The State Of A.P., vs Donipalliraju
2021 Latest Caselaw 3051 Tel

     HONOURABLE Dr. JUSTICE CHILLAKUR SUMALATHA

               CRIMINAL APPEAL No.1120 of 2009
JUDGMENT:

1. Challenging the validity and the legality of the judgment dated

26.07.2007 rendered by the Court of the II Additional Sessions Judge,

(Fast Track Court), Adilabad, in Sessions Case No.161 of 2007,

through which the respondents-accused were acquitted of the charge

levelled against them, the appellant is before this Court by way of

appeal.

2. In the grounds of appeal, it is urged that the judgment of the

trial Court is contrary to law, weight of evidence and probabilities of

the case; that the learned judge of the trial Court ought to have seen

that the ingredients to constitute the offence punishable under Section

304-B I.P.C. were made out by the prosecution; that the learned judge

by not appreciating the evidence properly and based on assumptions

and presumptions acquitted the respondents-accused; that the learned

judge ought to have observed that independent witnesses would not be

available for the things that would happen within the four walls of the

house; and that the learned judge failed to observe that the deceased

died within seven years of her marriage at her in-laws house and thus,

the acquittal of the respondents-accused is unsustainable and as such,

the appeal has to be allowed.

3. Reported to take it as heard by the learned Additional Public

Prosecutor as well as the learned counsel appearing for the

respondents-accused.

Dr.CSL , J

4. Now the points that arise for determination are:

(1) Whether the prosecution emerged successful in

proving beyond all reasonable doubt that

Smt. Donipally Surekha died otherwise than under

normal circumstances and that, soon before her

death, she was subjected to cruelty or harassment

by the respondents-accused in connection with the

demand of dowry.

(2) Whether there exists any infirmity in the

judgment of the trial Court either in appreciating the

facts of the case or in applying the established

principles of law to the said facts, as contended by

the appellant, which in turn requires the interference

of this Court exercising the appellate jurisdiction.

5. Point No.1:

The matrix of the prosecution case, as could be culminated from

the charge sheet, is that P.W-1 has three daughters and two sons and

the deceased-Donipally Surekha (for brevity, hereinafter referred as

"the deceased") is his third daughter and P.W-1 performed the

marriage of the deceased with the first accused on 05.04.2006 paying

net cash of Rs.8,000/- and promising to give half tula of gold after the

marriage, but the deceased and the first accused enjoyed their family

life for a period of five days only and later, on the instigation of

accused Nos.2 to 4, the first accused started harassing the deceased for

half tula of gold that was promised to be given by her parents and the Dr.CSL , J

deceased due to the said harassment, vexed with her life, decided to

commit suicide and accordingly, on 15.4.2006, at about 6.30 pm., she

poured kerosene on her body and set herself ablaze, due to which, she

received burn injuries all over the body and she was shifted to the

Government Hospital, Adilabad, for treatment and that on 20.4.2006,

she died while undergoing treatment.

6. A perusal of record of the trial Court reveals that the learned

judge of the trial Court, subjecting to the test of credibility the

evidence produced by the prosecution, both oral and documentary,

came to a conclusion that there is no clear material on record and

cogent evidence to show that the accused harassed the deceased and

thereby, she has committed suicide and with the said finding, the

learned judge found that the prosecution failed to establish the guilt of

the respondents-accused beyond all reasonable doubt and accordingly,

he acquitted them.

7. Now, to answer the challenge of the appellant and to verify

whether the grounds urged in the appeal are sustainable to allow this

appeal and to set aside the judgment of the trial Court, this Court has

to subject the entire investigation to strict scrutiny.

8. The crucial witnesses to this case are P.Ws.1 to 5. P.Ws.1 to 3

supported the case of the prosecution in all material particulars. By

their evidence, it is clear that P.Ws.1 to 3 are the father, the mother

and the brother of the deceased respectively. All these three witnesses

gave evidence to the effect that the deceased was given in marriage to

the first accused and an amount of Rs.8,000/- was paid as dowry and Dr.CSL , J

half tula of gold which was agreed to be given could not be given at

the time of marriage and it was agreed to give the said half tula of gold

within one month of the marriage and immediately, after the marriage,

the deceased joined the first accused for leading marital life, but she

was subjected to harassment by the accused and therefore, she set

herself ablaze on the date of the incident.

9. The further evidence of P.W-1 is that on 15.4.2006, during

night, he received a phone call from P.W-4 that his daughter (the

deceased) received burn injuries and immediately he went to the house

of the accused and found his daughter with burn injuries and he along

with accused Nos.1 to 3 shifted his daughter to the Government

Hospital, Adilabad, and his daughter died at the hospital on 20.4.2006

while undergoing treatment and his daughter informed him that due to

the harassment of the accused demanding half tula of gold, she

committed suicide. He further stated that he presented Ex.P-1-

complaint to Police.

10. How far the evidence of P.Ws.1 to 3 can be relied upon is the

aspect to be seen. The evidence of P.Ws.4 and 5 shatters the version of

P.W-1. P.Ws.4 and 5 categorically stated that their house is located

adjacent to the house of the accused and P.W-1 came to their village

one day prior to the incident and he also accompanied them to the

hospital.

11. P.W-1 during the course of cross-examination stated that there

are no direct buses from their village to Pippalkoti village (the place

where the incident occurred) and they have to go to Adilabad from Dr.CSL , J

their village and thereafter, they have to go to the Village of the

accused and it may take about two hours. He also stated that it may

take about one hour to go to Bori from their village and it may take

another one hour to proceed from Bori to Adilabad and another one

hour to proceed from Adilabad to Pippalkoti and to return to Adilabad

it may take another one hour. If the time calculation is made, as per

these statements, the possibility of P.W-1 proceeding from his Village

to Pippalkoti, the village of the accused, and then shifting the deceased

to the Government hospital located at Adilabad becomes highly

impossible.

12. The incident, as per the version of the prosecution, occurred on

15.4.2006 at about 6.30 pm. Ex.P-6-dying declaration reveals that

intimation was received by the Magistrate concerned for recording the

dying declaration of the deceased on the same day at 8.45 pm.

Therefore, it is clear that within two or three hours of the incident, the

deceased was shifted to the Government Hospital, Adilabad, for

treatment. As per the version of P.W-1 himself, it takes one hour to

Adilabad from the village of the accused. Thus, P.W-1 receiving the

information from P.W-4 in the night hours and his rushing to the

village of the accused from his house, as earlier stated by him, is

highly improbable. The same aspect is observed by the trial Court

also.

13. None of the material witnesses who supported the case of the

prosecution, more particularly P.Ws.1 to 3, stated that the deceased at

any point of time prior to the date of the incident at least informed Dr.CSL , J

them that the accused demanded her to get half tula of gold as agreed

upon.

14. The prosecution, to establish its version, also placed reliance on

the evidence of P.W-7-Magistrate who recorded the dying declaration

of the deceased. The evidence of P.W-7 is that on 15.4.2006, at 8.45

pm., she received a requisition from Police, Adilabad-II (T), for

recording the dying declaration of the deceased and that, she reached

the Government Hospital, Adilabad, at 9.10 pm and found the patient

in Casualty ward and the patient was identified by the duty doctor and

after sending away all the attendants of the patient from that place, she

enquired the doctor and the doctor reported that the patient is

conscious and can make a statement and that, she put some

preliminary questions to the deceased to understand her state of mind

and thereafter, P.W-7 revealed her identity to the patient and after

being satisfied with her mental condition, she proceeded to record her

dying declaration and that the deceased stated that her name is

Surekha and she poured kerosene and set herself on fire and when a

question was put about the reason, the deceased stated that she is not

interested to live and that her husband is good, but as she is not

interested to live, she ended her life and that P.W-7 obtained the toe

impression of the deceased on the dying declaration and that Ex.P-5 is

the requisition received by P.W-7 from Police and Ex.P-6 is the dying

declaration of the deceased recorded by P.W-7.

15. The relevant portion in Ex.P-6-dying declaration of the

deceased is extracted as follows:-

Dr.CSL , J

16. Thus, there is no convincing evidence that is brought on record,

either through the prosecution witnesses who deposed before the trial

Court or through the dying declaration of the alleged victim, to

connect the respondents-accused with the crime.

17. Having considered all the above aspects, this Court is of the

view that the evidence produced by the prosecution does not inspire

confidence to act upon against the respondents-accused.

18. It is incumbent on the part of the prosecution to establish in

clear terms that the death which occurred otherwise than under normal

circumstances within seven years of marriage is due to the reason of

subjecting the deceased to cruelty or harassment by the husband of the

victim or any relative connected to him for or in connection with any

demand of dowry.

19. Needless to say that the term 'dowry' carries the same meaning

as assigned under Section 2 of the Dowry Prohibition Act, 1961. The

prosecution totally failed in its attempt to establish the required factors

as laid down under law. Therefore, this Court concludes that though

the prosecution attempted, it failed to establish the guilt of the

respondents-accused beyond all reasonable doubt before the trial

Court.

Dr.CSL , J

20.Point No.2:-

A meticulous perusal of the judgment of the trial Court reveals

that the learned judge of the trial Court had dealt with all the aspects

of the case in detail, gave clear findings on each aspect of the case and

came to a just conclusion. None of the grounds urged in the appeal,

therefore, can disturb the said well-reasoned judgment of the trial

Court. Therefore, this Court concludes that this appeal lacks merits

and deserves dismissal.

21. In the result, this Criminal Appeal stands dismissed confirming

the judgment dated 26.07.2007 rendered by the Court of the

II Additional Sessions Judge, (Fast Track Court), Adilabad, in

Sessions Case No.161 of 2007.

22. Pending Miscellaneous Petitions, if any, shall stand closed.

__________________________________ Dr. JUSTICE CHILLAKUR SUMALATHA 28.10.2021 dr