Kunchala Naresh Another vs The State Of A.P.
2022 Latest Caselaw 5797 Tel

           HON'BLE SMT. JUSTICE M.G. PRIYADARSINI


               CRIMINAL APPEAL No. 249 OF 2011



JUDGMENT:-


      Accused Nos. 1 & 2 in S.C.No.158 of 2010 preferred this

appeal challenging the judgment of the II Additional District &

Sessions   Judge    (Fast   Track   Court)   at   Sangareddy,    dated

08.03.2011.    Both the accused were charged for the offence under

Section 304-B of IPC for allegedly subjecting the deceased-

Kunchala Gouthami to cruelty demanding additional dowry and

causing her death within seven years of her marriage with A.1.

Through the said judgment, both the accused were convicted for

the offence under Section 304-B IPC and were sentenced to

undergo rigorous imprisonment for seven years each and to pay a

fine of Rs.200/- each, in default, to undergo simple imprisonment

for one month.


2.            The gist of the prosecution case leading to the

conviction of the appellants-accused, in brief, is as follows:


P.W.1 is the mother, P.Ws.2 & 4 are the cousins of the deceased.

P.W.3 is the friend of P.W.2. A.1 is the husband and A.2 is the

mother-in-law of the deceased. The deceased is none other than
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the daughter of maternal uncle of A.1. The marriage of deceased

with A.1 took place on 23.08.2002.      At the time of marriage,

Rs.40,000/- net cash and other household articles were given as

dowry to the accused. After the marriage, A.1 did not attend any

works and he, along with A.2, started harassing the deceased

physically and mentally with a demand of additional dowry of

Rs.1,00,000/- from her mother and necked her out from the

house.   In this connection, a panchayat was held at ECIL,

Hyderabad two months prior to the date of incident in the presence

of their caste elders. During the panchayat, the accused abused

the deceased in filthy language due to which, she felt upset. P.W.1

brought the deceased to Sangareddy twenty days back.            On

17.01.2010 in the evening hours, when nobody was present in the

house, vexed with the life, the deceased committed suicide by

hanging with saree to ceiling of the house and died. On the same

day, at 23:00 hours, P.W.1 presented Ex.P. 1 complaint with the

police, basing on which, the Sub-Inspector of Police, Sangareddy

Town Police Station, P.W.11, registered a case in Crime No. 21 of

2010 for the offence under Section 304-B IPC and took up further

investigation having dispatched the FIR, Ex.P.8, to all the

concerned. During the course of investigation, P.W.11 proceeded

to the scene of offence, recorded the statements of the witnesses,

prepared scene of offence panchanama under Ex.P.2, got the
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presence of P.W.13, Talsildar for conducting inquest panchanama,

got photographed the scene of offence and later the body was

subjected to Post-Mortem Examination. The visra of deceased was

sent to the FSL report.         He arrested both the accused on

19.01.2010 and produced them before the Court for remand.

Further investigation was taken over by P.W.12, the Sub-Divisional

Police Officer, Sangareddy, who after receipt of necessary reports

and completion of investigation, laid the charge sheet before the

concerned Magistrate against the accused for the offence under

Section 304-B IPC.      The accused denied the charges and claimed

for trial.


3.            The Judicial First Class Magistrate, Sangareddy, after

securing the presence of the accused and following the due

procedure contemplated under Sections 207 & 209 Cr.P.C.,

committed the case to the Court of Sessions observing that the

offences punishable under Section 304-B IPC is exclusively triable

by the Court of Sessions.


4.            In order to prove the guilt of the accused, the

prosecution examined P.Ws.1 to 13 and marked Exs.P.1 to P.8

besides exhibiting the Saree as material object.    On behalf of the

defense, D.Ws.1 & 2 were examined and Exs.D.1 and D.2 were

marked.      The trial Court after analyzing the oral and documentary
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evidence, convicted and sentenced both the accused as indicated

above for the offence under Section 304-B IPC.


5.            The learned counsel representing the appellants firstly

contended that in absence of any evidence that the deceased soon

before her death was subjected to cruelty, the conviction of the

appellant under Section 304-B IPC cannot at all be sustained.     He

further submitted that the trial Court completely overlooked the

most essential ingredient i.e., soon before her death the deceased

must have subjected to cruelty or harassment in connection with

demand for dowry, more particularly when the death of the

deceased was occurred at the house of P.W.1, but not in the house

of accused.     Lastly, it was contended that even admitting the

evidence on record, the demand, if any, was made about one

month before the death of the deceased even then by no stretch of

imagination it can be held that soon before her death the deceased

was subjected to cruelty or harassment in connection with the

demand for dowry. It is contended that the trial Court ought not to

have relied on the evidence of P.Ws.1, 2 & 4, as they are family

members and close relatives of the deceased. It is contended that

in the absence of any specific allegation that the appellants

subjected the deceased to cruelty, they cannot be convicted even
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for the offence under Section 498A IPC.   Therefore, he prays to set

aside the conviction and sentence imposed by the trial Court.


6.    On the other hand, the learned Additional Public Prosecutor

while trying to sustain the judgment of the trial Court, would

contended that although the P.Ws. 1, 2 & 4 are family members of

the deceased, their evidence is cogent and consistent as to the

harassment of additional dowry meted out to the deceased which

forced her to commit suicide and therefore, the appellants were

rightly convicted and sentenced for the offence under Section 304-

B IPC and the judgment of the trial Court needs no interference.


7.           In view of the above rival submissions, the point that

arises for consideration is:

             Whether the prosecution was able to bring home the

guilt of the appellants-accused for the offence under Section 304-B

IPC beyond all reasonable doubt and whether the conviction, as

recorded and the sentence awarded by the trial Court is liable to be

set aside or modified?


8.           As seen from impugned judgment, the trial Court

recorded the conviction mainly based on the evidence of P.Ws.1 to

6. Therefore, it is to be seen that whether the evidence of these

witnesses is sufficient to hold the conviction and sentence recorded
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by the trial Court.   For convicting the accused for an offence

punishable under Section 304B IPC, the following pre-requisites

must be met:

     1.

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

2. that such a death must have occurred within a period of seven years of her marriage;

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

4. that such a cruelty or harassment must have been for or related to any demand for dowry.

9. P.W.1 is the complainant who lodged Ex.P.1 complaint

with the Police. She stated that the marriage of A.1 with the

deceased was performed six years prior to the death of the

deceased and at the time of marriage, she gave cash of Rs.40,000/-

towards dowry apart from other articles. After the marriage, A.1

did not attend any work and used to come home in intoxicated

condition and used to harass her physically and mentally to bring

additional dowry of Rs.1,00,000/-. In this connection, two months

back, a panchayat was held at ECIL in the presence of caste elders,

wherein, the accused abused and beat the deceased. In her

deposition before the Court as P.W.1, she has reiterated the

contents of Ex.P.1 complaint regarding the harassment meted out

to the deceased by the accused in connection with demand to bring

more dowry of Rs.1,00,000/-. She stated that a panchayat was

held at ECIL in the presence of their caste elders, wherein the

brother and sister of A.1 beat her and the deceased. She stated

that the panchayat at ECIL was held just 20 days prior to the

death of deceased. But in her earlier version in Ex.P.1, she stated

that the panchayat at ECIL was held two months back. She

brought the deceased to her house 20 days prior to the incident

and at that time, the deceased informed her that the accused

harassed her for additional dowry. On 17.01.2010, while no one

was present in the house, the deceased hanged herself by tying her

saree to ceiling hook in her house and died. In the cross-

examination, P.W.1 has admitted that she used to visit the house

of accused now and then in a month, but the deceased did not

disclose anything about the harassment meted out by the accused.

She has stated in the cross-examination that when A.1 used to

reside at Karimnagar, the deceased went into Coma due to the

physical assault of A.1, but no complaint was lodged in that

regard. In the cross-examination, she stated that the panchayat

was held at ECIL one month prior to the death of deceased. She

admitted that in the panchayat held at ECIL, A.1 gave customary

divorce to the deceased before the elders and to that effect,

signatures were obtained on a divorce document.

10. P.W.2 is the sister's son of P.W.1 and cousin of

deceased. He is the friend of P.Ws.3 & 4. The testimony of P.W.2

asserts the version of P.W.1 to the effect of harassment meted out

to the deceased by A.1. He deposed that he witnessed A.1

harassing the deceased and the deceased informing him the

harassment meted out to her by the accused. He deposed about

A.1 beating the deceased while they were staying at Karimnagar

and the deceased going into Coma and her admission in the

hospital at Karimnagar. A panchayat was held in that connection

and 15 days thereafter, A.1 continued to beat the deceased. Since

the accused continued to harass the deceased, a panchayat was

held at ECIL, but he did not attend the said panchayat. Ten days

after the panchayat, the deceased was brought to the house of

P.W.1 at Sangareddy, where she committed suicide by hanging. He

admitted in the cross-examination that he was informed that the

deceased had taken customary divorce from A.1 in the panchayat

held at ECIL. He denied the suggestion that the accused did not

harass the deceased to bring additional dowry of Rs.1,00,000/-.

P.W.3 is the friend of P.W.2, who deposed that on the date of

incident while he was at his home, P.W.2 came and asked him to

accompany him to the house of P.W.1; that he went to the house of

P.W.1; broke open the doors and gained entry into the house; and

found the deceased in hanging position to a fan with a saree. On

enquiry, he was informed by P.W.2 that as there were disputes

between the couple regarding demand of additional dowry of

Rs.1,00,000/-, the deceased committed suicide. P.W.4, another

cousin of the deceased, deposed that after birth of two sons, the

accused started demanding Rs.1,00,000/- as additional dowry and

the said demand was not met with, A.1 used to beat the deceased.

Though he deposed as to the panchayats held at Karimnagar and

subsequently at ECIL in connection with the harassment meted

out by the accused to the deceased, he has admitted that he was

not present at those panchayats. P.W.5, an independent witness,

deposed as to his attending the marriage and supported the case of

the prosecution regarding payment of dowry amount, other

household articles to the accused and subsequently, the

harassment meted out to the deceased by them for bringing

additional dowry of Rs.1,00,000/-. He is the person who attend

the two panchayats held at Karimnagar and at ECIL. He too

deposed simply that panchayat was held at ECIL and as the

deceased fell ill subsequently, she was brought to Sangareddy and

that she stayed at Sangareddy for 20 days and later committed

suicide by hanging. P.W.6 is elder sister of P.W.1 and the mother

of P.Ws.2 & 4. She asserted the version of P.W. 1 regarding the

harassment meted out to the deceased by the accused for bringing

additional dowry of Rs.1,00,000/-. She deposed in similar lines

with that of P.W.1 as to the panchayats held at Karimnagar and

ECIL. In the cross-examination, she asserted that whenever she

visited the deceased, the deceased used to inform her that the

accused were harassing her. P.W.7 is the witness who speaks

about the panchanama conduced in his presence, seizure of saree,

police conducting inquest panchanama in his presence and his

signing on inquest panchanama. P.W.8 is the neighbour of P.W.1

and he is hearsay witness who speaks that he was informed by

P.W.1 that A.1 used to harass the deceased for money. P.W.9 is

the Civil Assistant Surgeon, who conducted autopsy over the dead

body of the deceased and opined that the deceased died due to

hanging. Ex.P.5 is the Post-Mortem Examination Report issued to

that effect. P.W.10 is the photographer. P.W.11 is the Sub-

Inspector of Police, who speaks about his receiving Ex.P.1

complaint from P.W.1, registering a case in Crime No. 21 of 2010

and issuing FIR, Ex.P8. P.W.12 is the investigating officer, who

deposed about the conducting of investigation and filing the charge

sheet against the accused. P.W.13, Tahsildar, deposed about his

conducting of inquest panchanama in the presence of P.W.7.

11. Ex.D.1 is wedding card and Ex.D.2 is the customary

divorce document allegedly obtained in the panchayat held at

ECIL. D.Ws. 1 & 2 were examined to prove that the deceased gave

customary divorce to A.1 in the panchayat held at ECIL before the

elders. The said evidence is not helpful to the case of the defence.

12. As seen from the above evidence of P.Ws.1 to 6, the

prosecution was able to establish that after the marriage, the

accused subjected the deceased to harassment and cruelty on the

demand of additional dowry of Rs.1,00,000/- as their evidence in

this regard is cogent, consistent and corroborative with each other.

However, the ingredient of cruelty is common to Sections

304B and 498A IPC, but the width and scope of two sections is

different, inasmuch as Section 304-B deals with cases of death as

a result of cruelty or harassment within seven years of

marriage, Section 498A has a wider spectrum and it covers all

cases in which the wife is subjected to cruelty by her husband or

relative of the husband which may result in death by way of

suicide or cause grave injury or danger to life, limb or health

(whether mental or physical) or even harassment caused with a

view to coerce the woman or any person related to her to meet

unlawful demand for property or valuable security.

13. In order to bring home the charge under Section

304B IPC, the prosecution must establish that the death of the

woman has been caused by burns or bodily injury or otherwise

than under normal circumstances within seven years of her

marriage and soon before her death, the woman is subjected to

cruelty or harassment by her husband or his relative. However, for

the purpose of conviction under Section 498A IPC, it is sufficient to

prove that the woman was subjected to cruelty, as elucidated in

the explanation appearing below substantive part of the section, by

her husband or his relative.

14. The trial Court, based on the above evidence of the

P.Ws.1 to 6, came to the conclusion that the cruelty, harassment

and demand of dowry was not stopped even after the panchayat at

ECIL which made Gowthami to commit suicide. However, as

discussed above, the prosecution witnesses have stated that the

last panchayat was held at ECIL 20 days/one month prior to the

date of death of the deceased and the deceased was brought to the

house of P.W.1, where the deceased committed suicide by hanging.

None of the prosecution witnesses deposed that subsequent to the

panchayat and while the deceased was at the house of P.W.1, there

was any demand by the accused or any abuse or assault by them

either physically or over phone. It is not even their case that at

any point of time the deceased called the accused over phone or

there is any specific instance in the interregnum period regarding

the harassment or cruelty by the accused that might have forced

the deceased to commit suicide. Such being the case, the above

findings of the trial Court that the cruelty, harassment and demand

of dowry was not stopped even after the panchayat at ECIL are

contrary to the evidence on record. In these circumstances, this

Court holds that the prosecution failed to make out the case

against both the accused for the offence punishable under Section

304-B IPC beyond all reasonable doubt and the accused are

entitled to benefit of doubt on this point. However, as observed

above, there is substantial evidence to show that an amount of

Rs.1,00,000/-was demanded as additional dowry by the accused

from P.W.1 and in that connection, they have harassed and caused

cruelty to the deceased in connection with which, panchayats were

held and the deceased was brought to the house of P.W.1.

Therefore, this Court is convinced that the prosecution succeeded

in proving that the appellants had subjected the deceased to

cruelty attracting the ingredients of Section 498-A IPC. Hence, this

Court is inclined to convict both the accused for the offence under

Section 498-A IPC by modifying the conviction imposed by the trial

Court under Section 304-B IPC.

15. In the result, the appeal is partly allowed. While setting

aside the conviction and sentence recorded by the trial Court

imposed on the appellants for the offence under Section 304-B IPC,

this Court convicts both the accused for the offence under Section

498-A IPC and they are sentenced to undergo rigorous

imprisonment for a period of two years and to pay a fine of

Rs.5,000/- each, and in default thereof, they are directed to

undergo simple imprisonment for two months. The period already

undergone by the accused shall be given set off.

Miscellaneous pending applications, if any, shall stand

closed.

______________________________ JUSTICE M.G.PRIYADARSINI

14th NOVEMBER, 2022

Tsr.