CRLA/442/2008 of Devarakonda Lokanatham, Vs The State of Andhra Pradesh, on 30 December 2014

JUDGMENT:

This Criminal Appeal is filed by A.1 to A.3 challenging the judgmentdated 04.04.2008 passed by VI Additional District and Sessions Judge (FastTrack Court), Tirupati in S.C.No.179 of 2007, whereby the learned SessionsJudge found the appellants guilty for the offences under Sections 498-A and304-B IPC and sentenced them to undergo R.I. for two years and to pay a fineof Rs.1,000/- each, in default, to undergo S.I. for three months for the offenceunder Section 498-A IPC. They were further sentenced to undergo R.I. forseven years for the offence under Section 304-B IPC. Both the sentenceswere directed to run concurrently. However, A.4 and A.5 were found not guiltyof 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 thehusband of A.4. One D.Pushpalatha (hereinafter referred to as ‘deceased’) isthe daughter of complainant-P.W.1. Her marriage was performed with A.1 on21.5.2004. After the marriage, the deceased joined her husband-A.1 andstarted leading her matrimonial life with him in their house located in KolaStreet, Tirupati. From the date of the marriage the accused were under theimpression that the dowry given to them was insufficient and on that countthey started harassing the deceased and demanded to bring additional dowryof Rs.50,000/- from her parents. Since P.W.1 failed to meet out the demandof 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 herparental home. When the child was at the age of 5[th] month, P.W.1 droppedthe deceased and child at her matrimonial house and gave Rs.20,000/- topurchase gold chain to the child and to meet the expenses for naming ceremony function. The accused did not allow the parents of deceased tocome to their house and they did not invite them for ear-performing ceremonyfunction. On 20.12.2005, in the mediation held before the elders whereinP.W.1 agreed to provide additional dowry of Rs.50,000/- to the accusedwithin a year. Even then, the accused continued to harass the deceasedmentally and physically. While so, on 8.1.2006, at about 10.00 a.m., A.1 toA.4 picked up a quarrel with the deceased and on the instigation of A.2 toA.4, A.1 beat the deceased over her face with hands. Due to intolerableharassment of the accused, the deceased went into a room and committedsuicide with the help of her saree. She died on the way while she was beingshifted to SVRR Hospital, Tirupati. Upon the complaint given by P.W.1under Ex.P.1, police registered a case in Crime No.4 of 2006 initially, underSection 174 Cr.P.C., but later on, section of law was altered to Section 304-BIPC. After completion of investigation, police laid charge sheet against theaccused for the offence punishable under Section 304-B and 498-A IPC.

In order to bring home the guilt of the accused, prosecution examinedP.Ws.1 to 12 and marked Exs.P.1 to P.14. On behalf of defence, D.W.1 wasexamined and Exs.D.1 to D.6 were marked.

After evaluating the entire evidence brought on record, the trial Courtconvicted and sentenced the appellants as aforementioned.

Heard the learned counsel for the appellant and learned AdditionalPublic Prosecutor and perused the material brought on record.

P.W.1-complainant, the father of the deceased deposed before theCourt regarding the performance of marriage of deceased with A.1 and hisgiving a sum of Rs.2,50,000/- to the accused towards dowry. He deposedthat the deceased lead marital life happily for about one month. He deposedthat the deceased used to inform him over phone about the harassment beingmeted out by the accused demanding additional dowry amount. Even afterhis 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 ofthe accused accompanied by L.Ws.12 and 13 and they convinced theaccused that he (P.W.1) would pay the agreed amount of Rs.50,000/- afterone month. Ten days thereafter i.e. on 8.1.2006 at about 11.00 a.m. A.1telephoned and informed him that the deceased died by committing suicideby hanging herself. On his enquiry, the neighbours, who gathered at thehouse of accused, informed him that a galata took place between thedeceased and accused. Immediately, he approached the police andpresented 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 deposedbefore the Court regarding the marriage that took place between thedeceased and A.1. She further deposed that whenever she used to visit thehouse of accused to see the deceased, the accused used to ask thedeceased not to speak with P.W.2 unless deceased gets an amount ofRs.50,000/- from her parents. On 8.1.2006 on receipt of telephonic callregarding the death of deceased, she rushed to the house of accused. Onher enquiry, neighbours informed her that a galata took place between theaccused and the deceased during morning hours on that day. However, inthe cross-examination, she admitted that she did not inform the said fact tothe police in her statement. She also admitted that she did not state beforethe police that whenever she visited the house of the accused to see thedeceased, A.1 to A.3 used to ask the deceased not to speak with her untiland unless she gets an amount of Rs.50,000/- towards additional dowry fromher 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 messagefrom 108 Centre, Hyderabad to the effect that they have received a calleridentified phone from one D.Lokanadham stating that his wife was in seriouscondition at Kola Street, Tirupati and directed him to attend the same.

Immediately, he proceeded with ambulance to the house of the accused witha stretcher and took the deceased to SVIMS Hospital after giving her first aidand doctor at the hospital examined and declared the deceased dead. P.W.4, a neighbour of the accused was examined by the prosecution to provethat a galata took place on the date of the incident soon before the death ofdeceased, but she did not support the case of the prosecution and therefore,she was declared hostile by the prosecution. To prove the mediation tookplace between P.W.1 and the accused regarding the payment of additionaldowry amount of Rs.50,000/-, P.W.5 was examined by the prosecution. Hedeposed that on 20.12.2005 to settle the dispute between P.W.1 and theaccused, he went to the house of accused accompanied by P.W.1 and hiswife and there he mediated the matter with the accused, wherein P.W.1agreed 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 thaton 3.2.2006 at about 11.30 a.m. while he was at his house, A.1 to A.4 cameto him and asked him to settle the dispute arose between him and P.W.1 withregard to the demand of additional dowry being made by them. Then hemade them to sit at his house and went to the office of Deputy Superintendentof Police and revealed the same to him and his statement was reduced intowriting as in Ex.P.3. P.W.7 is the mediator to the inquest report-Ex.P.4 andhe deposed that after inquest, the mediators opined that the deceased wasmurdered by her in-laws and other relatives. P.W.8, who is a witness to thearrest mahazar, did not support the case of the prosecution and therefore, hewas declared hostile. P.W.9 is the then Mandal Executive Magistrate, whoconducted inquest over the dead body of the deceased and issued Ex.P.4inquest report. He deposed that on 8.1.2006 on receipt of requisition from thepolice, he conducted inquest over the dead body of the deceased on9.1.2006 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 ofinquest, the panchayatdars opined before him that the deceased died due tothe harassment meted out in the hands of her in-laws.

P.W.10 is the doctor, who conducted autopsy over the dead body ofthe deceased and issued Ex.P.5 post-mortem report. He found the followinginjuries over the dead body of the deceased:

“1. contusion of 2 x 2 cm of inner aspect of lower lip in midline. Brownish red incolour.

2. abrasion of 6 x 6 cm over right side of the neck, 2 cm below right ear. Brown incolour.

3. abrasion of 3 x 3 cm over left side of the neck, 2 cm below left ear. Brown incolour.

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.” wound No.2. Brownish red in colour.”

The doctor issued final report in Ex.P.6 opining that no opinion could begiven 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 complainton 8.1.2006 at about 6.00 p.m. and registered a case and issued F.I.R. Heobserved the scene of offence on 9.1.2006 and drafted observation mahazarunder Ex.P.10 and sent the dead body to S.V. Medical College, Tirupati forconducting post-mortem examination. He examined and recorded thestatements of witnesses and altered the section of law from Section 174Cr.P.C. to Section 304-B IPC. P.W.12 is the investigating officer. Hedeposed about his conducting investigation and recording the statements ofwitnesses. He deposed that on 3.2.2006 P.W.6 presented a report as inEx.P.14 stating that A.1 to A.4 approached him for mediation and on the saidand 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 thatsince the doctor-P.W.10 did not furnish the cause of death in the post-mortemreport Ex.P.5, he issued a questionnaire to him as under Ex.P.7 and obtaineda reply Ex.P.8 from him. After completion of investigation, he laid the chargesheet against the accused.

In the present case, it is rather curious to observe the medicalevidence. 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 begiven 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 thedeceased, the investigating officer-P.W.12 issued a questionnaire to thedoctor as under Ex.P.7. The questionnaire reads thus:

“1. If the injuries found on the person of the deceased are not sufficient to causedeath, if so, what are the causes for the death?

2. Basing on the injuries found in and around the face of the deceased, whether thedeath of the deceased was caused by suffocation?

3. If so, whether the suffocation was done by using any soft material or not in suicidalor 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 colourindicates that the wounds are aged not less than 24 hours. As such those wounds were notresponsible for the death of the deceased.

5. The death was declared in SVIMS Hospital. Had the death of Mrs. C.Pushpalathais due to smothering, it should have been an instantaneous death rather than death takingplace 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 poisonoussubstance 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 24hours 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. InCr.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 ofdeath.

The SDPO is requested to state the law which stipulates that the doctor has to giveinvariably the cause of death after postmortem examination.”

This Court perused the evidence of prosecution witnesses. Takinginto consideration the entire evidence and also the unrebutted evidence ofP.Ws.1 and 2, it does not disclose any offence to attract an offence underSection 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 itis shown that soon before her death she was subjected to cruelty or harassment by herhusband or any relative of her husband for, or in connection with any demand for dowry, suchdeath shall be called “dowry death”, and such husband or relative shall be deemed to havecaused her death.

Explanation: xxxxx

(2) Whoever commits dowry death shall be punished with imprisonment for a termwhich 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 notattract an offence under Section 304-B IPC and the Court cannot invoke thepresumption under Section 113-B IPC unless and otherwise the followingingredients are proved.

(a) That death of a woman was caused by burns or bodily injury or hadoccurred otherwise than under normal circumstances;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 herhusband or by any relative of her husband;husband or by any relative of her husband; (d)Such cruelty or harassment should be for or in connection with thedemand of dowry ; anddemand of dowry ; and (e) To such cruelty or harassment the deceased should have beensubjected soon before her death.subjected soon before her death.

In the present case, the undisputed facts are that the death of thedeceased is in unnatural circumstance and that the death is occurred withinthree years of the marriage and that these ingredients have been proved bythe prosecution. But at the same time, with regard to the other ingredientsthat the deceased was subjected to cruelty or harassment, and suchharassment was in connection with demand of dowry that too soon before herdeath have not been proved by the prosecution to convict the appellantherein for an offence under Section 304-B IPC. Nowhere, it is specificallystated by any of the witnesses that the deceased was subjected tocruelty/harassment which is of such a nature that necessitated the deceasedto commit suicide. The witnesses deposed the word ‘harassment’ alone andthey have not deposed regarding the specific harassment or demand madeby the respondents-accused concerned.

Conclusion

Further it is unfortunate to note that in the present case, the cause ofdeath of the deceased was not deposed by the doctor. Even though thisCourt is not convinced the manner in which the doctor has given opinion, butthe fact remains that there is no evidence to show that the death of thedeceased is unnatural one. Further the witnesses deposed before the Courtthat the deceased was subjected to harassment without informing the naturethereof and therefore, this Court cannot come to a conclusion that thedeceased was subjected to harassment. The witnesses should specificallystate before the Court about the specific instances and incidents like verbalabuse or physical assault or sarcastic comments which caused humiliation tothe deceased. In the present case, nothing is stated by the witnesses. Eventhe fact that the deceased was subjected to harassment as deposed by thewitnesses is an improvement in view of the evidence adduced by theinvestigating officer during the cross-examination. The said improvementsare omissions amounting to contradictions. The said evidence was alsoadduced for the first time before the Court. Hence, this Court is of the viewthat the prosecution miserably failed to prove the ingredients of Section 304-B and 498-A IPC. Therefore, the appellants are entitled for acquittal settingaside the impugned judgment of the trial Court.

In the result, the Criminal Appeal is allowed. The impugned judgmentof the trial Court is set aside. The convictions and sentences imposed on theappellants-A.1 to A.3 for the offences under Sections 304-B and 498-A IPCare hereby set aside and they are found not guilty of the said offences andacquitted of the charges. Their bail bonds shall stand cancelled. The fineamount, if any, paid by the appellants shall be returned to them.

Miscellaneous Petitions, if any, pending shall stand closed.

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RAJA ELANGO,J