Orsu Nagesh And 2 Others vs The State Of Telangana
2022 Latest Caselaw 1879 Tel

   HONOURABLE SRI JUSTICE K.SURENDER

           CRIMINAL APPEAL No. 39 OF 2020

JUDGMENT:

This Criminal Appeal is preferred against judgment in

S.C.No.630 of 2020 on the file of the VIII Additional District

& Sessions Judge, Ranga Reddy District at L.B.Nagar,

wherein the Accused No.1 was sentenced to undergo

Rigorous Imprisonment for a period of seven years for the

offence punishable under Section 304-B of IPC and to

undergo Simple Imprisonment for a period of two years and

also to pay a fine of Rs.10,000/-, in default, to suffer simple

imprisonment for a period of two months for the offence

punishable under Section 498-A of IPC. Accused Nos.2 and

3 were sentenced to undergo Simple Imprisonment for a

period of two years and also to pay a fine of Rs.10,000/-, in

default, to suffer simple imprisonment for a period of two

months for the offence punishable under Section 498-A of

IPC. Accused 2 & 3 were found not guilty for the offence

under Section 304-B IPC. The Accused Nos.4 and 5 were

found not guilty for the offences under Sections 304-B and

498-A of IPC and were acquitted.

2. Brief facts of the case are that P.W.1, who is the father

of the deceased filed a complaint on 08.03.2015 stating that

he performed his daughter's (deceased) marriage with A1.

He agreed to pay Rs.15,00,000/- dowry and towards

Rs.12,00,000/- of the said dowry, 92 sq.yds of land was

given and for the remaining amount of Rs.3,00,000/-, 20

tulas of gold was given and the marriage was performed.

The deceased daughter was happy for one year and she gave

birth to one female child on 20.03.2011. Since the birth of

the female child, the first appellant-husband and the

parents-in-law i.e., Accused Nos.2 and 3 and also the

acquitted Accused Nos.4 and 5, who are the bothers of

Accused No.1, harassed the deceased mentally and

physically for additional dowry of Rs.20,00,000/-. P.W.1

gave Rs.1,00,000/-, 80,000/- and Rs.30,000/- and

Rs.5,00,000/- to A1 to A3. P.W.1 informed that he cannot

pay remaining amount, as such, the deceased was beaten,

for which reason, a panchayat was held. However, there

was no change in the attitude of the appellants. P.W.1

lodged a complaint with Tappachaputra Police Station. The

police reprimanded the appellants. However, after two

months, the appellants started harassing again for

additional dowry. For the said reason, a panchayath was

held in the presence of P.Ws.6 to 10. Since P.W.1 and A2

are own brother and sister, they wanted to settle the issue

within the family. However, in the presence of the said

witnesses, P.W.1 gave an amount of Rs.3,00,000/- as

additional dowry to the appellants. In the month of January

2015, A1 and the deceased shifted their house to Nagole

and started living separately. A2 and A3 visited the house

of the deceased and A1 harassed to get half share in the

property of her father P.W.1. On 07.03.2015 at 8.00 a.m,

the deceased called P.W.1 enquiring about P.Ws.1 and 2

and disconnected phone. On the same day, around 4.00

p.m, one Venkat Swamy informed that the deceased

committed suicide. Thereafter, inquest and scene of offence

panchanama were conducted. P.W.1 lodged a written

Telugu complaint Ex.P1 before the Police Station,

B.B.Nagar, wherein First Information Report in Cr.No.284 of

2015 was registered against the appellants for the offence

under Section 304-B IPC and also against the acquitted A4

and A5.

3. The prosecution examined P.Ws.1 to 21 and marked

Exs.P1 to P17. No documents are marked nor any

witnesses examined on behalf of the accused in defence.

During the course of Section 313 examination, all the

accused/appellants denied the allegations leveled against

them.

4. On considering the evidence on record, the trial Court

convicted as stated supra.

5. Heard Smt.G.Jaya Reddy, learned counsel for the

appellants and Sri Sudharshan, learned Assistant Public

Prosecutor for the State.

6. Learned counsel for the appellants submitted that a

false case is filed against the appellants herein. P.W.1 and

A2 are own brother and sister and P.W.1 pleaded with the

appellants to marry his daughter, upon which, the marriage

was performed, without giving any dowry. As seen from the

evidence, the alleged dowry of Rs.15,00,000/- was

appropriated by way of gifting 92 sq.yds of land and 20

tulas of gold. However, neither P.W.1 produced any

document nor any evidence revealed any such transfer of

land in favour of the accused or the deceased. Except the

oral evidence of the witnesses P.Ws.1 and 2 regarding dowry

and additional dowry, there is no other evidence to

substantiate the allegations of harassment and taking

dowry. In support of her contentions, she relied upon

judgment of Hon'ble Supreme Court in the case of Gurdeep

Singh v. State of Punjab1, judgment of High Court of

Allahabad in the case of Manish Kumar Srivastava v.

State of U.P2 and argued that there is no demand soon

prior to the death of the deceased to attract Section 304-B of

IPC and the trial Court erred in convicting the accused on

the basis of vague and uncorroborated allegations of giving

dowry and harassing the deceased.

7. On the other hand, learned Public Prosecutor has

submitted that the judgment of the trial Court is well

reasoned and warrants no interference. Further, from the

phone call made by the deceased in the morning of the day

of committing suicide is sufficient to infer harassment 'soon

before her death' to sustain the conviction under Section

304-B of IPC.

Criminal Appeal No.1085 of 2003, dated 25.08.2011

Criminal Appeal No.7335 of 2019 dated 05.03.2021

8. As seen from the evidence of witnesses, the alleged

dowry of Rs.15,00,000/- was given by way of gifting 92

sq.yds of land situated at Peerzadiguda and 20 tulas of gold

worth Rs.3,00,000/-. However, no details of the said

transfer of land of 92 sq.yds is forthcoming, for which

reason, it cannot be assumed, in the absence of either P.W.1

producing any evidence nor the Investigating Officer

collecting any record to show that P.W.1 owned 92 sq.yds of

land at Peerzadiguda or that it was transferred either in the

name of the deceased or the accused.

9. The other allegation is of constant harassment by the

appellants herein and also acquitted A4 and A5 demanding

additional dowry, for which reason P.W.1 gave amount of

Rs.1,00,000/-, Rs.80,000/- and Rs.30,000/-. The evidence

regarding the amounts given is stated by P.W.1 and P.w.2,

who are the parents of the deceased and also P.Ws.4, 5, 6

and 7. During the cross-examination of P.Ws.4, 5 and 6,

the witnesses admitted that they do not have any personal

knowledge about the dowry, additional dowry and they

deposed on the basis of information given by P.W.1.

Admittedly, the said witnesses have no knowledge about any

such demand and their evidence is hearsay. For the said

reason, except the evidence of P.Ws.1 and 2, who are the

parents of the deceased, there is no independent

corroboration of the allegations of payment of dowry of

Rs.15.00 lakhs and additional dowry. However, for the said

reason, the evidence of P.Ws.1 and 2, who are the parents of

the deceased, cannot be disbelieved in its totality.

10. The complaint Ex.P1 and the evidence of P.Ws.1 and 2

is consistent regarding giving of additional dowry and

harassment, however, without giving any specific dates or

events when the said dowry was given.

11. The Hon'ble Supreme Court in the judgment reported

in a case of Suresh Kumar Singh v. State of U.P3, held as

follows:

"22. It is in the aforementioned context, we may consider the effect of the term "soon before death".

Section 304B of the Code provides for a penal offence. It has the following ingredients:

(i) The death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances;

(ii) Such death must have occurred within seven years from the date of the marriage'

(2011) 1 SCC (Cri) 989

(iii) Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or any relative of her husband; and

(iv) Such cruelty or harassment must be in connection with the demand of dowry."

12. As discussed above, there are no specific instances or

dates on which the alleged harassment had taken place. In

the absence of any such proof of harassment 'soon before

the death' as termed under Section 304-B of IPC and

Section 113-B of the Indian Evidence Act, presumption

cannot be raised to shift the burden on to the accused. The

proximity test, as stated by the Hon'ble Supreme Court fails

for the reason of there being no evidence regarding any

specific events of harassment leading to death of the

deceased or any time 'soon before death'. The argument of

the learned Public Prosecutor that the telephone call of the

deceased in the morning of the day she committed suicide,

is sufficient to draw inference of harassment cannot be

accepted. It cannot be assumed that the telephone call was

made due to any harassment and also in the absence of

P.W.1 and 2 stating anything about deceased informing

about harassment meted out to the deceased. In fact, the

witnesses P.ws.1 and 2 stated that the deceased enquired

about them and disconnected the phone. There is no

evidence to the effect that the telephone call was a result of

any harassment by the appellants or that any incident

occurred after the phone call was made at 8.00 A.M.

13. On the basis of the evidence, it is found by the Trial

Court that A1 and the deceased were staying separately and

there is no evidence about the visits of the appellants 2 and

3 and there was no evidence to show that there was any

kind of interference of A2 to A5. When such is the finding of

Trial Court, the question of convicting the appellants 2 and

3/A2 and A3 under Section 498-A of IPC does not arise. As

seen from the evidence on record and as found by the trial

Court, there is no evidence to show that the appellants 2

and 3 have visited the house of the deceased and A1.

Except making bald allegations of harassment against

Appellants 2 and 3 and not satisfied with the amounts of

Rs.1,00,000/-, Rs.80,000/- and Rs.30,000/- given to the

Appellants 2 and 3. Further, the evidence in the Court that

these amounts were given to A2 and A3 is an omission

asked during the cross-examination of P.W.1 and proved

through P.W.18. For the said reason, the benefit of doubt

can be extended to the Appellants 2 and 3. For the reasons

above mentioned, conviction under Section 498-A against

A2 and A3 cannot be sustained and accordingly set aside. It

is further in the evidence of P.W.1 that the appellants 2 and

3 had in fact raised an orphan girl, having adopted her by

name Anita. A2 and A3 also performed the marriage of said

Anita with one Ashok.

14. In the present facts of the case, when A1 and deceased

were living separately, no evidence is forthcoming regarding

any kind of harassment in proximity with the death of the

deceased, the conviction of A1 under Section 304-B is also

required to be set aside and accordingly set aside. However,

A1 and also the deceased were staying together separately

and the evidence of P.Ws.1 and 2 is consistent regarding

additional dowry given after marriage and panchayat being

held. Though it is suggested to the witnesses that the

deceased was adamant, quarrelsome and short tempered,

no specific instance of such conduct of the deceased is

placed on record by adducing evidence or suggesting any

such specific instance for the court to infer any adamant,

quarrelsome or short tempered nature of the deceased.

15. In the facts and circumstances, the conviction against

A1 for the offences under Section 498-A of IPC is

maintained. The 1st appellant is in jail from 10.01.2020 to

18.11.2021, which is a period of nearly 23 months, as such,

the sentence is reduced to period already undergone.

Accordingly, the Criminal Appeal is disposed off. As a

sequel thereto, miscellaneous petitions, if any, shall stand

closed. The bail bonds of the accused stands cancelled.

________________ K.SURENDER,J Date : 13.04.2022 kvs

HONOURABLE SRI JUSTICE K.SURENDER

Criminal Appeal No. 39 OF 2020

Date: 13.04.2021

kvs