THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.131 of 2006 14-07-2014 BETWEEN:
Velagala @ Velagana Ramu …..Appellant/A.1 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.131 of 2006 JUDGMENT:
This Criminal Appeal is preferred by the appellant/A.1 against the Judgment dated 14.11.2005 passed in S.C.No.678 of 2001 by the III Additional Sessions Judge (Fast Track Court), Bhimavaram, whereby the learned Judge convicted the appellant/A.1 for the offence under Sections 498-A and 304-B IPC and sentenced him to suffer rigorous imprisonment for three years and to pay a fine of Rs.2,000/- (Rupees two thousand only), in default, to suffer simple imprisonment for six months for the offence under Section 498-A IPC and to suffer rigorous imprisonment for ten years for the offence under Section 304- B IPC.
The case of the prosecution is as follows:
The deceased and A.1 are the wife and husband. A.2 is the mother of A1 and A.3 is the younger sister of A.2. About two years prior to the date of occurrence, i.e. 05.10.2000, the marriage between the deceased and A.1 was performed by themselves in a temple and the said marriage is a love marriage. Later, the parents of the deceased accepted their marriage and gave Rs.21,000/- to A.1 towards dowry and sent the deceased along with A.1 for conjugal life. Thereafter, both the deceased and A.1 lived happily for one year and were blessed with a boy. Subsequently A.1 under the instigation of his mother, A.2 and junior aunt, A.3, used to harass the deceased frequently demanding additional dowry from her parents. That five days prior to the date of occurrence A.3 had quarreled with the deceased over a petty dispute causes deep routed enmity between A.3 and the deceased. Subsequently, A.2 and A.3 while instigated A.1 intensified his attitude towards the deceased on a plea that the deceased took less dowry from her parents, which causes the deceased came to a conclusion to do away herself, and as such she consumed pesticides at her in-law’s house. Basing on the complaint lodged by P.W.1, police registered the case against A.1 to A.3 for the offences under Sections 498-A and 304-B IPC. After completion of the investigation, police filed charge sheet.
To substantiate the case of the prosecution, P.Ws.1 to 17 were examined and Exs.P.1 to P.14 and M.Os.1 to 11 were marked on behalf of the prosecution. D.W.1 was examined and Ex.D.1 to D.3 were marked on behalf of the accused.
The learned trial Judge on appreciation of evidence, and on hearing oral submissions on both sides, having found the appellant/A.1 guilty for the offence under Sections 498-A and 304-B IPC, convicted and sentenced him as stated above. Aggrieved by the same, the appellant/A.1 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/A.1 for the offences under Sections 498-A and 304-B IPC beyond all reasonable doubt?
The learned trial Judge relied on the evidence of P.Ws.1 to 3, who are closely related to the deceased and P.W.1 is the mother of the deceased and P.Ws.2 and 3 are the brothers of the deceased. Insofar as the other independent witnesses are concerned, they have not supported the case of the prosecution. To decide the point, It is necessary to extract relevant portions from the evidence of P.Ws.1 to 3 and the same reads as under.
P.W.1 – Chief Examination I do not remember on which exact date my daughter and A.1 quarrel, but about 5 years back L.W.6 Paddalu came to my house and informed me that my daughter was struggling and emitting of foam from the mouth.
P.W.1 - Cross-Examination.
It is true that myself and my family members and A.2 and A.3 and relatives of A.1 do not know the love affair in between A.1 and my deceased daughter. We came to know after their marriage. A.1 and my deceased daughter married much against our will and consent. It is not true to suggest that we are against the marriage of my younger daughter with A.1. … … … … After marriage, A.1 and his wife lived separately from his mother My daughter never informed me about alleged threatenings and instigation stated by me in Chief Examination prior to her death.
P.W.2 - Chief Examination My deceased sister informed us, the family members and her husband harassed her for more dowry. My deceased sister also informed us that A.2 also harassed for demand of dowry.
P.W.2 - Cross Examination My deceased sister told me one year after her marriage that her husband harassed her that the dowry given to her is less. Two months thereafter he told me the same.
P.W.3 - Chief Examination My sister informed me that A.1 to A.3 demanded her to bring additional dowry and subjected her harassment.
The learned trial Judge is of the view that the death occurred within a period of seven years and the death is also an unnatural one as she consumed pesticides and died in the hospital and as such, the learned trial Judge presumed that the death was due to harassment in connection with dowry.
In the present case, mere death of a person within seven years of marriage and 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.
P.W.1, in his Chief Examination has not stated anything regarding specific instances or incidents, which are of such a nature to drive the deceased to commit suicide. Except the bald allegation that she was informed by the deceased that she was subjected to harassment in connection with demand of dowry, she has not stated the actual amount demanded by the appellant/A.1 and the day, month or year on which the demand was made by the accused. Further, she admitted in her cross-examination that the deceased has not stated anything regarding the harassment prior to her death and that she further admitted that they lived happily after the marriage. She further admitted in her cross-examination that after the marriage, A.1 and his wife lived separately from his mother. Admittedly, the marriage between the appellant/A.1 and the deceased is a love marriage and that the same was accepted after the marriage, whereas P.W.1 in her evidence stated that her husband gave Rs.21,000/- to A.1 towards dowry at the time of marriage, and at the same time she deposed that herself and her husband did not attend the marriage. The said contradictions in her evidence certainly create a doubt in the mind of the Court.
P.Ws.2 and 3 deposed regarding the marriage and they have also not stated any specific instances or incidents of cruelty or harassment by the accused towards the deceased, which are of a nature which drive the deceased to commit suicide in her matrimonial home. Further, it is admitted by P.W.2 in the cross-examination that he was told one year after the marriage by the deceased that the appellant/A1 harassed her as the dowry given is less. It is to be noted that one of the ingredients to attract an offence under Section 304-B IPC is that the deceased should have been subjected to cruelty or harassment soon before her death. On reading the entire evidence, this Court is of the view that there is no proximity between the death of the deceased and the demand allegedly made by the appellant/A.1. Even though Ex.P.12, complaint, was given by the father of the deceased, he is not examined since he died prior to the conclusion of the trial. Even though in the Complaint Ex.P.12, the father of the deceased made two specific allegations that the deceased was assaulted by the accused, the same was not deposed before the Court by any of the witnesses, more specifically P.Ws.1 to 3, who are mother and brothers of the deceased.
In view of the above discussion, this Court is of the view that the prosecution has failed to prove the guilt of the appellant/A.1 and as such the conviction and sentence imposed against the appellant/A.1 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/A.1 is entitled for acquittal of the charge leveled against him.
Insofar as the conviction and sentence imposed by the Court below against the appellant/A.1 for the offence under Section 498-A IPC is concerned, this Court is of the view that in the absence of any evidence that there is any harassment or cruelty in connection with the demand of additional dowry by the appellant/A.1, the appellant/A.1 cannot be convicted for the said offence. Hence, conviction and sentence imposed by the Court below against the appellant/A.1 for the offence under Section 498-A IPC is also liable to be set aside and is accordingly set aside.
In the result, the Judgment of the Court below in convicting and sentencing the appellant/A.1 for the offence under Sections 304-B IPC and 498-A IPC is set aside. The bail bonds shall stand cancelled and the sureties stand discharged. The fine amount, if any, paid by the appellant/A.1 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 14.07.2014 pln