Vardhaman Brahma Chary, vs The State Of Andhra Pradesh,
2022 Latest Caselaw 6534 Tel

           THE HON'BLE Dr. JUSTICE G. RADHA RANI

                  CRIMINAL APPEAL No.68 of 2013


JUDGEMENT:

This appeal is preferred by the appellant/accused aggrieved by the

judgment dated 04.03.2011 in S.C.No.14 of 2007 on file of the Additional

Metropolitan Sessions Judge, Cyberabad in convicting him for the offence

under Section 304-B of IPC.

2. The case of the prosecution in brief was that the deceased was

the wife of the accused. She was married with the accused six (06) years

prior to her death. The accused used to work as Goldsmith at Addagutta,

Secunderabad. After engagement with the accused, the father of the

deceased died within few days. The mother of the deceased intended to

postpone the marriage, but at the insistence of the accused, the marriage

was solemnized in a temple at Addagutta in the presence of caste elders and

others. The accused did not take any dowry at the time of marriage. The

couple used to stay in a rented house at Addagutta, Secunderabad. The

deceased was looked after well by the accused for some time. After the

birth of their daughter-Divya, the accused started harassing the deceased on

the plea that no dowry was given at the time of marriage and demanded to

get dowry. He used to drink and beat the deceased frequently. Since, the

mother of the deceased (complainant) was staying in the immediate Dr.GRR,J

neighbourhood, the deceased used to visit her and narrate the harassment

meted out to her in the hands of her husband. A panchayat was arranged

by some members of Mahila Mandali. The accused promised to look after

his wife well but he did not mend his ways. He continued to harass her

demanding to get dowry from her mother and brothers. Subsequently, they

shifted to Uppal and stayed there for three (03) years, a son by name

Dinesh was born there. The accused was addicted to alcohol and used to

neglect his work. Subsequently, they shifted to a room in Baba Nagar,

Nacharam and stayed there. On 05.10.2005 in the afternoon, the accused

came home fully drunk, abused and beat the deceased for getting dowry.

Due to constant physical and mental harassment by the accused, the

deceased decided to end her life and also to poison her two (02) children.

She mixed some unknown poison in the curd and made her children to

consume the same and she also took the same. The accused was also

present in the house at the time of the incident but he did not suspect the

intentions of the deceased. Because of the effect of the poison when the

deceased and the two children were struggling for life and moving their

limbs frantically, and noticing some curd on the floor, the accused cried for

help and with the help of the neighbours, all three were shifted to Gandhi

Hospital, Secunderabad, where the wife of the accused (D1) died at about Dr.GRR,J

3:30 PM, her daughter-Baby Divya (D2) died at 03:45 PM on 05.10.2005.

Their son-Dinesh was treated and he subsequently recovered. Basing on

the complaint given by the mother of the D1 on 05.10.2005 at about 8:30

PM, the Sub-Inspector of Police, Nacharam Police Station registered a case

vide Crime No.208 of 2005 under Section 304-B of IPC. He examined and

recorded the statements of the complainant (mother) and brother of D1 as

LWs.2 and 3 and neighbours of D1 as LWs.4 and 5. He conducted scene

of offence panchanama in the presence of the witnesses. He gave a

requisition to the MRO to conduct inquest over the dead bodies of the

deceased. MRO visited the Gandhi Mortuary on 06.10.2005 at 11:00 AM

and conducted inquest panchanama over the dead bodies of D1 and D2 in

the presence of the witnesses. After inquest, the bodies of the deceased

were subjected to Post Mortem Examination by the Assistant Professor,

Department of Forensic Medicine, Gandhi Medical College/Hospital,

Secunderabad. The doctor sent the preserved viscera of D1 and D2 for

chemical analysis and after receiving the analysis report gave an opinion

that the cause of death of D1 and D2 was due to Organo Phosphate,

insecticide poison. The accused was arrested on 04.11.2005 and after

completion of investigation, the Assistant Commissioner of Police of Dr.GRR,J

Malkajgiri, Cyberabad filed charge sheet against the accused for the

offence under Section 304-B of IPC.

3. The case was taken cognizance by the III Metropolitan

Magistrate, Cyberabad registered it as PRC.No.37 of 2006 and committed

the same to the Court of Sessions. The Metropolitan Sessions Judge, R.R.

District made over the case file to Additional Metropolitan Sessions Judge,

Cyberabad for disposal of the same in accordance with law. The

Additional Metropolitan Sessions Judge, Cyberabad framed charges against

the accused for the offence under Section 304-B of IPC. As the accused

pleaded not guilty and claimed to be tried, trial was conducted. The

prosecution got examined PWs.1 to 9 and got marked Exs.P1 to P9. No

defence evidence was adduced by the accused.

4. On considering the oral and documentary evidence on record,

the trial court found the accused guilty for the offence under Section 304-B

of IPC and sentenced him to undergo rigorous imprisonment for a period of

ten (10) years and to pay a fine of Rs.1,000/- (Rupees One Thousand) only,

in default of payment of fine, to suffer simple imprisonment for six (06)

months.

5. Aggrieved by the said conviction and sentence, the accused

preferred this appeal. The contentions raised by the accused are that the Dr.GRR,J

prosecution failed to prove the ingredients of Section 304-B of IPC. The

trial court failed to see that there were no injuries on the body of the

deceased, as per the evidence of PW7, the doctor who conducted post

mortem examination. The trial court failed to see that no injuries were

found by inquest panchayatdars on the bodies of D1 and D2. The

prosecution miserably failed to prove the mensrea on the part of the

accused, as such, a benefit of doubt ought to have been given to the

accused. There was no nexus between the death of the deceased and the

involvement of the accused in the alleged offence. PWs.1 and 2, the

mother and brother of the deceased were interested witnesses. In the

absence of any independent evidence, the court ought to have acquitted the

accused and prayed to allow the appeal by setting aside the judgment of

conviction and sentence recorded by the trial court against the accused.

6. Heard learned counsel for the appellant and learned Assistant

Public Prosecutor.

7. Now the points for determination are:

1. Whether the prosecution has proved the guilt of the accused under Section 304-B of IPC beyond reasonable doubt?

2. Whether the conviction and sentence recorded by the trial court are sustainable?

8. As the accused was charged for the offence under Section 304-

Dr.GRR,J

B of IPC, it is considered necessary to extract the provision of Section 304-

B of IPC. Section 304-B is pertaining to 'Dowry Death' and it was inserted

by Act 43 of 1986 in the Indian Penal Code, 1860 with effect from

19.11.1986. Along with it Section 113-B was also inserted in the Indian

Evidence Act, 1872 under the same Act and it also came into effect from

the same date.

9. Section 304-B of IPC reads as follows:-

"304B. Dowry death -- (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.

Explanation: For the purposes 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."

10. Section 113-B of the Indian Evidence Act reads as follows:-

"113B. 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.

Dr.GRR,J

Explanation. For the purposes of this section, dowry death shall have the same meaning as in section 304B of the Indian Penal Code (45 of 1860)."

11. The essential ingredients to prove the offence under Section

304-B of IPC are as follows:

a. Death should be caused by burns or bodily injury or by any other circumstances.

b. Death must occur within the seven years of marriage.

c. Soon before her death, the deceased must be subjected to cruelty or harassment by her husband or any relative of her husband.

d. The cruelty or harassment should be in connection with the demand for dowry.

12. Section 113-B of the Indian Evidence Act, 1872 speaks about

the presumption relating to dowry death. It is a 'shall presumption' and if

the prosecution was successful in proving that the woman was subjected to

cruelty or harassment and such cruelty was in connection with any demand

for dowry and it was soon before her death, it is permissible to take

recourse to the legal presumption under Section 113B of Indian Evidence

Act, 1872. The presumption is rebuttable and the accused by raising a

probable defence can rebut such presumption.

13. In the light of the above provisions of law and the presumption

in favour of the prosecution, the evidence of the witnesses shall be looked

into.

Dr.GRR,J

14. PW1 is the mother of the deceased who lodged the complaint.

As per her evidence, six (06) years prior to the death of the D1, Mahalaxmi,

she performed her marriage with the accused. After the engagement was

fixed, her husband died. She intended to postpone her daughter's marriage

for one (01) year. But, the accused insisted and forcibly married her

daughter with the help of Mahila Mandali members assuring them that he

would not take any dowry. After the marriage, the accused and her

daughter lived for one year in a rental home at Parsigutta. The accused was

a goldsmith. They were blessed with one daughter. Thereafter, the

accused started assaulting and beating her daughter for dowry at the

influence of his brothers. She came to know about the same as she used to

visit her daughter often. Sometimes, accused also beat Mahalaxmi in her

presence. When they approached the member of Mahila Mandali, the

accused promised to look after his wife well and not to demand any dowry.

But, inspite of that accused again assaulted and beat her daughter and did

not change his attitude. Thereafter, they shifted to Uppal and stayed there

for three (03) years. While living at Uppal also the accused beat

Mahalaxmi, they again approached the members of Mahila Mandali, the

same scene was repeated. Inspite of an undertaking, there was no change

in his attitude. Later, the accused shifted his residence to Nacharam one Dr.GRR,J

year prior to the date of the death of her daughter and stayed in a rental

house. He did not even allow her to see her grand children. On the date of

incident, the accused informed her that Mahalaxmi consumed poison

mixing it with curd and also gave it to the children and all of them were

admitted in Gandhi Hospital. She rushed there but by that time her

daughter and granddaughter died. Her grandson was in coma and that she

lodged a complaint - Ex.P1 to the police.

15. In Ex.P1, she stated that her deceased daughter was harassed

by not only the accused but also by his brothers - Yadagiri, Prabhakar,

Manohar and their wives Dhanalaxmi and Padma. The police after

investigation deleted the names of the accused's brothers and their wives

from the charge sheet, as their investigation revealed that they stayed

independently and seldom visited the house of the accused and had nothing

to do with the death of the deceased. It was specified in the charge sheet

that none of the neighbours of the deceased stated about the harassment of

the deceased by them and there was no evidence about their involvement in

this case and their names were stated by the complainant in sweeping

manner without any basis.

16. In the cross-examination, PW1 admitted that prior to lodging

Ex.P1, no complaint was given by her to the police about any ill-treatment Dr.GRR,J

or harassment meted out by her daughter in the hands of the accused. She

also admitted that she had no personal knowledge as to the cause of the

death of the deceased and whether she was harassed or ill-treated by him.

17. One of the brothers of the deceased by name B. Naresh cited

as LW2 was examined as PW2. He also stated in a similar manner as that

of his mother that the accused started assaulting his sister for dowry and

used to torture her with cigarette butts. When they complained to the

members of Mahila Mandali, the accused promised to look after his wife

well, but continued ill-treating the deceased.

18. Thus, the evidence of these witnesses would disclose that they

have not given any specific details of the demand by the accused; when

such demands were made and when panchayat was conducted by the

Mahila Mandali members and the members who conducted the panchayat.

He also admitted in his cross-examination that the accused married his

sister when they were not in a position to give dowry and the accused

without demanding any clothes and gold married the deceased and after the

marriage, the accused and the deceased set up their family without

approaching them.

19. PWs.1 and 2 were residents of Parsigutta, Secunderabad. The

accused and the deceased lived there for one year in a rented house at Dr.GRR,J

Parsigutta, as per their evidence. PW1 visited her daughter often only

during the said period. Subsequently, the deceased and the accused lived at

Uppal for three years and at Nacharam for one year. PW1 admitted that she

had no personal knowledge as to the cause of death of the deceased and

also about the harassment and ill-treatment of the accused. PW2 also had

not stated about visiting the house of the deceased at Uppal or at Nacharam

and his sister complaining about any ill-treatment or harassment of the

accused for any demand of dowry.

20. One of the essential ingredients to prove the offence under

Section 304-B of IPC was that deceased must be subjected to cruelty or

harassment for or in connection with dowry soon before her death. The

expression 'soon before' would normally imply that the interval should not

be much between the harassment and the death of the deceased. There

must be a proximate and live link between the act of cruelty based on the

dowry demand and the death of the deceased. Except bald statements of

PWs.1 and 2, there was no cogent evidence before the Court to raise the

presumption that the death of the deceased was a dowry death.

21. Two other witnesses, the neighbours of the deceased at

Nacharam were cited as LWs.4 and 5 but only one of them cited as LW5

was examined as PW3. PW3 had not stated anything about the harassment Dr.GRR,J

meted out to the deceased in the hands of the accused. She only stated that

she was running a hotel nearby the house of the deceased and the accused,

and on seeing several people gathering in front of the house of the accused,

she went and found that the wife and children of the accused were

struggling for life and she came to know that the wife of the accused (D1)

mixed poison in the curd and consumed it and also gave it to her children.

She stated that she also found the accused in the house and thereafter, the

wife and children of the accused were shifted to Gandhi Hospital for

treatment and within half an hour D1 and D2 died. Except, the incident of

consuming poison by D1 and administering it also to her children nothing

more was stated by PW3. As such, PW3 was not even subjected to cross-

examination.

22. The evidence of the witness examined as PW4 was only to

prove the factum of conducting scene of offence panchnama in his

presence. There was nothing material in his evidence to prove the guilt of

the accused for the offence under Section 304-B of IPC. He only stated

that he observed a wooden stool, two glass tumblers and the curd spread

over the napa slabs in the house.

23. PW5 was the witness for the inquest panchnama conducted

over the bodies of D1 and D2 and this witness had not stated about any Dr.GRR,J

injuries found on the body of the deceased, Mahalaxmi. He only stated that

he was informed about their consumption of pesticide along with curd and

died. This witness had not even stated about the blood relatives of the

deceased raising suspicion about the death of the deceased and giving any

statement as such.

24. PW6 was the MRO who conducted the inquest. She stated

that as per the requisition of the police, she conducted the inquest

panchanama over the bodies of Mahalaxami and her daughter Divya in the

presence of the pachayatdars on 06.10.2005 at 11:00 AM at Gandhi

Hospital. She further stated that the panchayatdars opined that Mahalaxmi

consumed pesticide along with curd and also administered it to her children

resulting in her death and the death of her daughter, Divya. She further

stated that the pachayatdars opined that they consumed pesticide unable to

bear the harassment of the accused for additional dowry.

25. PW7 was the doctor who conducted Post Mortem Examination

over the bodies of D1 and D2. He stated that on 06.10.2005 on the

requisition of the MRO, he conducted Autopsy over the body of Smt. V.

Mahalaxmi and noted:

i. Contusion over scalp 2cm over mid parietal region. Red in colour.

ii. Contusion on scalp 3 x 2 cm over occipital region. Red in colour.

Dr.GRR,J

He also stated that he conducted autopsy of Divya and no injuries were

found on her body. He also stated that their viscera was sent for chemical

analysis. After receiving the chemical analysis report, issued opinion

stating the cause of death of D1 and D2 was due to consumption of Organo

Phosphate, insecticide poison.

26. The trial court mainly relied upon the evidence of this witness

to consider that the deceased, Mahalaxmi was subjected to ill-treatment in

the hands of the accused. The trial court observed that the contusion over

the head of the deceased would prove that the accused beat his wife prior to

her death and the same would establish that after the said incident only,

Mahalaxmi having fed up with her life consumed poison mixing it in curd

and gave it to her children and therefore, there was a reasonable nexus

between the harassment and ill-treatment of Mahalaxmi in the hands of the

accused. But the trial court lost track of the fact that all kinds of

harassment or ill-treatment are not covered under Section 304-B and it

needs specific evidence that the cruelty or harassment is with a demand for

dowry.

27. PWs.8 and 9 were the investigating officers who stated about

the investigation conducted by them. PW9 was the Assistant

Commissioner of Police, Malkajgiri at the relevant time and he stated that Dr.GRR,J

he visited Parsigutta at Secunderabad and verified with Women

Organisations about previous compromise, but none of them came forward

to give statement. Thus, there is no corroboration to the evidence of PWs.1

and 2 about any panchayat conducted by the Mahila Mandali members, to

know on what aspect the panchayat was conducted, whether it was for

dowry or for any other harassment. There is no cogent evidence to believe

that the deceased was subjected to cruelty or harassment in connection with

any demand for dowry soon before her death so as to convict the accused

for the offence under Section 304-B of IPC.

28. The trial court considering that the death of the deceased was

otherwise than under normal circumstances occurred within seven (07)

years of her marriage and considering the evidence of PWs.1 and 2 and the

evidence of doctor examined as PW7 convicted the accused. The

observations of the trial court that "the accused has not demanded any

dowry at the time of marriage and with all his knowledge about the status

of family of the accused, he married her. But it would not mean that the

accused always continue that behaviour. As per the evidence of PWs.1 and

2 it is very much evident that till the birth of his son, there is nothing wrong

with the accused. After birth of his son only there is change in the attitude

of the accused and started demanding dowry and harassing his wife. The Dr.GRR,J

same is continued even after the birth of daughter. Thus, till the birth of

children, the accused probably might not have any difficulty. But

subsequent to the birth of children he got the problems and started

demanding dowry and harassing his wife to bring from her mother and

brother". These observations are based on surmises and assumptions but

not on evidence on record. When there is no specific evidence attracting

the ingredients of Section 304-B of IPC, only considering the fact that the

deceased consumed poison and administered the same to her children and

that there were contusions on her head prior to her death could not be the

basis for convicting the accused for the offence under Section 304-B of

IPC.

29. It is imperative for the prosecution to prove that the deceased

was subjected to cruelty or harassment and there must be a proximate and

live link between the act of cruelty based on the dowry demand and the

death of the deceased. In the absence of any such evidence, it is not

permissible to take recourse to the legal presumption under section 113-B

of Indian Evidence Act, 1872 or to convict the accused under Section 304-

B of Indian Penal Code, 1860.

30. The prosecution failed to prove the guilt of the accused under

Section 304-B of IPC and the trial court erred in convicting the accused for Dr.GRR,J

the said offence. As such, point Nos.1 and 2 are answered against the

prosecution and in favour of the appellant.

31. In the result, the criminal appeal is allowed by setting aside the

conviction and sentence recorded against the accused in judgment dated

04.03.2011 in S.C.No.14 of 2007 on file of the Additional Metropolitan

Sessions Judge, Cyberabad convicting him for the offence under Section

304-B of IPC. Bail bonds of the accused shall stand cancelled and the fine

paid is liable to be refunded to the accused.

Miscellaneous petitions pending, if any, shall stand closed.

_____________________ Dr. G. RADHA RANI, J December 07, 2022 SS Dr.GRR,J

THE HON'BLE Dr. JUSTICE G. RADHA RANI

CRIMINAL APPEAL No.68 of 2013

December 07, 2022 SS