to be invoked. But it should have

happened soon before her death. The said phrase, no doubt, is an

elastic expression and can refer to a period either immediately or

before her death or within a few days or even a few weeks before it.

But the proximity to her death is the pivot indicated by that

expression. The legislative object in providing such a radius of time

. 2001 Crl.L.J. 4625 24 KL,J Crl.P. No.6427 of 2019

by employing the words soon before her death is to emphasis the idea

that her death should, in all probabilities, have been the aftermath of

such cruelty or harassment. In other words, there should be a

perceptible nexus between her death and the dowry related harassment

or cruelty inflicted on her. If the interval which elapsed between the

infliction of such harassment or cruelty and her death is wide the

Court would be in a position to gauge that in all probabilities the

harassment or cruelty would not have been the immediate cause of her

death.

49. The Apex Court in Dinesh Seth v. State of N.C.T of Delhi9 by

referring to several other judgments rendered by it held that an

offence under Section 498-A of IPC is made out if the woman is

subjected to physical assault, humiliation, harassment and mental

torture.

50. The ingredient of cruelty is common in Sections 304-B IPC

and 498-A IPC, but the width and scope of two sections is different,

inasmuch as Section 304-B deals with cases of death as a result of

cruelty or harassment within seven years of marriage, Section 498-A

has a wider spectrum and it covers all cases in which the wife is

subjected to cruelty by her husband or relatives. A perusal of the

charge sheet and statements of the witnesses would reveal that there is

no mention or none of the witnesses spoke about the alleged

. Crl.A.No.1239 of 2003, decided on 18.8.2008 25 KL,J Crl.P. No.6427 of 2019

harassment of the deceased demanding dowry at any point of time or

soon before her death by the accused. Of course, though, they are

triable issues, as discussed supra, the entire charge sheet and

statements of the witnesses lacks the said ingredients of the offences

alleged against the petitioners herein and, therefore, the facts of the

present case squarely falls on the parameters laid down by the Apex

Court in State of Haryana v. Bhajan Lal10 and the same reproduced

hereunder:

"(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever

. 1992 Supp. (1) SCC 335 26 KL,J Crl.P. No.6427 of 2019

reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or Act concerned, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

51. In view of the law laid down by the Apex Court and also

coming to the facts of the case on hand, as discussed above, there is

abnormal delay in lodging the complaint. There is no explanation,

much less logical/satisfactory explanation, by the second respondent

in lodging the complaint with abnormal delay.

52. The Investigating Officer has not considered the deposition of

LW23 and the statement of LW1-second respondent recorded by him

under Section 161 Cr.P.C. wherein the second respondent-de facto

complainant has stated that the incident took place at his residence, he

is not having any suspicion for the same and he is not suspecting

anybody.

53. The Investigating Officer has not considered the Attendance

Certificate issued by the II Additional Junior Civil Judge and also the 27 KL,J Crl.P. No.6427 of 2019

Casual Leave Register and Attendance Register in respect of the

second petitioner.

54. In view of the above said discussion, the present proceedings in

P.R.C.No.9 of 2019 are liable to be quashed against the petitioners

herein only for more than one count.

55. The Apex Court in catena of decisions categorically held that

the defence of the accused cannot be considered in an application

Section 482 of Cr.P.C and the criminal proceedings have to be

quashed by the High Court by invoking its inherent powers under

Section 482 of Cr.P.C. in rarest of rare cases with great caution and

with great circumspection.

56. In view of the above said discussion, according to this Court, it

is a rarest of rare case, where this Court can invoke its inherent

powers under Section 482 of Cr.P.C. to quash the proceedings in

P.R.C.No.9 of 2019. According to this Court, the case on hand will

fall under one of the seven categories laid down by the Apex Court in

Bhajanlal10.

57. In view of the above said discussion, the proceedings in

P.R.C.No.9 of 2019 pending on the file of Principal Junior Civil

Judge, Mahabubnagar, are liable to be quashed against the petitioners

herein - accused Nos.4 and 5 only.

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                                                    Crl.P. No.6427 of 2019

58. Accordingly, the Criminal Petition is allowed and the

proceedings in P.R.C.No.9 of 2019 on the file of the Principal Junior

Civil Judge, Mahabubnagar, are quashed against the petitioners-A4

and A5 only.

As a sequel, miscellaneous petitions, if any, pending in the

Criminal Petition shall stand closed.

________________________ JUSTICE K. LAKSHMAN

Date: 01.06.2021 Rkk