Smt. Tachadishetty Vijayalaxmi, vs The State Of A.P., Rep By Pp.,
2022 Latest Caselaw 3697 Tel

            HON'BLE SRI JUSTICE K.SURENDER

       CRIMINAL APPEAL Nos.1371 & 1372 OF 2006
COMMON JUDGMENT:
1.

Criminal Appeal No.1371 of 2008 is preferred by the

appellant/A4 aggrieved by the conviction and sentence of

simple imprisonment for a period of one month and fine of

Rs.1,000/-, in default, to suffer simple imprisonment for a

period of 15 days under Section 498-A of IPC.

2. Criminal Appeal Nos.1372 of 2008 is preferred by the

appellants/A1 to A3, aggrieved by the conviction and sentence

of rigorous imprisonment for a period of seven years under

Section 304-B of IPC.

3. Since both the Criminal Appeals are by accused in

S.C.No.315 of 2006 questioning Judgement dated 14.11.2008

passed by the learned IV Additional Sessions Judge, Ranga

Reddy District (for short 'the learned Sessions Judge'), they are

being heard together and disposed off by way of this Common

Judgment.

4. The appellants 2 and 3 in Criminal Appeal No.1372 of

2008 expired and the death certificates are filed. Accordingly,

the appeal abates as against the appellants 2 and 3.

5. The case of the prosecution is that the daughter of P.W.1,

the deceased, who was married to the 1st appellant in the year

1999. The marriage was performed by giving dowry of Rs.2.00

lakhs and 20 tulas of gold and other house hold articles worth

Rs.1.00 lakh. The deceased and A1 lived together and there

was no complaint for about six months. However, the

deceased requested P.W.1 to give Rs.50,000/- to enable 1st

appellant to do business in computers. As P.W.1 expressed

his inability to provide the said amount, his deceased

daughter cried and informed that her husband and in-laws are

harassing her. Thereafter, the deceased went to P.W.1's house

and requested to register 50 sq.yds of site in her favour, failing

which, A1 refused to live with her.

6. It is further alleged that the appellants were harassing

the deceased stating that she was unable to conceive. She

called before Vinayakachavithy festival and informed P.W.1

that the accused were beating her and requested to take her

home. In the meanwhile, P.W.1 received phone call stating

that the deceased was acting in a weird manner and expressed

doubt that she may harm herself. P.Ws.1, 2 and 3 then went

to see the deceased, by which time, she died by consuming

poison.

7. The prosecution, to substantiate the allegations against

the appellants examined P.Ws.2 and 3, who are sisters of the

deceased and P.W.4, grand son of P.W.1.

8. The learned counsel for the appellants would submit that

the learned Sessions Judge erred in convicting the accused 1

to 3 for the offence under Section 304-B of IPC and A-4 under

Section 498-A IPC when omnibus allegations were made.

There is absolutely no evidence whatsoever to substantiate

that soon before the death of the deceased she was subjected

to any kind of harassment to attract the offence under Section

304-B of IPC. For the said reason, the finding of guilt against

the appellants, have to be reversed and acquitted.

9. On the other hand, learned Assistant Public Prosecutor

would submit that there was continuous harassment even

according to the prosecution witnesses. They stated that

dowry was given at the time of marriage and also

subsequently, the demand for registration of plot led to

constant harassment by the appellants and finally leading to

the deceased committing suicide, unable to bear the said

harassment. In the said circumstances, the well reasoned

judgment of the learned Sessions Judge cannot be interfered

with.

10. The Hon'ble Supreme Court in the case of Girish Singh v.

State of Uttarakhand1, held as follows:

"33. Thus, it can be seen that the offence created by Section 304-B requires the following elements to be present in order that it may apply:

(I) Within 7 years of the marriage, there must happen the death of a woman (the wife).

(II) The death must be caused by any burns or bodily injury. OR The death must occur otherwise than under normal circumstances. (III) It must be established that soon before her death, she was subjected to cruelty or harassment.

(IV) The cruelty or harassment may be by her husband or any relative of her husband.

AIR 2019 Supreme Court 4529

(V) The cruelty or harassment by the husband or relative of the husband must be for, or in connection with, any demand for dowry.

34. Section 304-B treats this as a dowry death. Therefore, in such circumstances, it further provides that husband or relative shall be deemed to have caused her death. Section 113-B of the Evidence Act, 1872 provides for presumption as to dowry death. It provides that when the question is whether the dowry death, namely, the death contemplated under Section 304-B IPC, has been committed by a person, if it is shown that soon before her death, the woman was 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 the elements of Section 304-B."

11. P.Ws.1 to 4, however, stated that the allegations which

they have stated regarding demand for additional dowry was

known to them only through the deceased and was never

asked by the appellants herein directly.

12. The allegation of demand for Rs.50,000/- was not made

directly by the appellants even according to P.W.1 and the said

amount was not given. The allegation regarding the demand of

plot was, according to P.W.1 to be registered in the name of

the deceased. The deceased had asked her father to register

the plot in her favour, which was at the instance of the

appellants herein. However, there is no direct demand by the

appellants herein that was made to P.W.1 for registration of

plot in the name of the deceased. The appellants were also

harassing the deceased for not bearing the children. Both the

allegations are omnibus in nature without giving any specific

details. Further the witnesses have spoken that it was the

deceased who had informed about such harassment.

13. The prosecution has failed to proximately connect any

kind of demand that resulted in the deceased committing

suicide. To convict an accused under Section 304-B of IPC, it

is essential for the prosecution to prove that there was

harassment soon before her death. Though, no specific period

or length of time could be determined to say what would be

'soon before the death'. However, the factor of harassment

soon before death would depend upon the circumstances of

each case and have to be determined on the basis of the

allegations in the individual case.

14. In the present case, the witnesses have not stated

anything, except stating that there was harassment for

registration of plot and that she was unable to conceive, as

such, it cannot be said that there was any kind of harassment

soon before the deceased committing suicide. For the said

reasons, the prosecution has failed to prove an offence under

Section 304-B of IPC against the 1st appellant, however liable

under section 498A of IPC.

15. The allegation regarding the demand for additional dowry

for Rs.50,000/- and also asking for registration of plot in the

name of the deceased would amount to cruelty, for which

reason, the conviction under Section 498-A of IPC is

maintained against A-1 and A4.

16. In the result, the conviction imposed by the learned

Sessions Judge, in S.C.No.315 of 2006 vide judgment dated

14.11.2008, against the appellant-A1 for the offence under

Section 304-B of IPC is set aside and the offence under Section

498-A of IPC against A4 is maintained. A-1 is found guilty for

the offence under section 498A IPC. Since the offence had

taken place in the year 2005, the sentence of imprisonment for

the offence under Section 498-A of IPC against A4 is modified

to that of the period which the A4 has already undergone. A-1

is also sentenced to the period already undergone. However,

maintaining the sentence of fine and the default conditions

stipulated there under.

17. With the above modification, the Criminal Appeals are

partly allowed. As a sequel thereto, miscellaneous

applications, if any, shall stand closed.

__________________ K.SURENDER, J Date: 14.07.2022 kvs

HON'BLE SRI JUSTICE K.SURENDER

CRIMINAL APPEAL Nos.1371 & 1372 OF 2008

Date: 14.07.2022.

kvs