CRLA/960/2007 of Donkanti Rajendar, Vs The State of A.P., on 31 December 2010

THE HON’BLE SRI JUSTICE K.C.BHANUAND

THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO

CRIMINAL APPEAL No.960 OF 2007

JUDGMENT: (Per Hon’ble Sri Justice K.C.Bhanu)

This Criminal Appeal is filed under Section 374 (2) of theCr.P.C. against the judgment and decree, dated 11-07-2007, inSessions Case No.289 of 2006, on the file of the V AdditionalSessions Judge (FTC) at Nizamabad, whereunder and whereby, A-1to A-4 were found guilty for the offences punishable under Sections498-A and 304-B IPC and sentenced them to undergo rigorousimprisonment for three years and also to pay a fine of Rs.5,000/-, indefault, to simple imprisonment for a period of three months and alsosentenced to undergo imprisonment for life, respectively.

2. The case of the prosecution, in brief, is that A-1 is theresident of Bheemgal village. A-2 and A-3 are his parents and A-4 isthe sister of A-2. The marriage of the deceased viz., Varalakshmi wasperformed with A-1 on 26-05-2005. At the time of marriage, theparents of the deceased gave Rs.50,000/- cash, two tulas of gold andhousehold utensils to A-1 towards dowry. They also promised A-1 togive cash of Rs.2,09,000/- by way of fixed deposit after its maturity inthe year 2009. After living sometime happily, A-1 started harassingdeceased for cancellation of F.D.Rs prematurely. The deceasedinformed the same to her parents. They came to the village of A-1 andrequested to wait till the deposit amount matured. But A-1 withoutheeding their words, continued his harassment to deceased and dueto his cruelty in demanding money, it caused to her mental agony, andthat unable to bear his attitude, the deceased committed suicide on 28-03-2006 by hanging to a ceiling fan in her house. P.W.1, father of thedeceased, gave a complaint to the police. P.W.16 registered a case inCrime No.33 of 2006 on the file of Bheemgal police station. P.W.15

visited the scene of occurrence i.e. the house of accused in Bheemgalvillage. He found the dead of deceased hanging to a ceiling fan withsaree. He got taken the photographs of the scene of occurrence andprepared a rough sketch. He sent a requisition to the ExecutiveMagistrate to hold inquest. P.W.14 held inquest over the dead body inthe presence of P.W.12 and others. P.W.15 conducted autopsy andfound ligature mark around the neck of deceased. After investigatinginto the matter, the police filed a charge sheet.

3. The charges levelled against the accused were as follows:

“Firstly,

That A-1 to A-4 of you, on and after marriage of thedeceased, A-1 being husband of the deceased, A-2 and A-3being parents-in-law of the deceased and A-4 being maternalaunt of A-1 subjected the deceased to cruelty namelyharassment for dowry and that you thereby committed anoffence punishable under Section 498-A of Indian penal Codeand within my cognizance.

Secondly,

That A-1 to A-4 of you on 28-03-2006 at 8.30 P.M. causedthe death of the deceased D.Prameela @ Varalazmi by hangingand that the death of the deceased occurred within seven yearsof her marriage and that the deceased was subjected to crueltyor harassment by A-1 and A-2 to A-4 of you in connection withdemand for dowry and that all of you thereby committed anoffence punishable under Section 304-B of Indian penal Codeand within my cognizance.”

All the charges were read over and explained to the accused in Teluguand the accused having denied the same pleaded not guilty.

4. To substantiate the charges levelled against the accused,the prosecution examined P.Ws.1 to 16 and marked Exs.P-1 to P-17besides case properties MOs.1 and 2 on its behalf. On behalf of theaccused, D.Ws.1 and 2 were examined and marked Exs.D-1 to D-7.

5. The trial Court accepting the evidence of P.Ws.1 to 4, foundthe accused guilty of the offence and accordingly convicted andsentenced them as stated supra. Challenging the same, the presentCriminal Appeal has been filed.

Issues

6. Now the point for determination is whether the prosecutionhas proved the guilt of the accused beyond reasonable doubt of thecharges levelled against them under Sections 498-A and 304-B IPC?

7. Sri C.Padmanabha Reddy, learned senior counsel for theappellants, contended that the evidence of P.Ws.1 to 4 is inconsistentwith regard to the demand of dowry; that there was no harassment foror in connection with dowry; that the evidence of P.Ws.1 to 3 is full ofimprovements and contradictions. In view of the improvements madeby them, it is not safe to place any implicit reliance on the evidence ofP.Ws.1 to 4; that A-2 to A-4 are living separately by doing theirtraditional work of dhobi at Pallekonda village and there is no specificallegation against A-2 to A-4 except saying an omnibus allegation ofdemand of dowry; that prior to the incident, the deceased was sufferingfrom stomach-ache and for that reason, she had taken treatment beforeD.W.1 and unable to bear the stomach-ache, the possibility of thedeceased committing suicide cannot be ruled out. Therefore, he praysto set aside the conviction and sentence imposed on appellants by theCourt below.

8. On the other hand, the learned Public Prosecutorcontended that the evidence of P.Ws.1 to 4 is very clear that soonbefore death, the deceased was subjected to cruelty or harassment foror in connection with dowry and that there is no other reason forP.Ws.1 to 4 to speak false against the accused and that their evidenceis convincing with regard to the fact that A-1 to A-3 came to the houseof P.Ws.1 and 2 for attending marriage of P.W.4, four days prior to themarriage, and also stayed there four days after the marriage and at that point of time, A-1 to A-3 made unlawful demand to deceased to encashthe F.D.R. prematurely, which was agreed to be given at the time ofmarriage, and that the trial Court, after elaborating the evidence onrecord, rightly found them guilty, and therefore, there are no grounds tointerfere with the well reasoned judgment.

9. P.W.14 is the Mandal Revenue Officer, Balkonda village,who conducted inquest on the dead body of the deceased in thepresence of P.W.12 and others and the opinion of panchasincorporated in Ex.P-11, inquest report, reveals that the deceased diedas a result of hanging.

10. P.W.13, doctor, conducted autopsy on the dead body of thedeceased and found a ligature mark around the neck obliquely asgroove about 1 ½ inches width; bluish black in colour. Some places infront and left side of the neck, skin teared. Knot on right side of theneck behind right ear. The above injury is anti-mortem in nature. Ondissection, he found both lungs congested, stomach containedundigested food tongue, bitten, frothy discharge from let angle of themouth. The age of the deceased is approximately 20 years. Approximate time of death of deceased is about 12 to 20 hours. Heopined that the cause of the death was due to asphyxia as a result ofhanging. He along with another doctor conducted post-mortemexamination on the body of deceased and issued certificate ExP-13.

11. Nothing has been elicited in the cross examination ofP.W.12 to discredit his testimony. From the evidence of P.W.13, andfrom the recitals in Ex.P.13, it leaves no room to doubt that the death ofthe deceased is unnatural. Even the accused are also not denying ordisputing about the suicidal death of the deceased.

12. For the offence under Section 498-A IPC, prosecution has toestablish that the husband or relative of husband of a woman subjectssuch woman to cruelty. Cruelty means (a) any wilfl conduct which is of such a nature as is likely to drive the women to commit suicide or tocause grave injury or danger to life, limb or health (whether mental orphysical) of the woman and (b) harassment of the woman where suchharassment is with a view to coercing her or any person related to herto meet any unlawful demand for any property or valuable security or ison account of failure by her or any person related to her to meet suchdemand.

13. So far as the offence under Section 304-B IPC is concerned,the prosecution has to establish the following ingredients:

i) The death of a woman should be caused by burns orbodily injury or otherwise than under normal circumstances.

ii) Such death should have occurred within seven yearsof her marriage.

iii) She must have been subjected to cruelty orharassment by her husband or any relative of her husband and

iv) Such cruelty or harassment should be for or in connection withdemand of dowry.

14. The meaning of ‘Dowry’ as defined under Section 2 of theDowry Prohibition Act, 1961, is that any property or valuable securitygiven or agreed to be given either directly or indirectly (a) by one partyto a marriage to the other party to marriage (b) by the parents of eitherparty to a marriage or by other person to either party to the marriage orto any other person, at or before or any time after marriage inconnection with marriage of the said parties.

15. The marriage of A-1 with the deceased was performed on26-05-2005 at Bheemgal village at the residence of accused. A-1 isthe husband, A-2 and A-3 are his parents and A-4 is the sister of A-2. P.Ws.1 and 2 are the parents of the deceased, P.W.3 is paternalgrand-father of the deceased, P.W.4 is the brother of the deceased. P.Ws.5 and 6 are the tenants in the house of A-2, but they did notsupport the case of the prosecution. Therefore, the entire case restsupon the evidence of P.Ws.1 to 4 only.

16. The evidence of P.Ws.1 to 4 is almost similar and identicalwhich would go to show that at the time of marriage, P.W.1 gaveRs.50,000/- cash, gold ornaments weighing two tulas and householdutensils as dowry, on the demand made by the accused. That after themarriage, A-1 and the deceased lived together at the house of A-1 atBheemgal village. It is in this evidence that at the time of settlement ofmarriage talks, P.Ws.1 and 2 agreed to give the amount covered underfixed deposit receipt which will be matured in the year 2009. Aftermaturity the said amount is agreed to be given to A-1.

17. It is the case of the prosecution that two months after themarriage, all the accused started harassing to encash the fixed depositreceipt prematurely and give the said amount to them. Thus, the saidfact was informed to the parents by the deceased through telephone. Then P.Ws.1 to 3 went to the house of accused at Bheemgal villageand requested the accused to receive the amount after maturity. But,in spite of giving assurance by P.W.1, the accused did not heed to thewords of P.W.1. Accused are persisting their demand to encash fixeddeposit receipt. It is further case of the prosecution that the marriage ofP.W.4 was performed eight days prior to the date of death of thedeceased.

18. According to P.Ws.1 and 4, it is A-1 and the deceased alonecame to the village of P.W.1 four days prior to the marriage and stayedfor about four days after the marriage. But according to the P.Ws.2 and3, it is A-1 to A-3 and the deceased came to the village for attendingmarriage of P.W.4. So there is a discrepancy with regard to theaccused persons who attended the marriage of P.W.4. In view of thisdiscrepancies, it cannot be believed the presence of A-2, and A-3 atthe time of marriage of A-4. But the evidence of P.Ws.1 to 4 is veryclear that A-1 and the deceased have come to the marriage of P.W.4. At that time also, it is the case of the prosecution that the accuseddemanded dowry viz., the premature encashment of fixed deposit receipt. A-1 and deceased returned to Bheemgal village. Four daysthereafter, the deceased died by hanging herself.

19. The evidence of P.W.2 that all the accused startedharassing the deceased two months after the marriage to encashprematurely and bring the fixed deposit amount and that on coming toknow about the same, P.Ws.1 and 3 went to the house of accused atBheemgal village and requested the accused not to harass thedeceased and at that time also, the accused demanded F.D.R.amount. The statement of P.W.1 that there was harassment by theaccused two months after the marriage of A-1 with the deceasedappears to be an improvement because that has not been stated to thepolice when he was examined under Section 161 (3) Cr.P.C. Becauseon this aspect, the Investigating Officer, P.W.15, categorically admittedthat P.W.1 did not state before him that on the demand of accused,P.W.1 gave Rs.50,000/- and gold; that two months after the marriage,accused demanded for premature encashment of F.D.R. amount andthe same was informed to her parents by phone; that he (P.W.1)requested the accused that he would pay the amount after the maturityof the F.D.R. amount, and thereafter, the accused again startedharassment; that P.W.1 and his father went to the house of theaccused at Bheemgal village and requested them to stop harassment;that at the time of marriage of his son, P.W.4, the accused demandedF.D.R. amount and cash. Therefore, the statement of P.W.1 that twomonths after the marriage of A-1 and deceased, there was harassmentwith regard to the encashment of the F.D.R. is an improvement and itcannot be brushed aside lightly. Therefore, the statement of P.W.1, onthis aspect, cannot be taken into consideration, but, however, theevidence of P.W.1 is very clear with regard to the harassment namelypremature encashment of F.D.R. after the marriage that A-1 and thedeceased came to his village eight days prior to the death of thedeceased in connection with the marriage of his son. To that extent,his evidence can be accepted.

20. Similarly, P.W.2 also made improvements on this aspect. P.W.15 admitted that P.W.2 did not state before him that the deceasedmade a telephone call to one Narsavva; that his father talked intelephone with deceased; that the accused agreed that they willprovide cots to A-1; that the deceased came to the house of herparents and informed them that the accused were harassing her andfor the marriage of their son, A-2 and A-3 were attending and alsodemanded for encashment of F.D.R. amount prematurely. If theevidence of P.W.2, with regard to the improvement made by him incourt is eschewed from consideration, it is very clear that A-2 and A-3have not come to the marriage. Therefore, the question of A-2 and A-3demanding P.W.1 to encash fixed deposit receipt may not arise.

21. P.W.15, the Investigating Officer, also admitted that P.W.3has not stated before him that the deceased informed him (P.W.3) thatthe accused were harassing the deceased for F.D.R. amount and allthe accused along with deceased returned to their house after themarriage of P.W.3’s grandson. So, the evidence of P.W.3 to the extentof A-2 and A-3 also came to the village to attend the marriage of P.W.4is an omission and cannot be accepted in view of the improvementmade in his evidence. P.W.4 also did not state before the InvestigatingOfficer that A-2 to A-4 attended to his marriage. Therefore, from theevidence of P.Ws.1 to 4, it can be safely inferred that A-1 and thedeceased alone came to the village of P.W.1 for the purpose ofattending the marriage. Four days after, when A-1 and the deceasedleft the village of P.W.1, the incident has taken place. From theevidence of P.Ws.1 to 4, it is clear that there was harassment todeceased by A-1 soon before her death. The harassment is withregard to the premature encashment of the F.D.R. which was agreed tobe given by P.Ws.1 and 2, after their maturity as per the promise madeat the time of marriage of A-1 and the deceased. Therefore, it isunlawful demand made by A-1 so as to encash the F.D.Rs.

prematurely and asking her to get that amount. Since it is unlawfuldemand, the possibility of the deceased committing suicide unable tobear the harassment of A-1 cannot be ruled out. From the evidence ofP.Ws.1 to 4, it is clear that A-1 alone was harassing the deceased toget the dowry amount i.e. premature encashment of F.D.R. Theirevidence is clear that soon before her death, deceased was subjectedto cruelty for or in connection with the demand of dowry. Therefore, theprosecution clearly established the required four ingredients forproving the offence under Section 304-B IPC. Once the prosecutiondischarged its burden, the burden shifts to the accused under Section113-B of the Evidence Act. If Section 113-B is attracted, when thedeath of the deceased has taken place within seven years, and it isunnatural and the deceased was subjected to cruelty for or inconnection with the demand of dowry before her death, thepresumption is that it is a dowry death. Of course, it is a rebuttablepresumption. After prosecution discharged its burden, burden shifts tothe accused to rebut the presumption. The accused examined D.W.1,a medical practitioner of Bhimgal to show that he treated the deceasedfor abdominal pain on 14-06-2005. Ex.D-4 is the prescription. Ex.D-5 is the prescribedtreatment given to the deceased. As per his advice, Ex.D-6,abdominal scan was taken and the scan was normal.

22. The evidence of D.W.1 does not indicate that after treatment,the deceased was suffering with the abdominal pain severely so as totake an extreme step of committing suicide. Even according to thedoctor, D.W.1, he categorically admitted that if the deceased VenkataLakshmi had complained a severe stomach-ache, he would havecertainly referred to her to a specialist. The fact that the deceased wasnot referred to expert treatment would indicate that the deceased wasnot suffering with severe abdominal pain. Further, D.W.1 admitted thataccording to Ex.D-7, the deceased was suffering with muscle pain andthere was no complaint from the deceased about abdominal pain.

D.W.2, who is a resident of Bheemgal Village, simply stated that thedeceased told him that she was suffering with abdominal pain, whichis contrary to the evidence of doctor D.W.1. Admittedly, he is aninterested witness to the case of prosecution because he was in thehabit of purchasing articles from the kirana shop of A-1. Therefore, noreliance can be placed upon his evidence especially when the doctorwho was examined on behalf of the accused has categorically statedthat the suffering of the deceased is not abdominal pain. So the caseof accused No.1 that the deceased committed suicide unable to bearthe abdominal pain cannot be accepted. On the evidence adduced byhim, it is false plea. Therefore, the presumption under Section 114-Bof the Evidence Act can be drawn.

23. For the aforesaid reasons, we have no hesitation to hold thatit is A-1 who was harassing the deceased cruelly soon before herdeath and therefore, the trial Court after considering the evidence onrecord, found A-1 guilty for the offences under Sections 498-A and 304IPC.

24. Insofar as A-2 to A-4 are concerned, there is no evidence toshow that they were present along with the deceased while they werestaying at Bheemgal village. On the other hand, as elicited from theevidence of P.Ws. 1 and 2 in their cross-examination that A-2 and A-3were living in Pallekonda village by attending to their caste duties asdhobi and as a matter of fact, the Investigating Officer also admittedthat A-2 and A-3 are residents of Pallekonda village which is far awayfrom the Bheemgal, wherein, A-1 and the deceased were used toreside. The charge sheet also disclosed that A-2 and A-3 areresidents of Pallekonda village. Such is the case, there was no scopeor possibility for them to demand P.Ws.1 and 2 to give dowry orencash the F.D.Rs. prematurely. Insofar as the A-4 is concerned,admittedly she is not residing with the deceased. There is noevidence to show that she came to the village of P.Ws.1 and 2 in order to attend the marriage of the son of P.W.1. Therefore, the question ofher demanding dowry soon before the death of the deceased may notarise.

25. Therefore, for the aforesaid reasons, the conviction andsentence against A-2 to A-4 are not sustainable. Hence, they areentitled for acquittal. But, A-1 is found guilty for the offencespunishable under Sections 498-A and 304-B IPC.

26. A-1 is a young man, aged about 22 years as on the date ofincident. He is only the son to his parents. A-1 is only insisting thedeceased to encash fixed deposit receipt prematurely. It is not a caseof demand of additional dowry made by A-1, so as to fulfil his lust. A-1was only demanding P.Ws.1 and 2 to encash the F.D.Rs. which wasagreed to be given to A-1 at the time of marriage. Considering all theseaspects of the case, we are of the view that since there was noadditional demand of dowry or any unlawful demand or that he causedany bodily injuries to the deceased at any point of time after themarriage, a lenient view can be taken with regard to the sentence to beimposed. Considering these facts, imposing a minimum sentenceprescribed under Section304-B IPC against A-1 is sufficient to meet the ends of justice.

Conclusion

27. In the result, the 1[st] appellant/accused No.1 viz., DonkantiRajender, S/o.Gangadhar, in Sessions Case No.289 of 2006, on thefile of the V Additional Sessions Judge (FTC), Nizamabad, is foundguilty of the offences punishable under Sections 498-A and 304-BIPC. Accordingly, the conviction and sentence recorded against himfor three years of rigorous imprisonment under Section 498-A areconfirmed. However, the sentence recorded against him for lifeimprisonment under Section 304-B IPC is modified to the extent ofseven years of rigorous imprisonment. Both the sentences shall runconcurrently. The period of remand underwent by the 1[st]

appellant/accused No.1 during investigation, trial and after convictionshall be given set off under Section 428 Cr.P.C.

28. So far as the other appellants/accused i.e A-2 to A4 inSessions Case No.289 of 2006, on the file of the V AdditionalSessions Judge (FTC), Nizamabad, are concerned, they are all foundnot guilty for the offences punishable under Sections 498-A and 304-BIPC and the conviction and sentences recorded against them byimpugned judgment are set aside. They shall be set at liberty,forthwith, unless they are needed in any other case. The fine amount, ifany paid by them, shall be refunded to them.

29. Accordingly, the Criminal Appeal is partly allowed.

Dated: 31-12-2010

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JUSTICEK.C.BHANU

kvr

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JUSTICE

N.R.L.NAGESWARA RAO