Telangana High Court

Kodem Ramu, Kothagudem., vs The State Of Telangana, Rep Pp., on 26 April, 2023

Bench: G.Anupama Chakravarthy

 HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY

                    Crl.A.No.238 OF 2017

ORDER :

This Criminal Appeal is filed against the judgment in

S.C.No.392 of 2012 dated 27.02.2017 on the file of V

Additional Sessions Judge, Kothagudem, wherein A-1 was

found guilty for the offence punishable under Section 304-B

of IPC and sentenced him to undergo rigorous imprisonment

for a period of seven years and acquitted A-2 and A-3 for the

aforesaid charge.

2. The brief facts of the prosecution are that the Sub-

Divisional Police Officer, Kothagudem laid charge sheet

against A-1 to A-3 before the III Additional Judicial

Magistrate of First Class, Kothagudem, in Crime No.126 of

2011 on the file of III town police station, Kothagudem, for

the offences punishable under Section 304-B of IPC.

3. The facts culled out of the charge sheet are that

Vengala Venkata Lakshmi and Vengala Venkateshwarlu are

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the parents of the deceased i.e., K.Hemalatha. The marriage

of the deceased was performed with A-1 at Kothagudem, who

used to drive an auto for his livelihood and they were blessed

with a daughter. The accused/A-1, his mother/A-2 and his

brother/A-3 used to quarrel with deceased demanding her to

bring additional dowry and to sell out the flat purchased on

her name. The deceased informed about the disputes on

phone to her parents who inturn approached P.W.1, who is the

maternal uncle of the deceased and P.W.4, relative of the

deceased and later a panchayat was held where the matter was

pacified. Inspite of it, A-1 to A-3 did not change their attitude

and continued to harass the deceased. The deceased and A-1

got separated from A-2 and A-3 and they started living

separately in a rental house of Kodem Lakshmi/P.W.7. On

08.08.2011, the mother of the deceased came to Kothagudem

in order to attend the death anniversary of her mother at the

residence of P.W.1. The deceased and A-1 also attended the

said function. A-1 left P.W.1 house after having lunch and

deceased returned home at 9 p.m. On the said day, the father

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of the deceased visited deceased house, stayed upto 11 p.m.

and thereafter left for Bhupalpally. P.W.7 observed the

arrival and departure of the father of the deceased.

Thereafter, both A-1 and the deceased quarreled on some

issue and P.W.7 being the elderly women warned A-1 and

slept. On 09.08.2011, at about 7 a.m., A-1 came out of the

house and informed P.W.7 that his wife committed suicide by

hanging and later informed the same to the parents of the

deceased and others. The parents of the deceased and P.W.1

to P.W.7, visited the scene of offence and they came to a

conclusion that A-1 might have killed the deceased or the

deceased might have committed suicide due to unbearable

harassment made by A-1 to A-3.

4. Basing on the complaint given by the mother of the

deceased, the Station House Officer, III Town, Kothagudem

registered a case in Crime No.126 of 2011, for the offence

punishable under Section 304-B of IPC against the

accused/A-1 to A-3.

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5. During the course of investigation, the Investigating

Officer has recorded the statements of prosecution witnesses,

conducted scene observation panchanama, crime detail report,

further conducted inquest over the dead body of the deceased

and forwarded the dead body of the deceased for post mortem

examination. He also effected arrest of the accused and

remanded them to judicial custody. After completion of

investigation, he laid a charge sheet against all the accused,

for the offence punishable under Section 304-B of IPC.

6. The trial Court has framed charge against A-1 to A-3

for the offence punishable under Section 304-B of IPC for

which the accused denied the charge and claimed to be tried.

7. On behalf of the prosecution, P.Ws.1 to 15 were

examined and Exs.P.1 to P.12 were marked. On completion

of prosecution evidence, A-1 to A-3 were examined under

Section 313 Cr.P.C and they denied incriminating evidence of

prosecution and reported no defence evidence.

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8. Basing on the oral and documentary evidence on

record, the trial Court has framed the following point for

determination:-

"Whether the prosecution has proved its case against accused A-1 to A-3 for the charge under Section 304-B of IPC beyond all reasonable doubt?"

9. Considering the oral and documentary evidence on

record, the trial Court found A-1 alone guilty for the offence

punishable under Section 304-B of IPC and sentenced him to

undergo rigorous imprisonment for a period of seven years

and acquitted A-2 and A-3 for the aforesaid charge.

10. Being aggrieved by the judgment of conviction, the

present appeal has been preferred by the appellant.

11. It is the contention of the learned counsel for the

appellant that the trial Court has relied only on the evidence of

P.Ws.1 to 4 and acquitted A-2 and A-3 and as such, A-1 is

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also entitled for benefit of doubt along with A-2 and A-3 as

they were acquitted for the same set of facts.

12. He further contended that the prosecution has miserably

failed to prove that soon before the death of the deceased, she

was subjected to harassment for demand of additional dowry.

Therefore, the benefit of doubt has to be extended to the

appellant. Further, the deceased was not the legally wedded

wife of the accused and no divorce was proved before the

Court as to the deceased with her first husband, as such, the

question of marriage between the accused and the deceased

was also not proved by the prosecution. Therefore, the

presumption under Section 113 of Indian Evidence Act does

not arise. It is also contended that no direct evidence was

found for the dowry harassment and that P.Ws.1, 2, 4 and 6

are relatives and interested witnesses of the prosecution and

the trial Court cannot give any weightage to their evidence for

convicting the accused. Therefore, prayed to set aside the

judgment and acquit the appellant.

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13. On the other hand, learned Assistant Public Prosecutor

contended that the trial Court has proved the guilt of the

appellant/accused beyond reasonable doubt and there is no

error or irregularity in the orders passed by the trial Court and

prayed to confirm the judgment.

14. The points that arose for consideration is that "whether

the judgment of the trial Court needs interference and whether

prosecution has proved the guilt of the appellant beyond

reasonable doubt."

15. It is relevant to mention the date of offence. The

incident took place in the intervening night of 8/9-08-2011.

Ex.P-3 is the report preferred by Vengala Venkata Lakshmi

who is the none other than the mother of the deceased. The

scribe of Ex.P-3 is P.W.8 and it was marked through him, as

parents of the deceased died prior to the trial.

16. In order to have better appreciation of facts, the

relationship between the parties is to be discussed.

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17. P.W.1 is the paternal uncle of the deceased, P.W.2 is

the cousin, P.W.3 is one of the neigbour, who turned hostile

and P.W.4 is the paternal uncle who partly turned hostile.

Exs.P-1 and P-2 are the statements of P.W.3 and P.W.4

recorded under Section 161 Cr.P.C., P.W.5 is the sister of the

deceased, P.W.6 is the owner of the house of P.W.1 and

P.W.7 is the owner of the house in which the deceased and the

accused lived together, prior to the death of the deceased.

P.W.8 is the scribe of Ex.P-3/complaint/report. P.W.9 is the

photographer, P.W.10 and 11 are the panch witnesses for the

inquest and scene of offence. P.W.12 is the Tahsildar, who

conducted inquest over the dead body of the deceased and

P.W.13 is the Doctor who conducted post mortem

examination on the dead body of the deceased. P.W.14 is the

Sub-Inspector of Police who registered the case and P.W.15 is

the Investigating Officer, who investigated the entire case and

laid charge sheet against A-1 to A-3.

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18. The evidence of P.Ws.1 and 4 who are the paternal

uncles of the deceased clearly disclose about the marriage that

took place between the accused and the deceased. Their

evidence also disclose that the deceased Hemalatha got

divorced from her 1st husband named Ravi and later she got

married to the accused No.1 and an amount of Rs.50,000/-, 4

tulas of gold, one house plot at Shamshabad was given as

dowry. Thereafter, the deceased joined A-1 and lead marital

life at her in laws place and gave birth to a female child.

Their evidence further disclose that after one year of their

marriage, the accused started harassing the deceased

demanding her to get additional dowry and also insisted her

for alienation of the plot which was on her name. In that

connection, a panchayat was held and matter was pacified.

But there was no change in the attitude of A-1. On

08.08.2011, the deceased and her husband went to the house

of P.W.1 on the eve of the death ceremony of his mother and

after the function, A-1 left the house after lunch and the

deceased was sent to her house through his son, in the night.

GAC, J Crl.A.No.238 of 2017

On the next day morning i.e., 09.08.2011 at about 7 a.m., A-1

along with his friend came on a motorbike and informed him

that the deceased has committed suicide by hanging herself to

a ceiling fan. On that, they all rushed to the house of the

accused and found the deceased in hanging position and her

legs touching to the ground. On seeing the position of the

deceased, P.W.1 suspected that the accused might have

committed the murder of the deceased.

19. As already stated supra, the parents of the deceased are

no more and as such, there is no evidence of the parents of the

deceased. Ex.P.3 is the report given by the mother of the

deceased which was scribed by P.W.8. The evidence of P.W.8

supports the case of the prosecution in all aspects as to the

contents of Ex.P-3/report. He specifically stated that at the

instance of the mother of the deceased, he scribed Ex.P-3

report and his signature was also found on Ex.P-3.

20. In order to prove the offence under Section 304 of IPC,

it is for the prosecution to prove mainly three ingredients i.e.,

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(1) the death of the deceased woman was caused by burns or

bodily injury or occurred otherwise than under normal

circumstances, (2) Such death should have occurred within

seven years of marriage; (3) deceased was subjected to cruelty

or harassment by the husband or any relative of the husband

in connection with the demand for dowry; and such

harassment must have committed to the deceased soon before

her death.

21. The evidence of P.Ws.1, 2, 4 and 5 disclose about the

marriage of the deceased with the accused, about the dowry

given by the parents of the deceased, including the

presentation of house plot. Their evidence also disclose that

deceased was demanded for additional dowry, subsequent to

her marriage and with regard to the same, panchayats took

place in the presence of P.Ws.1 and 4 and the matter has been

pacified. Their evidence further disclose that inspite of it, A-1

has not changed his attitude.

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22. Further, on 09-08-2011 at about 7 a.m. the accused first

informed P.W.7, who is the owner of the house about the

death of the deceased. P.W.7 is the independent witness. Her

evidence disclose that A-1 and the deceased used to live in her

house on rent. Admittedly, her evidence do not disclose about

the harassment or quarrels between the accused and the

deceased. Her evidence can be taken into consideration only

with rest to A-1 and deceased residing in the house. The

evidence of P.Ws.1, 4, 5 and 6 disclose that all the relatives of

the deceased came and witnessed the dead body of the

deceassed which clearly disclose that the deceased died in the

said house.

23. The other evidence in this case is that of the

photographer and panch witnesses/P.Ws.9 to 11. Their

evidence disclose that at the instance of the Police, they

visited the scene of offence, took photographs and the Police

have observed scene of offence, prepared crime detail report

and inquest report. Ex.P.4 are the photographs of the dead

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body of the deceased which are 18 in number. P.Ws.10 and

11 are the panch witnesses to the crime and inquest and their

signatures were got marked as Exs.5 to P.8, as they turned

hostile.

24. P.W.12 is the Tahsildar who conducted inquest over the

dead body of the deceased basing on the requisition of

Inspector of Police, III town Police station. His evidence

disclose that he came to know that the death of the deceased

occurred due to demand of additional dowry and harassment

of all the accused. The inquest report was marked as Ex.P.9

25. P.W.13 is the Doctor. His evidence clearly disclose

that he conducted post mortem examination on the dead of the

deceased and opined that the death of the deceased was

caused "Due to Asphyxia due to cardio respiratory arrest due

to hanging." Ex.P10 is the postmortem examination report.

As per his evidence, it can be construed that the death of the

deceased is not a natural one and it occurred otherwise than

natural circumstances.

GAC, J Crl.A.No.238 of 2017

26. It is relevant to mention that the deceased died within

two years of her marriage and there was demand for

additional dowry soon before her death. P.W.6 is son of

P.W.1 who dropped the deceased on the night of 08.08.2011,

after the function at their house. On the next day, they found

the dead body of the deceased in a standing position hanging

and feet touching the ground. Admittedly, there are minor

discrepancies in the evidences of the prosecution witnesses

but they did not go to the root of the case of the prosecution,

so as to interfere with the judgment of the trial Court.

Moreover, lacunas on the part of the prosecution cannot rule

out or brush away the entire case of the prosecution.

27. Learned counsel for the appellant relied on the

judgment of the Apex Court reported in Baijnath And Others

vs. State of Madhya Pradesh1, wherein it is held as follows:-

"Noticeably this presumption as well is founded on the proof of cruelty or harassment of the woman dead for or in connection with any demand for dowry by the person

(2017) 1 SCC 101

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charged with the offence. The presumption as to dowry death thus would get activated only upon the proof of the fact that the deceased lady had been subjected to cruelty or harassment for or in connection with any demand for dowry by the accused and that too in the reasonable contiguity of death.

Such a proof is thus the legislatively mandated prerequisite to invoke the otherwise statutorily ordained presumption of commission of the offence of dowry death by the person charged therewith.

The predicament of the prosecution is compounded further by the by its failure to prove, the precise cause of the death of the deceased. It is not clear as to whether the death has been suicidal or homicidal. It is also not proved beyond doubt, the origin and cause of the external injuries. Though the obscurity of the causative factors is due to the putrefaction of the body, the benefit of the deficiency in proof, logically would be available to the persons charged.

(40) In all, tested on the overall scrutiny of the evidence as a whole, in our comprehension, the conviction of the accused persons including the appellants herein on the basis of the materials on record would not be out of risk. To reiterate, the prosecution has failed to prove the crucial ingredient of cruelty and harassment by direct and cogent evidence thereby disentitling itself to the benefit of the statutory presumption available under Section 113B of the Act."

28. He also relied on the judgment of High Court of

Andhra Pradesh reported in G.M.Ravi alias G. Purushotham

vs. State of A.P.2 wherein it is held as under:-

2004 CRI.L.J.1861

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"All the witnesses in the present case, who have deposed, have only stated what according to them was told by the deceased to them with respect to the harassment meted out to her by her husband. None of these statements comes within the purview of Section 32 of the Evidence Act. Therefore, these statements in view of the judgment of the Supreme Court referred to above, are not at all admissible in evidence. There is not a single witness who has stated that he/she had personal knowledge of the harassment of the deceased by the appellant. Even the father of the deceased, who stated that the accused had demanded Rs. 10,000/- for the purpose of filing an appeal in the High Court, did not state that a demand for money was made to him by the accused. He stated that the demand was made on telephone by his own daughter, the deceased. According to him, the accused had asked his wife, that is the deceased, to demand money from him. Again this evidence is not admissible under Section 32 of the Evidence Act. Therefore, conviction under Section 498- A, IPC also cannot sustain and is set aside."

29. He further relied on the judgment of the Apex Court

reported in Ramaiah alias Rama vs. State of Karnataka3,

wherein it is held as under:-

"In addition to the aforesaid material aspects which are highlighted from the evidence of the prosecution witnesses, most important feature which is accepted by these witnesses is that in so far as the appellant individually is concerned, there was no demand of dowry by him. In the absence of any particular allegation against the appellant in this behalf, would be improper to convict the appellant under Section 498-A IPC.

2015 (1) ALD (Crl.) 196 (SC)

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22. We find that the High Court has ignored the aforesaid features which are elaborately discussed in the judgment of the trial court, culling from the depositions of the prosecution witnesses. The High Court, while accepting the version of the prosecution on this aspect, namely, Laxmi was harassed and humiliated because of demand of dowry made by the appellant, has embarked on the discussion which is general and non-specific in nature. Even if there is little evidence, that is too infinitesimal to convict the appellant, more so when that is not only self contradictory but also surrounded by other weighty circumstances that go in favour of the accused. Once we find that the demand of dowry and harassment on that account is not proved beyond reasonable doubt, question of invocation of Section 113 Evidence Act would not arise. We feel that the High Court has been totally influenced by the fact that Laxmi had died within 6 months of her marriage and it was an unnatural death.

23. No doubt, it was so. But only for this reason, the High Court could not have convicted the appellant by finding him guilty of offence under Section 304-B of IPC as well by primarily relying upon the provisions of Section 113- B of the Evidence Act.

24. We are conscious of the fact that it was an unfortunate demise of Laxmi who died within 6 months of the marriage. However, at the same time, whether her death was accidental as claimed by the defence or it was a suicide committed by Laxmi, is not clearly established. Had the allegations of demand of dowry and harassment of Laxmi were established thereby making it an offence under Section 498-A of IPC, things would not have been different. However, when we do not find dowry demand and harassment of Laxmi to be established, the inferences drawn by the High Court taking the aid of Section 113- B of the Evidence Act also deserve to be discarded. Section 113-B of the Evidence Act reads as under:

"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

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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." A plain reading of the aforesaid provision would demonstrate that to attract the presumption as to dowry death stated in the aforesaid provision, it is necessary to show that soon before her death, she had been subjected by such persons to cruelty or harassment for, or in connection with, any demand for dowry. When this essential ingredient has not been established in the present case, the question of drawing any presumption by invoking of the aforesaid provision would not arise."

30. The above said citations do not apply to the facts and

circumstances of the present case. In the above said case i.e.,

G.M.Ravi alias G.Purushotha's case (supra) dying

declaration was recorded whereas in the present case, there

was no dying declaration recorded as the deceased died at her

house by hanging, which is not a natural death. Therefore, the

question of recording dying declaration in this case would not

arise.

31. The evidence of P.Ws.1 to 4 clearly disclose about

demand of additional dowry made by the accused prior to the

death of the deceased and the harassment made by the

accused. Therefore, the above said citations are no way