THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.442 of 2008 30-12-2014 BETWEEN:
Devaraakonda Lokanatham & 2 Others AND State of A.P., Rep. by Public Prosecutor, High Court of A.P., Hyderabad …..Appellants …..Respondent THIS COURT MADE THE FOLLOWING ORDER:
THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.442 of 2008 JUDGMENT:
This Criminal Appeal is filed by A.1 to A.3 challenging the judgment dated 04.04.2008 passed by VI Additional District and Sessions Judge (Fast Track Court), Tirupati in S.C.No.179 of 2007, whereby the learned Sessions Judge found the appellants guilty for the offences under Sections 498-A and 304-B IPC and sentenced them to undergo R.I. for two years and to pay a fine of Rs.1,000/- each, in default, to undergo S.I. for three months for the offence under Section 498-A IPC. They were further sentenced to undergo R.I. for seven years for the offence under Section 304-B IPC. Both the sentences were directed to run concurrently. However, A.4 and A.5 were found not guilty of the charges and were acquitted by the trial Court.
The brief facts of the case of the prosecution are as follows:
A.2 and A.3 are parents of A.1 and A.4 is the elder sister of A.1 and A.5 is the husband of A.4. One D.Pushpalatha (hereinafter referred to as ‘deceased’) is the daughter of complainant-P.W.1. Her marriage was performed with A.1 on 21.5.2004. After the marriage, the deceased joined her husband-A.1 and started leading her matrimonial life with him in their house located in Kola Street, Tirupati. From the date of the marriage the accused were under the impression that the dowry given to them was insufficient and on that count they started harassing the deceased and demanded to bring additional dowry of Rs.50,000/- from her parents. Since P.W.1 failed to meet out the demand of accused, they were harassing the deceased both physically and mentally. While so, the deceased was blessed with a male child on 28.1.2005 in her parental home. When the child was at the age of 5th month, P.W.1 dropped the deceased and child at her matrimonial house and gave Rs.20,000/- to purchase gold chain to the child and to meet the expenses for naming ceremony function. The accused did not allow the parents of deceased to come to their house and they did not invite them for ear-performing ceremony function. On 20.12.2005, in the mediation held before the elders wherein P.W.1 agreed to provide additional dowry of Rs.50,000/- to the accused within a year. Even then, the accused continued to harass the deceased mentally and physically. While so, on 8.1.2006, at about 10.00 a.m., A.1 to A.4 picked up a quarrel with the deceased and on the instigation of A.2 to A.4, A.1 beat the deceased over her face with hands. Due to intolerable harassment of the accused, the deceased went into a room and committed suicide with the help of her saree. She died on the way while she was being shifted to SVRR Hospital, Tirupati. Upon the complaint given by P.W.1 under Ex.P.1, police registered a case in Crime No.4 of 2006 initially, under Section 174 Cr.P.C., but later on, section of law was altered to Section 304-B IPC. After completion of investigation, police laid charge sheet against the accused for the offence punishable under Section 304-B and 498-A IPC.
In order to bring home the guilt of the accused, prosecution examined P.Ws.1 to 12 and marked Exs.P.1 to P.14. On behalf of defence, D.W.1 was examined and Exs.D.1 to D.6 were marked.
After evaluating the entire evidence brought on record, the trial Court convicted and sentenced the appellants as aforementioned.
Heard the learned counsel for the appellant and learned Additional Public Prosecutor and perused the material brought on record.
P.W.1-complainant, the father of the deceased deposed before the Court regarding the performance of marriage of deceased with A.1 and his giving a sum of Rs.2,50,000/- to the accused towards dowry. He deposed that the deceased lead marital life happily for about one month. He deposed that the deceased used to inform him over phone about the harassment being meted out by the accused demanding additional dowry amount. Even after his agreeing to pay Rs.50,000/- towards additional dowry within one year, the accused continued to harass the deceased. Later, he went to the house of the accused accompanied by L.Ws.12 and 13 and they convinced the accused that he (P.W.1) would pay the agreed amount of Rs.50,000/- after one month. Ten days thereafter i.e. on 8.1.2006 at about 11.00 a.m. A.1 telephoned and informed him that the deceased died by committing suicide by hanging herself. On his enquiry, the neighbours, who gathered at the house of accused, informed him that a galata took place between the deceased and accused. Immediately, he approached the police and presented Ex.P.1 complaint against the accused. Though he was cross- examined at length, nothing contra is elicited.
P.W.2, another daughter of P.W.1 and sister of deceased deposed before the Court regarding the marriage that took place between the deceased and A.1. She further deposed that whenever she used to visit the house of accused to see the deceased, the accused used to ask the deceased not to speak with P.W.2 unless deceased gets an amount of Rs.50,000/- from her parents. On 8.1.2006 on receipt of telephonic call regarding the death of deceased, she rushed to the house of accused. On her enquiry, neighbours informed her that a galata took place between the accused and the deceased during morning hours on that day. However, in the cross-examination, she admitted that she did not inform the said fact to the police in her statement. She also admitted that she did not state before the police that whenever she visited the house of the accused to see the deceased, A.1 to A.3 used to ask the deceased not to speak with her until and unless she gets an amount of Rs.50,000/- towards additional dowry from her parents.
P.W.3 is the Operation Executive in 108 emergency vehicle, Tirupati, who deposed that on 8.1.2006 at about 10.00 a.m., he received a message from 108 Centre, Hyderabad to the effect that they have received a caller identified phone from one D.Lokanadham stating that his wife was in serious condition at Kola Street, Tirupati and directed him to attend the same.
Immediately, he proceeded with ambulance to the house of the accused with a stretcher and took the deceased to SVIMS Hospital after giving her first aid and doctor at the hospital examined and declared the deceased dead. P.W.4, a neighbour of the accused was examined by the prosecution to prove that a galata took place on the date of the incident soon before the death of deceased, but she did not support the case of the prosecution and therefore, she was declared hostile by the prosecution. To prove the mediation took place between P.W.1 and the accused regarding the payment of additional dowry amount of Rs.50,000/-, P.W.5 was examined by the prosecution. He deposed that on 20.12.2005 to settle the dispute between P.W.1 and the accused, he went to the house of accused accompanied by P.W.1 and his wife and there he mediated the matter with the accused, wherein P.W.1 agreed to pay an amount of Rs.50,000/- to the accused after one month.
P.W.6 is the attender working in SVIMS Hospital, Tirupati. He deposed that on 3.2.2006 at about 11.30 a.m. while he was at his house, A.1 to A.4 came to him and asked him to settle the dispute arose between him and P.W.1 with regard to the demand of additional dowry being made by them. Then he made them to sit at his house and went to the office of Deputy Superintendent of Police and revealed the same to him and his statement was reduced into writing as in Ex.P.3. P.W.7 is the mediator to the inquest report-Ex.P.4 and he deposed that after inquest, the mediators opined that the deceased was murdered by her in-laws and other relatives. P.W.8, who is a witness to the arrest mahazar, did not support the case of the prosecution and therefore, he was declared hostile. P.W.9 is the then Mandal Executive Magistrate, who conducted inquest over the dead body of the deceased and issued Ex.P.4 inquest report. He deposed that on 8.1.2006 on receipt of requisition from the police, he conducted inquest over the dead body of the deceased on 9.1.2006 at the house of accused in the presence of Panchayatdars i.e.
P.W.7 and others under the over of inquest report Ex.P.4. After completion of inquest, the panchayatdars opined before him that the deceased died due to the harassment meted out in the hands of her in-laws.
P.W.10 is the doctor, who conducted autopsy over the dead body of the deceased and issued Ex.P.5 post-mortem report. He found the following injuries over the dead body of the deceased:
“1. contusion of 2 x 2 cm of inner aspect of lower lip in midline. Brownish red in colour.
2. abrasion of 6 x 6 cm over right side of the neck, 2 cm below right ear. Brown in colour.
3. abrasion of 3 x 3 cm over left side of the neck, 2 cm below left ear. Brown in colour.
4. contusion of 2 x 2 cm over right side of neck, 2 cm below the ear, underneath the wound No.2. Brownish red in colour.”
The doctor issued final report in Ex.P.6 opining that no opinion could be given regarding the cause of death as the wounds mentioned in the post- mortem certificate were not sufficient to cause death.
P.W.11 is the Sub-Inspector of police, who received Ex.P.1 complaint on 8.1.2006 at about 6.00 p.m. and registered a case and issued F.I.R. He observed the scene of offence on 9.1.2006 and drafted observation mahazar under Ex.P.10 and sent the dead body to S.V. Medical College, Tirupati for conducting post-mortem examination. He examined and recorded the statements of witnesses and altered the section of law from Section 174 Cr.P.C. to Section 304-B IPC. P.W.12 is the investigating officer. He deposed about his conducting investigation and recording the statements of witnesses. He deposed that on 3.2.2006 P.W.6 presented a report as in Ex.P.14 stating that A.1 to A.4 approached him for mediation and on the said and on the said information he along with his staff accompanied by mediator-
P.W.8 reached the house of P.W.6 and arrested A.1 to A.4. He deposed that since the doctor-P.W.10 did not furnish the cause of death in the post-mortem report Ex.P.5, he issued a questionnaire to him as under Ex.P.7 and obtained a reply Ex.P.8 from him. After completion of investigation, he laid the charge sheet against the accused.
In the present case, it is rather curious to observe the medical evidence. P.W.10-doctor, who conducted autopsy over the dead body of the deceased in his final opinion under Ex.P.6 opined that no opinion could be given regarding the cause of death as the wounds mentioned in the post- mortem certificate were not sufficient to cause death. Since in the post- mortem certificate itself, the doctor observed some injuries on the body of the deceased, the investigating officer-P.W.12 issued a questionnaire to the doctor as under Ex.P.7. The questionnaire reads thus:
“1. If the injuries found on the person of the deceased are not sufficient to cause death, if so, what are the causes for the death?
2. Basing on the injuries found in and around the face of the deceased, whether the death of the deceased was caused by suffocation?
3. If so, whether the suffocation was done by using any soft material or not in suicidal or homicidal or accidental?”
In reply to Ex.P.7 questionnaire, the doctor furnished the following answers under Ex.P.8:
“1. xxxxx
2. xxxxx
3. xxxxx
4. The contusions and abrasions were brownish red and brown respectively in colour indicates that the wounds are aged not less than 24 hours. As such those wounds were not responsible for the death of the deceased.
5. The death was declared in SVIMS Hospital. Had the death of Mrs. C.Pushpalatha is due to smothering, it should have been an instantaneous death rather than death taking place at SVIMS Hospital, that too long time after the alleged incidence of smothering.
6. The chemical analysis report did not reveal the presence of any poisonous substance as such the death of Mrs. C.Pushpalatha, from poisoning is eliminated.
7. As the wounds noticed at postmortem examination are aged not less than 24 hours the death due to trauma is ruled out.
8. In S.C.No.47/06 & Cr.No.168/04, P.S.Narayanavanam, the Investigating Officer, has filed charge sheet, conducted the trial in the Court of Asst.Sessions Judge, Puttur, without knowing the cause of death and the accused was acquitted of the charge. In Cr.No.145/04 of Alipiri P.S. charge sheet was filed U/S 304 (A) and 201 IPC and in the court, PRC No.59/2005 U/S 304 and 201 IPC, and the trial was commenced without the cause of death.
The SDPO is requested to state the law which stipulates that the doctor has to give invariably the cause of death after postmortem examination.”
This Court perused the evidence of prosecution witnesses. Taking into consideration the entire evidence and also the unrebutted evidence of P.Ws.1 and 2, it does not disclose any offence to attract an offence under Section 304-B IPC. Section 304-B IPC runs as follows:
“304B (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: xxxxx (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.”
Mere death of a person within seven years of marriage would not attract an offence under Section 304-B IPC and the Court cannot invoke the presumption under Section 113-B IPC unless and otherwise the following ingredients are proved.
(a) That death of a woman was caused by burns or bodily injury or had occurred otherwise than under normal circumstances;
(b) Such death should have occurred within 7 years of her marriage;
(c) The deceased was subjected to cruelty or harassment by her husband or by any relative of her husband;
(d) Such cruelty or harassment should be for or in connection with the demand of dowry ; and
(e) To such cruelty or harassment the deceased should have been subjected soon before her death.
In the present case, the undisputed facts are that the death of the deceased is in unnatural circumstance and that the death is occurred within three years of the marriage and that these ingredients have been proved by the prosecution. But at the same time, with regard to the other ingredients that the deceased was subjected to cruelty or harassment, and such harassment was in connection with demand of dowry that too soon before her death have not been proved by the prosecution to convict the appellant herein for an offence under Section 304-B IPC. Nowhere, it is specifically stated by any of the witnesses that the deceased was subjected to cruelty/harassment which is of such a nature that necessitated the deceased to commit suicide. The witnesses deposed the word ‘harassment’ alone and they have not deposed regarding the specific harassment or demand made by the respondents-accused concerned.
Further it is unfortunate to note that in the present case, the cause of death of the deceased was not deposed by the doctor. Even though this Court is not convinced the manner in which the doctor has given opinion, but the fact remains that there is no evidence to show that the death of the deceased is unnatural one. Further the witnesses deposed before the Court that the deceased was subjected to harassment without informing the nature thereof and therefore, this Court cannot come to a conclusion that the deceased was subjected to harassment. The witnesses should specifically state before the Court about the specific instances and incidents like verbal abuse or physical assault or sarcastic comments which caused humiliation to the deceased. In the present case, nothing is stated by the witnesses. Even the fact that the deceased was subjected to harassment as deposed by the witnesses is an improvement in view of the evidence adduced by the investigating officer during the cross-examination. The said improvements are omissions amounting to contradictions. The said evidence was also adduced for the first time before the Court. Hence, this Court is of the view that the prosecution miserably failed to prove the ingredients of Section 304- B and 498-A IPC. Therefore, the appellants are entitled for acquittal setting aside the impugned judgment of the trial Court.
In the result, the Criminal Appeal is allowed. The impugned judgment of the trial Court is set aside. The convictions and sentences imposed on the appellants-A.1 to A.3 for the offences under Sections 304-B and 498-A IPC are hereby set aside and they are found not guilty of the said offences and acquitted of the charges. Their bail bonds shall stand cancelled. The fine amount, if any, paid by the appellants shall be returned to them.
Miscellaneous Petitions, if any, pending shall stand closed.
RAJA ELANGO,J 30.12.2014 Tsr