THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1655 of 2007 23-12-2014 BETWEEN:
Pamballa Sathyanarayana …..Appellant/accused AND State of A.P., Rep. by the Public Prosecutor, High Court of Judicature at Hyderabad For the State of Telangana and the State of A.P.
…..Respondent THIS COURT MADE THE FOLLOWING JUDGMENT:
THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1655 of 2007 JUDGMENT:
This Criminal Appeal is preferred by the appellant/accused against the Judgment dated 30.11.2007 passed in S.C.No.69 of 2007 by the Court of the III Additional District and Sessions Judge (Fast Track Court) at Medak, whereby the learned Judge convicted the appellant/accused for the offence under Section 304-B IPC and sentenced him to undergo rigorous imprisonment for a period of seven years.
The case of the prosecution is as follows:
The deceased married the appellant/accused in the month of May, 2005. At the time of marriage, P.W.1, the father of the deceased, gave 3 tolas of gold, 40 tolas of silver and cash of Rs.10,000/- and other household articles. Thereafter, the appellant/accused started harassing the deceased for additional dowry of Rs.10,000/-. Aggrieved over the same, the deceased committed suicide by hanging on 24.12.2006. The said fact was informed to the police by P.W.1, by way of complaint, Ex.P.1, basing on which a case was registered in crime No.128 of 2006 for an offence under Section 304-B IPC and the case was investigated. After completion of the investigation, police filed charge sheet.
To substantiate the case of the prosecution, P.Ws.1 to 13 were examined and Exs.P.1 to P.7 and M.O.1 were marked on behalf of the prosecution. No oral evidence was examined on behalf of the accused, but marked Ex.D.1.
P.W.1, the father of the deceased, who set the law in motion by lodging the complaint, Ex.P.1, deposed that after the marriage, the deceased lived with the appellant/accused happily for three months. After that the accused demanded Rs.10,000/- and he also started harassed the deceased. P.W.2, who is the grandmother of the deceased, also deposed on the same lines of P.W.1 and has supported the case of prosecution. P.W.3 is the brother of the P.W.1, who also supported the case of prosecution. P.W.4, who is sister-in-law of the appellant/accused, turned hostile and has not supported the case of prosecution. P.W.5, who was studying fourth class, deposed that P.W.4 and the deceased are his junior aunts, and further deposed regarding the occurrence. P.W.6, who was resident of the said village and was doing cultivation, deposed that he was informed by P.W.5 regarding the death of the deceased. P.Ws.7 and 8 deposed that they are the panch witnesses and in whose presence, rough sketch of the scene of offence was prepared. P.W.9 deposed that in his presence, police conducted an inquest over the death of the deceased. P.W.10, who is the then Deputy Tahsildar, deposed that he secured the presence of P.W.9 and two others and in their presence, he conducted the inquest over the deadbody of the deceased under Ex.P.5, inquest panchanama. P.W.11, who is the then Sub Inspector of Police, deposed that he visited the scene of offence and conducted a scene of offence panchanama. P.W.12, who is the then Civil Assistant Surgeon, Government Hospital, Narsapur, conducted Post Mortem and Ex.P.7 is the Post Mortem Examination Report. P.W.13, who is the then Sub Divisional Police Officer, deposed that he conducted investigation and filed charge sheet.
The learned trial Judge on appreciation of evidence, and on hearing oral submissions on both sides, having found the appellant/accused guilty for the offence under Section 304-B IPC by invoking Section 113-B of the Indian Evidence Act, convicted and sentenced the appellant/accused as stated above. Aggrieved by the same, the appellant/accused has preferred the present appeal.
Heard and perused the entire material available on record.
Whether the prosecution has been able to prove the guilt of the appellant/accused for the offence under Section 304-B IPC beyond all reasonable doubt?
P.W.1, the father of the deceased, deposed regarding the death of the deceased, and that the same was supported by P.Ws.2 and 3. P.W.4, who is sister- in-law of the accused, turned hostile and has not supported the case of the prosecution. P.Ws.1 to 3 deposed regarding the allegations of demanding additional dowry and harassment in connection with the demand of additional dowry. However, in the cross-examination, P.W.1, the father of the deceased, admitted the fact that he has not stated before the police that the accused demanded Rs.10,000/- towards additional dowry. It is the case of P.W.1 that only prior to the death of the deceased, the deceased visited the house of P.W.1 and informed him that she was subjected to harassment in connection with additional dowry of Rs.10,000/-. The same was not mentioned either in the complaint, Ex.P.1, or in the Statement recorded by the Investigation Officer. The relevant portion of admission of the said facts by P.W.1 in his cross-examination is extracted as under.
We have not given any complaint against the accused with regard to his harassing my daughter, before the death of my daughter Vijayalaxmi and to the police. We also have not given any complaint to village elders.
4 or 5 times after my daughter’s marriage with the accused I went to their house. I went to their house 5 times with a gap of 1 month. It is true I did not state before the police when my daughter came to my house before her death. It is true I did not give specific date and month of her visit to my house. It is true I did not state before the police that a week prior to the date of incident my daughter came to my house and told me about the harassment. I got the complaint scribed by some other person. It is true even in the complaint I did not get it mentioned about my daughter’s visit to my house a week prior to the date of incident. I stated before the police that the accused demanded Rs.10,000/- for purchasing the agricultural land. My daughter I did not state before the police that the accused demanded Rs.10,000/- towards additional dowry.
It is also to be noted that what is stated by P.W.2 in her chief-examination is not stated by her in the Statement recorded before the Investigation Officer and that she stated the allegations for the first time before the Court, which is an omission, amounting to contradiction. Even admitting that the entire evidence adduced on behalf of the prosecution is true, the same does not disclose any offence under Section 304-B IPC.
In the present case, mere death of a person within seven years of marriage and that the said death is an unnatural one, will not attract an offence under Section 304- B IPC and the Court cannot invoke the presumption under Section 113-B of the Indian Evidence Act 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.
On perusal of the entire evidence adduced on behalf of the prosecution and on perusing the ingredients of Section 304-B IPC, this Court is of the view that the prosecution has proved the first two ingredients i.e. the death occurred within seven years of marriage and the said death is an unnatural one.
Insofar as the other three ingredients are concerned, this Court is of the view that the prosecution miserably failed to prove the same, and therefore, failed to prove the guilt of the appellant/A.1 for the offence under Section 304-B IPC.
The witnesses examined on behalf of the prosecution did not state anything regarding specific instances or incidents, which are of such a nature to drive the deceased to commit suicide. Except the bald allegation that the deceased was subjected to harassment in connection with demand of dowry, nothing was elicited from them that the day, month or year on which the demand was made by the accused. Further, in his cross-examination, P.W.1 admitted that he stated before the police that the accused demanded Rs.10,000/- for purchasing the agricultural land and that he did not state before the police that the accused demanded Rs.10,000/- towards additional dowry.
In view of the above discussion, this Court is of the view that the prosecution has failed to prove the guilt of the appellant/accused and as such the conviction and sentence imposed against the appellant/accused by the Court below for the offence under Section 304-B IPC is liable to be set aside and is accordingly set aside and the appellant/accused is entitled for acquittal of the charge leveled against him.
In the result, the Judgment of the Court below in convicting and sentencing the appellant/accused for the offence under Section 304-B IPC is set aside. The bail bonds shall stand cancelled and the sureties stand discharged. The fine amount, if any, paid by the appellant/accused shall be refunded to him.
The Criminal Appeal is accordingly allowed. Consequently, the miscellaneous petitions, if any pending in this appeal, shall stand closed.
JUSTICE RAJA ELANGO 23.12.2014 pln