Telangana High Court

Muthukuru Mal Reddy, Mahabubnagar Dt., vs The State Of A.P., Rep. By Pp.,And 3 ... on 15 February, 2024

Author: K. Lakshman

Bench: K.Lakshman, P.Sree Sudha

            HON'BLE SRI JUSTICE K. LAKSHMAN
                                 AND
           HON'BLE SMT. JUSTICE P. SREE SUDHA

              CRIMINAL APPEAL No.1023 OF 2014

JUDGMENT:

(Per Hon'ble Sri Justice K. Lakshman)

De facto - complainant filed the present Criminal Appeal

challenging the judgment dated 20.06.2012 passed by learned II

Additional District and Sessions Judge at Mahabubnagar in Sessions

Case No.471 of 2011 acquitting accused Nos.1 to 3 for the offence

under Section - 304B of the Indian Penal Code, 1860 (IPC).

2. Respondent Nos.2 to 4 herein are accused Nos.1 to 3 in the

aforesaid S.C. No.471 of 2011, while the appellant herein is the de

facto complainant, who is the father of the deceased - Rajeshwari.

3. For the sake of convenience, the parties are hereinafter

referred to as they were arraigned in S.C. No.471 of 2011.

4. The case of the prosecution is as under:

i) The deceased - Smt. Rajeshwari and accused No.1 fell in

love and the same was brought to the notice of elders of both parties,

and the elders of both parties agreed to perform their marriage;

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ii) Accordingly, on 03.02.10, the marriage of the deceased with

accused No.1 was performed at 'Shivalam' Temple in Nagireddipalli

Village.

iii) At the time of marriage, the parents of the deceased did not

give any dowry;

iv) After the marriage, the couple lived together happily for one

month and, thereafter, accused No.1, his mother - accused No.2 and

his elder brother - accused No.3 started harassing the deceased to get

Rs.50,000/- from her parents to drill a bore well so as to cultivate the

lands since no dowry was given at the time of marriage;

v) One week prior to the incident, the deceased went to her

parents house for the marriage of her sister and informed her parents,

PWs.1 and 2 about the harassment meted out to her by the accused.

Then, her father, PW.1 informed her that since he performed the

marriage of her sister, he is unable to pay the amount and assured her

that he would arrange the same after harvesting the paddy crop.

Three (03) days prior to the incident, the deceased went to her in-laws

house;

vi) On 09.04.2010, the accused lifted dung heap to their fields,

which is adjacent to the land of PW.1. During night between 8 to 9

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P.M., PW.1 went to his agriculture fields to watch the crop and

prevent damage from the wild boars wherein he found one lady

committed suicide by hanging to a babool tree at the bank of his

agriculture well. He went there and identified her as his daughter,

Rajeshwari.

vii) Thus, Accused Nos.1 to 3 harassed the deceased

demanding to get dowry amount of Rs.50,000/- from her parents. Due

to the constant harassment of the accused, the deceased committed

suicide by hanging on 09.04.2010 night.

viii) On the next day i.e., 10.04.2010 at 09.30 hours, PW.1

went to Bomraspet Police Station and gave a report. On receipt of the

report, the police registered a case in Crime No.31 of 2010 under

Section - 304B of IPC and investigated into the matter.

5. On completion of investigation, the police filed a charge

sheet against the accused for the offence punishable under Section -

304B and, thereafter, the case was committed to the Court of Sessions

which was taken on file vide S.C. No.471 of 2011 for the said offence.

6. The trial Court framed charge under Section - 304B of IPC

against both the accused. The accused denied the charge and pleaded

not guilty and prayed for trial.

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7. During trial, the prosecution has examined as many as 14

witnesses viz., PWs.1 to 14, marked Exs.P1 to P12 documents and

MO.1. No evidence was let in on behalf of the accused.

8. On completion of trial and on appreciation of evidence, both

oral and documentary, the trial Court found the accused not guilty of

the aforesaid charge framed against them and accordingly acquitted

them of the aforesaid charge.

9. Feeling aggrieved by the said acquittal, the de facto

complainant preferred the present appeal.

10. Heard Ms. P. Prashamsha, learned counsel representing Mr.

M. Achuta Reddy, learned counsel for the appellant - de facto

complainant and Mr. Muthyala Muralidhar, learned Additional Public

Prosecutor appearing for respondent No.1 - State. However, none

appears for respondent Nos.2 to 4 - accused.

11. This is not the appeal preferred by the State and it is

preferred by the de facto complainant. Ms. P. Prashamsha, learned

counsel appearing on behalf of the appellant would submit that there

is evidence let in by the prosecution to prove the guilt of the accused,

but the trial Court ignoring the same, on assumptions and surmises,

acquitted them. The trial Court did not consider the evidence of

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PWs.1 to 4, who are material witnesses to prove the guilt of the

accused. In fact, PW.1, father of the deceased, has specifically

deposed about the harassment faced by the deceased in the hands of

the accused and that out of such harassment, the deceased committed

suicide. PWs.2 to 4 also deposed on the same lines. Their evidence is

corroborated with the evidence of other prosecution witnesses. PWs.1

to 5 are rustic witnesses and there may be minor variations which

cannot tilt the prosecution case. Thus, the evidence of prosecution

witnesses cannot be discarded, but the trial Court without considering

the same, acquitted the accused. Therefore, the impugned judgment is

not on consideration of the entire evidence, both oral and documentary

and the same is liable to be set aside by recording conviction against

the accused.

12. On the other hand, learned Additional Public Prosecutor

would contend that there is no direct evidence to prove the guilt of the

accused including medical evidence. Therefore, the trial Court was

right in recording a finding to the effect that the accused were not

found guilty of the aforesaid offence.

13. In view of the aforesaid submissions, the points that arise

for consideration are:

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i) Whether the accused harassed the deceased for payment

of dowry amount of Rs.50,000/-?

ii) Whether the deceased died out of harassment meted out

by the accused? And

iii) Whether the impugned judgment acquitting the accused

is sustainable?

14. In order to attract the provisions of Section - 304B of IPC, a

presumption can be raised only on the proof of the following five

essentials:

a) Death of a woman took place within seven years of her marriage;

b) Such death took place not under normal circumstances;

c) The woman was subjected to cruelty and harassment by her husband or his relatives;

d) Such cruelty or harassment was for, or in connection with, any demand for dowry; and

e) Such cruelty or harassment was soon before her death.

15. Section - 304B of IPC which deals with dowry death and it

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

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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 purpose 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."

The provision has application when 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 relatives of her husband for, or in connection with

any demand for dowry. In order to attract application of Section -

304B of IPC, the essential ingredients are as follows:

i. The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance.

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ii. Such a death should have occurred within seven years of her marriage.

iii. She must have been subjected to cruelty or harassment by her husband or any relative of her husband.

iv. Such cruelty or harassment should be for or in connection with demand of dowry.

v. Such cruelty or harassment is shown to have been meted out to the woman soon before her death.

16. Section - 113-B of the Indian Evidence Act, 1872, is also

relevant for the case at hand. Both Section - 304B of IPC and Section

- 113-B of the Evidence Act were inserted as noted earlier by Dowry

Prohibition (Amendment) Act 43 of 1986 with a view to combat the

increasing menace of dowry deaths. Section - 113-B reads as follows:

"113-B. 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.

Explanation.--For the purposes of this section, 'dowry death' shall have the same meaning as in Section 304B of the Penal Code, 1860."

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In view of the above law and the entire evidence, both oral and

documentary available on record, this Court deals with the present

case.

Point No.1:

17. In view of the aforesaid rival submissions, when we

analyze the entire evidence on record, it is clear that PW.1 is not a

direct witness and he is only a circumstantial witness. Even in this

case, there are no direct witnesses to depose about the incident said to

have occurred. Further, PW.1 is the father, PW.2 is the mother and

PWs.3 and 4 are the sisters of the deceased, and they are all

circumstantial witnesses to the incident and so also PW.5.

i) The alleged incident occurred on 09.04.2010 between 8 and 9

P.M. PW.1, the father of the deceased, gave a report - Ex.P1 on

10.04.2010 at 09.30 A.M. to the police. In Ex.P1 - report, PW.1 did

not state about the alleged harassment meted out by the accused

persons to the deceased. He did not even state in that his daughter

informed him about the alleged harassment for dowry. What all he

stated in the complaint is that he performed the marriage of his

deceased daughter with accused No.1; that he did not provide any

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dowry; that they lived happily for one month after the marriage; that

the deceased came to his house one week prior to the alleged incident

to attend the marriage of her sister; that on 09.04.2010 at about 8 and

9 P.M. when he went to the agricultural field to protect the crops from

the wild boars, he found a lady person handing to a bubble tree beside

his Well; that when he went and saw her he identified that the lady is

his deceased daughter; that he suspects the accused for death of his

deceased daughter since he did not provide dowry at the time of

marriage.

ii) Whereas, PW.1 deposed in his evidence that the deceased

came to his house to attend the marriage of elder daughter, Mrs.

Ramadevi (PW.3) and in that occasion she informed him about the

demands made by the accused for dowry amount of Rs.50,000/- and

that he convinced her that he did not have money and that after receipt

of profits from crops in two months, he would give the dowry amount.

He further deposed that thereafter the deceased left his house after the

marriage of PW.3. Later the deceased informed him that as she has

not fulfilled the demands of accused Nos.1 to 3 about the dowry

amount of Rs.50,000/-, the accused harassed her physically, mentally

and threatened to kill her if she is not fulfilled their demand.

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iii) Perusal of Ex.P1 - complaint, there is no whisper about the

deceased informing PW.1 with regard to the alleged demand of dowry

by the accused and that the accused used to harass her for dowry

amount of Rs.50,000/- etc. This shows that PW.1 during his

examination in chief has improvised the said version, which was not

mentioned in Ex.P1 - report. PWs.2 and 3, mother and sister of the

deceased also deposed on the same lines as deposed by PW.1.

iv) However, PW.4, step sister of the deceased, deposed that

after marriage, the deceased, PW.1 and accused No.1 visited her

village at Tandoor, where a quarrel took place between PW.1 and

accused No.1. then, she questioned Pw.1 what was the dispute on

which PW.1 informed her that accused No.1 demanded the deceased

about the aforesaid dowry amount, then PW.1 convinced and

informed accused No.1 that he would provide the same after the

marriage of PW.3 and after receiving profits on crop. On the said day,

accused No.1 left her house with angry mood leaving the deceased

and PW.1. Again she volunteers that accused No.1 and deceased left

her house on that day. What all deposed by this witness (PW.4) was

not deposed by PWs.1 to 3 in their evidence. In fact, in the entire

evidence of PWs.1 to 3, they never deposed that accused persons

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harassed the deceased for the alleged dowry of Rs.50,000/-. What

they have deposed is that the deceased informed them that the accused

harassed her for demand of the aforesaid dowry amount. They never

stated directly that the accused demanded them to pay the dowry

amount and that they have harassed the deceased for the said dowry

amount.

v) PW.5, resident of Tandoor, deposed that he knows PW.1 and

his family. On 06.04.2010 while he was returning home and when he

reached near the Temple, he noticed that some discussions were going

on among PW.1, accused No.1 and the deceased. On enquiry, PW.1

informed him that accused No.1 demanded dowry through her

daughter to dug a bore well. This witness did not depose about the

presence of PW.4. Similarly, PW.4 did not depose about the presence

of PW.5.

vi) Thus, it is clear that there are contradictions and

inconsistencies between the contents of Ex.P1 - report and the

evidence of PWs.1 to 3 and there is drastic improvement in their

evidence-in-chief as mentioned above. There is also inconsistency

between the evidence of PWs.1 to 3 and the evidence of PW.4 in the

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manner stated above. PW.1 did not depose in his evidence about the

alleged demand of dowry by the accused either in the presence of

PW.4 or PW.5 and that they witnessed the same. In view of the

aforesaid contradictions and inconsistencies, their evidence cannot be

believed to be true. Thus, it is clear that by virtue of the evidence of

PWs.1 to 4, the prosecution failed to prove the demand of dowry by

the accused and that the accused harassed the deceased for such

dowry. Therefore, point No.1 is answered accordingly.

Point No.2:

18. In the case on hand, there is no direct evidence as to the

commission of offence by the accused. It appears that there are no

surrounding circumstances to be culled out so as to connect the

accused with the commission of offence. Prosecution witnesses did

not speak at least the last seen theory. PW.1, the father of the

deceased, who saw the deceased hanging to a babool tree, on

09.04.2010 during night hours, also did not speak that he saw the

accused at the surroundings of the scene of offence on the date of

incident.

i) There is no other evidence to speak about last seen theory.

As stated above, there is no evidence to speak that the accused were

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present in the vicinity of the scene of offence on the date of alleged

incident. Even the circumstantial evidence did not support the case of

prosecution to connect the accused for the aforesaid offence.

ii) Now, coming to the medical evidence, PW.10, the doctor,

who conducted autopsy over the dead body of the deceased, deposed

that on receipt of requisition at 10.00 P.M. on 10.04.2010 from the

Bomraspet Police Station, he conducted autopsy on the dead body of

the deceased. On his examination, he found external injuries which

are as under:

"A rope marking present round the neck extending from

chin to right up to left mandible angle 2x2.½ inch width and

quarter inch depth marking with subcutaneous hemorrhage

present."

According to him, the approximate time of death was 18 to 20 hours

before the PME and cause of the death is asphyxia death due to

hanging by fracture of right greater cornu of hyoid bone.

iii) In view of the aforesaid medical evidence, it is clear that the

deceased died due to hanging. There is no evidence on record to show

that either she hanged herself on account of harassment she faced at

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the hands of the accused or the accused provoked her to commit

suicide. Thus, it can be presumed that the accused did not commit the

offence alleged against them. Therefore, this point is answered

accordingly.

Point No.3:

19. The trial Court referring to the evidence, both oral and

documentary available on record observed that there was no direct

evidence that accused Nos.1 to 3 harassed the deceased for want of

dowry. It also observed that the deceased died unnatural by

committing suicide by hanging. PW.14 - Investigating Officer has not

taken care to investigate and collect the evidence to substantiate the

charge levelled against the accused and accordingly arrived at the

finding that the prosecution failed to prove the guilt of the accused

persons.

i) It is settled law that though there is no direct evidence/eye

witness to any incident, conviction can be recorded basing on

circumstantial evidence, provided the circumstances relied upon by

the prosecution forms a complete chain, whereas, in the present case,

prosecution failed to prove the same. The Apex Court on several

occasions categorically held that as per criminal jurisprudence, let

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hundred culprits can escape, but one innocent should not be punished.

Benefit of doubt should always be given to the accused.

ii) In Jafarudheen v. State of Kerala 1, the Apex Court held as

under:

"25. While dealing with an appeal against acquittal by invoking Section 378 of the Cr.PC, the Appellate Court has to consider whether the Trial Court's view can be termed as a possible one, particularly when evidence on record has been analyzed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the Appellate Court has to be relatively slow in reversing the order of the Trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."

iii) The Apex Court reiterated the aforesaid principle in Ravi

Sharma v. State (Government of N.C.T. of Delhi) 2.

iv) In Harbans Singh v. State of Punjab 3, the Apex Court

held as under:

. 2022 SCC Online SC 495

. (2022) 8 SCC 536

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" In many cases, especially the earlier ones, the Court has in laying down such principles emphasised the necessity of interference with an order of acquittal being based only on "compelling and substantial reasons" and has expressed the view that unless such reasons are present an appeal court should not interfere with an order of acquittal. (Vide Suraj Pal Singh v. State [1952 SCR 194]; Ajmer Singh v. State of Punjab [(1952) 2 SCC 709 : 1953 SCR 418]; Puran v. State of Punjab [(1952) 2 SCC 454 : AIR (1953) SC 459] ).

The use of the words "compelling reasons"

embarrassed some of the High Courts in exercising their jurisdiction in appeals against acquittals and difficulties occasionally arose as to what this Court had meant by the words "compelling reasons". In later years the Court has often avoided emphasis on "compelling reasons" but nonetheless adhered to the view expressed earlier that before interfering in appeal with an order of acquittal a court must examine not only questions of law and fact in all their aspects but must also closely and carefully examine the reasons which impelled the lower courts to acquit the accused and should interfere only if satisfied, after such examination that the conclusion reached by the lower court that the guilt of the person has not been proved is unreasonable.

. AIR 1962 SC 439

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(Vide Chinta v. State of Madhya Pradesh, Criminal Appeal No. 178 of 1959); Ashrafkha Haibatkha Pathan v. State of Bombay, Criminal Appeal No. 38 of 1960).

9. It is clear that in emphasising in many cases the necessity of "compelling reasons" to justify an interference with an order of acquittal the court did not in any way try to curtail the power bestowed on appellate courts under Section 423 of the Code of Criminal Procedure when hearing appeals against acquittal; but conscious of the intense dislike in our jurisprudence of the conviction of innocent persons and of the fact that in many systems of jurisprudence the law does not provide at all for any appeal against an order of acquittal the court was anxious to impress on the appellant courts the importance of bestowing special care in the sifting of evidence in appeal against acquittals. As has already been pointed out less emphasis is being given in the more recent pronouncements of this Court on "compelling reasons". But, on close analysis, it is clear that the principles laid down by the Court in this matter have remained the same. What may be called the golden thread running through all these decisions is the Rule that in deciding appeals against acquittal the court of appeal must examine the evidence with particular care, must examine also the reasons on which the order of acquittal was based and should interfere

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with the order only when satisfied that the view taken by the acquitting Judge is clearly unreasonable. Once the appellate court comes to the conclusion that the view taken by the lower court is clearly an unreasonable one that itself is a "compelling reason" for interference. For, it is a court's duty to convict a guilty person when the guilt is established beyond reasonable doubt, no less than it is its duty to acquit the accused when such guilt is not so established."

v) In Champaben Govindbhai v. Popatbhai Manilal 4, the

Apex Court held as under:

"12. It is well settled that in an appeal against acquittal the appellate court does not reverse the finding of acquittal if the court while granting acquittal has taken a reasonable or a possible view on the evidence and materials on record. Law is equally well settled that if the view taken by the court granting acquittal is perverse or shocks the conscience of the higher court, the finding of acquittal can be reversed.

13. In the instant case, the High Court as the first appellate court has a duty to consider in detail the material on record and also should appreciate the evidence very carefully before affirming the order of acquittal given by the trial court.

. (2009) 13 SCC 662

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14. The counsel for the respondents referred to the decision of this Court in Chandrappa v. State of Karnataka [(2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325] to put forward the argument that an appellate court must bear in mind that in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having been acquitted, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

5. In this connection we may refer to the principles summarised in para 42 at SCC p. 432 of the judgment in Chandrappa case and they are extracted:

"42. ... (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient

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grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal.

Such phraseologies are more in the nature of 'flourishes of language' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

Also, if two reasonable views are possible on the basis of the evidence on record and one favourable to the accused has been taken by the trial court it

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ought not to be disturbed by the appellate court (para 44)."

vi) As discussed supra, the trial Court on consideration of the

entire evidence, both oral and documentary, gave a finding that the

prosecution failed to prove guilt of the accused. It is a reasoned

judgment and well-founded. This point is answered accordingly.

20. In view of the aforesaid discussion, we find that no

evidence was let in by the prosecution against the accused persons in

commission of the aforesaid offence. We are of the opinion that the

trial Court was justified in coming to a conclusion that the prosecution

failed to establish the charge for the offence under Section - 304B of

IPC against the accused persons and thereby recording a finding that