Md. Afzaluddin, vs State Of A.P.,
2022 Latest Caselaw 4098 Tel

             THE HON'BLE SRI JUSTICE K.SURENDER

               CRIMINAL APPEAL No.726 OF 2009

JUDGMENT:

1. This Criminal Appeal is filed by the appellant/A1 aggrieved

by the conviction recorded by the Judge, Family Court-cum-

Additional Sessions Judge, FAC-III Additional Sessions Judge

(FTC), Khammam, in S.C.No.115 of 2008 dated 26.06.2009, for

the offence punishable under Sections 498-A and 304-B of

Indian Penal Code and sentenced to undergo Rigorous

Imprisonment for a period of ten years for the offence under

Section 304-B of IPC and to undergo simple imprisonment for a

period of two months for the offence under Section 498-A IPC.

2. The appellant/Accused No.1 is the husband of the

deceased who died by hanging herself to the ceiling fan unable to

bear the cruelty of the appellant/A1 and the acquitted accused

No.2 to 5.

3. The case of the prosecution is that the appellant was

married to the deceased who is the daughter of PW1 on

30.01.2005 and a dowry of Rs.80,000/- cash was given at the

time of marriage. Apart from the amount, 8 Tulas of gold, 50

Tulas of silver and other household articles worth Rs.30,000/-

was given. After marriage the deceased started living happily for

one year. However, the appellant insisted that the deceased gets

additional amount of Rs.20,000/- from PW1. Accordingly, PW1

gave a loan amount of Rs.20,000/- to the appellant/A1.

Thereafter, out of the said loan amount an amount of Rs.5,000/-

was returned and when PW1 demanded for the remaining

amount of Rs.15,000/-, all the accused demanded to pay

additional dowry of Rs.1 lakh. Aggrieved by the said demand

PW1 informed the Masjid committee. On 16.05.2007, the

deceased went to PW1 and informed that the appellant and

others were demanding additional dowry. Thereafter, PW1

consoled the deceased and sent her back. Subsequently, the

appellant called on telephone and informed PW1 that the

deceased committed suicide. PW1 and others went to the house

of appellant and found the deceased died of hanging to a ceiling

fan and suspected the appellant and others are responsible and

accordingly lodged a complaint under Ex.P1.

4. The police having received the complaint, investigated the

case and filed charge sheet against A1 to A5. However, the

learned Sessions Judge found A2 to A5 not guilty of any of the

offences alleged and acquitted them. The State did not prefer any

appeal questioning the acquittal of Accused Nos.2 to 5.

5. Learned Counsel for the appellant submits that the entire

testimony of PW1 is an omission in earlier statement and an

improvement made during the course of his evidence before the

Court. The Investigating Officer-PW11 accepted that PW1 did not

state about giving Rs.1 lakh dowry and also that the deceased

informed him that the accused were demanding an additional

Dowry. Further, there is no allegation of the issue being taken

before the Masjid Committee. It is also not stated that on

16.05.2007 the deceased met PW1 and informed regarding the

accused harassing for additional dowry. Learned counsel further

submits that the entire case on the basis of which the learned

Sessions Judge convicted the appellant are omissions, hence the

appeal has to be allowed.

6. On the other hand learned Public Prosecutor submits that

as seen from Ex.P1-complaint, PW1 stated that Rs.80,000/- and

other house household articles were given and for the reason of

constant harassment for additional dowry PW1 pleaded that the

appellant and others not to harass his daughter. In the said

circumstances it cannot be said that the death was not on

account of harassment by the appellant. He further submits that

presumption under Section 113-B of the Evidence Act is

attracted and the appellant failed to discharge his burden and

for the said reason conviction cannot be interfered with.

7. The allegation of giving dowry at the time of marriage is

consistent. Further the evidence that the deceased was harassed

for additional dowry was stated by the PWs.1 to 3 who are family

members of the deceased. However, there are no specific

instances which have been narrated by any of the witnesses. The

basis for coming to a conclusion that the appellant is guilty of

the offence under Section 304-B of Indian Penal Code is the

alleged visit of the deceased to the house of PW1 on 16.05.2007.

8. As seen from the complaint and also the charges framed

under Section 304-B of IPC, no such allegation is made nor

found part of the charge framed against the appellant.

9. The Hon'ble Supreme Court in the case of State of

Madhya Pradesh v. Jogendra1, held as follows:

"9. The most fundamental constituent for attracting the provisions of Section 304-B IPC is that the death of the woman must be a dowry death. The ingredients for making out an offence under Section 304-B have been reiterated in several rulings of this Court. Four prerequisites for convicting an accused for the offence punishable under Section 304-B are as follows:

(i) that the death of a woman must have been caused by burns or bodily injury or occurred otherwise than under normal circumstance;

(ii) that such a death must have occurred within a period of seven years of her marriage;

(iii) that the woman must have been subjected to cruelty or harassment at the hands of her husband, soon before her death; and

(iv) that such a cruelty or harassment must have been for or related to any demand for dowry."

10. The Hon'ble Supreme Court has held that unless

harassment soon before the death is shown by the prosecution,

the Court cannot convict the accused for the offence under

Section 304-B of IPC. "Soon before death" differs from case to

case and it has to be determined whether prior to the death there

was any harassment. In the present case, the witnesses have

stated that it was the deceased who informed them that the

appellant and others were constantly harassing for additional

(2022) 5 Supreme Court Cases 401

dowry. However, the crucial visit of the deceased on 16.05.2007

is a complete omission in the complaint and it was stated for the

first time during the course of trial by the witnesses. Excluding

the said date there is no proximate date or time alleged by the

witnesses to conclude that there was harassment soon before

her death. In the said circumstances, the prosecution has failed

to prove the offence under Section 304-B of IPC.

11. However, as seen from the narration of the witnesses, the

deceased had informed on several occasions to PW1 and other

family members that the accused were harassing for additional

dowry. PW1 also informed that Rs.20,000/- was given. However

the appellant had returned Rs.5,000/-. In the background of the

demands made by the appellant, the appellant is liable for the

offence under Section 498-A of IPC.

12. However, since the offence alleged had taken place in the

year 2007 and 15 years have elapsed since the incident took

place, for which reason this Court deems it appropriate to reduce

the sentence of imprisonment under Section 498-A of IPC to the

period already undergone.

13. Accordingly, the Criminal Appeal is partly allowed.

_________________ K.SURENDER, J Date: 10.08.2022 tk

THE HON'BLE SRI JUSTICE K.SURENDER

Crl.A.No.726 of 2009

Dated: 10.08.2022

tk