Andhra Pradesh High Court - Amravati
Chedaram Chella Rao vs The State Of A.P. on 9 May, 2023
THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU
CRIMINAL APPEAL NO.908 OF 2010
ORDER:-
This Criminal Appeal is filed by the appellant, who was the accused in Sessions Case No.135 of 2009, on the file of VII Additional Sessions Judge, East Godavari at Kakinada (―Additional Sessions Judge‖ for short), challenging the judgment, dated 31.05.2010, whereunder the learned Additional Sessions Judge found the accused guilty of the charge under Section 304-B of the Indian Penal Code (―I.P.C.‖ for short), convicted him under Section 235(2) of the Code of Criminal Procedure (―Cr.P.C.‖ for short) and after questioning him about the quantum of sentence, sentenced him to suffer rigorous imprisonment for seven years and that the period of remand from 14.04.2007 to 01.12.2007 shall be set off.
2) The parties to this Criminal Appeal will hereinafter be referred to as described before the trial Court for the sake of the convenience.
3) The State, represented by the Sub-Divisional Police Officer, Peddapuram, filed a charge sheet in Crime No.35 of 2007 of Kirlampudi Police Station, alleging the offence under Section 304-B of I.P.C.
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4) The case of the prosecution, in brief, as set-out in the charge sheet is as follows:
(i) The accused is resident of Geddanapalli Village in Kirlampudi Mandal. L.W.1-Sarisey Veerababu and L.W.2-Sarisey Veeramani are the parents of one Ganga Parvathi (hereinafter will be referred to as ―deceased‖). L.W.3-Sarisey Satyanarayana, L.W.4-Sarisey Bulliyya, L.W.6-Sarisey Nooka Raju and L.W.11-
Sarisey Rambabu are the paternal uncles of the deceased. L.W.5-Sarisey Veera Ganesh is the brother of the deceased. L.W.7-Sasrisey Atchi Veni is the aunt of the deceased. L.W.8- Motupalli Devudamma, L.W.9-Bhisetti Satyanarayana and L.W.10- Adari Trimurthulu are the neighbouring witnesses and direct witnesses to the dowry harassment caused by the accused and about the death of the deceased.
(ii) The native place of the deceased is Jagapathinagaram Village in Kirlampudi Mandal. The deceased was the only daughter to her parents apart from two sons. The father of the deceased is working as an agricultural coolie. Parents of the deceased performed the marriage of the deceased with the accused as per the Hindu rights and caste customs about two years ago. Prior to the date of marriage, father of the deceased i.e., L.W.1 promised to give Rs.60,000/- towards dowry to the accused. He sold away his house for a sum of Rs.30,000/- and gave the same to the 3 accused at the time of marriage. After the marriage, parents of the deceased sent the deceased to the house of the accused along with lanchanams to lead marital life. The accused looked after the deceased properly for one year. Later, he developed bad habits and started harassing the deceased with abuses and beatings in drunken state for the balance amount of dowry. Whenever the deceased told the same to L.W.1, he used to tell her that he did not clear the loans borrowed at the time of marriage and he would pay the balance amount of dowry together with interest of Rs.2,000/- and used to pacify her and sent her back to the house of the accused. Previously, accused beat and abused the deceased in the house of L.W.1 in the presence of blood relatives of the deceased for the balance amount of dowry. L.W.1 pacified the same by telling him that he would pay the amount of dowry as early as possible with interest. In the meantime, the deceased was blessed with a son who is aged about six months.
(iii) While so, on 11.04.2007 at 11-00 a.m., the accused and the deceased along with their son went to the house of brother of L.W.1 to attend the marriage of her cousin to be performed on 12.04.2007. Later, the accused went into the village, returned to the house of bridegroom in a highly drunken state and insisted L.W.1 to give Rs.1,000/- out of the balance amount of dowry and created nuisance in the presence of the 4 relatives who attended for the marriage. The deceased having felt insulted, requested L.W.1 to give amount to the accused to avoid the nuisance. Then, L.W.1 told to her that he has no money. About 2-00 p.m., accused grew wild, abused the deceased and took her away from the house of the bridegroom by beating all the way to the house of L.W.1. Later, at about 3-00 p.m., when L.W.1 sent his second son to his house to feed grass to the cattle, he found the deceased hanging from the beam of the room portion of L.W.1 and the accused was found sleeping on the floor of the room along with his son.
(iv) On receipt of written report of L.W.1, L.W.21-Sub- Inspector of Police, Kirlampudi Police Station, registered the case in Crime No.35 of 2007 under Section 304-B of I.P.C. on 11.04.2007. Since the deceased died under suspicious circumstances within seven years of her marriage, L.W.22 being the Sub-Divisional Police Officer, Peddapuram, took up investigation. He inspected the scene of offence in the presence of L.W.15-Kurla Appala Raju and L.W.16-Chedaram Veera Venkata Satyanarayana and prepared rough sketch of the scene of offence. He examined the witnesses and recorded their statements. The Tahsildar, Kirlampudi Mandal, at request of police held inquest over the dead body of the deceased on 11.04.2007 in the presence of L.W.15, L.W.16 and L.W.17-Kodela Narasimha 5 Murthy. Later, he sent the dead body for postmortem examination. L.W.22 arrested the accused on 13.04.2007 and sent him to judicial custody. L.W.18 and L.W.19-the Medical Officers, Community Center, Prathipadu, conducted autopsy over the dead body of the deceased and opined that the cause of death of the deceased was due to Asphyxia due to Throttling. Hence, the accused is liable for punishment under Section 304-B of I.P.C. for having harassed the deceased and subjected her to cruelty and caused her unnatural death.
5) The learned Judicial Magistrate of First Class, Prathipadu, took cognizance under Section 304-B of I.P.C. and numbered it as P.R.C.No.15 of 2007 and after complying the formalities under Section 207 of Cr.P.C., committed the case to the Court of Sessions under Section 209 of Cr.P.C. The Court of Sessions, East Godavari, after numbering it as Sessions Case made over the same to the learned VII Additional Sessions Judge, Kakinada, for disposal in accordance with law.
6) On appearance of the accused before the Court below, the learned Additional Sessions Judge framed charge under Section 304-B of I.P.C. against the accused and explained the same to him in Telugu, for which he denied the same and claimed to be tried.
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7) In order to establish the guilt against the accused, the prosecution before the Court below examined P.W.1 to P.W.15 and got marked Ex.P.1 to Ex.P.19 and during cross examination of P.W.2, P.W.3 and P.W.4, Ex.D.1 to Ex.D.3 were marked respectively. After closure of the evidence of the prosecution, accused was examined under Section 313 of Cr.P.C. with reference to the incriminating circumstance appearing in the evidence let in by the prosecution, for which he denied the same and he did not choose to examine any defence witnesses.
8) The learned Additional Sessions Judge on hearing both sides and on considering the oral as well as documentary evidence, found the accused guilty of the offence under Section 304-B of I.P.C., convicted him under Section 235(2) of Cr.P.C. and after questioning him about the quantum of sentence, sentenced him as above. Felt aggrieved by the same, the unsuccessful accused filed the present Criminal Appeal, challenging the judgment of the Court below.
9) Now, in deciding this Criminal Appeal, the points that arise for consideration are as follows:
(1) Whether the prosecution before the Court below proved that the accused demanded the deceased for the balance dowry of Rs.30,000/- and on account of such harassment meted out to her, she committed suicide and that the 7 prosecution proved the charge under Section 304-B of I.P.C.
against the accused beyond reasonable doubt?
(2) Whether there are any grounds to interfere with the judgment of the learned Additional Sessions Judge? Point Nos.1 and 2:-
10) Smt. Shaik Sultana, learned counsel for the appellant, would contend that the evidence of P.W.1 to P.W.9 is interested in nature and they are kith and kin of the deceased and they are interested in the case of the prosecution. The place of death was not at the house of the accused. On the other hand, it was in the house of the parents of the deceased itself. According to the defence of the accused, on the date of incident he did not visit the house of the parents of the deceased to attend any marriage. On the other hand, it was the deceased who went alone to attend the marriage. The kith and kin of the deceased for obvious reasons deposed false, as if on the date of incident, accused humiliated the deceased in the presence of relatives, who attended the marriage, for Rs.1,000/- which was out of the balance of the dowry. In fact, P.W.1 never presented any dowry to the accused.
The prosecution did not prove that P.W.1 by selling away the house, paid a sum of Rs.30,000/- towards dowry to the accused. Further the prosecution failed to prove that P.W.1 borrowed any amount from Rythu Coolie Sangham to meet the marriage 8 expenses, etc. According to P.W.3, the brother of P.W.1, died about 14 years ago. The prosecution alleged that the marriage was happened in the year 2005. Hence, P.W.1 could not have sold away his house to the dead person. So, how P.W.1 paid dowry amount to the accused was not established by the prosecution. The Court below without appreciating the evidence properly went on to convict the accused, as such, the Criminal Appeal is liable to be allowed.
11) Learned counsel for the appellant would rely upon the
judgment in Appasaheb and another vs. State of
Maharashtra1.
12) Sri Y. Jagadeeswara Rao, learned counsel,
representing the learned Public Prosecutor, would contend that the prosecution established that P.W.1 was residing in the house of his brother on charity basis because he sold away the house. The death of brother of P.W.1 to whom he sold away the house was not in dispute, but P.W.3 mistakenly deposed that he died about 14 years ago. However, in the evidence of P.W.3 clarified that P.W.1 paid the amount to the accused only by selling away his house to his brother. Nothing was elicited during the course of cross examination of P.W.1 to P.W.9 to disbelieve their testimony. The place of death of the deceased was in her parents' 1 AIR 2007 Supreme Court 763 9 house. Accused was found sleeping when the dead body was lying to a beam under the legs of the deceased in fully drunken state. The case of the prosecution is that on the date of incident in a drunken state at bridegroom's house, accused demanded the deceased to get a sum of Rs.1,000/- out of the remaining balance of dowry and when the deceased did not pay the same, he grew wild, beat the deceased in the presence of relatives and took away her by beating. This was categorically spoken by the prosecution witnesses. After going to the house, he went into sleep in a heavy drunken state and deceased felt ashamed of the attitude of the accused hang herself to the beam and under the legs of dead body, accused was sleeping. This is the manner in which the deceased committed suicide. The defence of the accused that he did not visit the village for attending the marriage is nothing but false. The death of the deceased was within seven years from the date of marriage. All the prosecution witnesses consistently spoken about the harassment and further about the incident happened on the date of incident. The Court below with sound reasons found the accused guilty of the charge, as such, the Criminal Appeal is liable to be dismissed.
13) As seen from Ex.P.1, report lodged by P.W.1, the substance of the allegations is that the marriage of the deceased with the accused was performed about two years prior to Ex.P.1. 10 Ex.P.1 was lodged on 11.04.2007. It means that in the year 2005, the marriage between accused and deceased was performed.
14) The further allegations in Ex.P.1 are that P.W.1 agreed to pay a sum of Rs.60,000/- toward dowry and at the time of marriage, he sold away his share of house to his elder brother and paid a sum of Rs.30,000/- and he agreed to pay the rest of the dowry of Rs.30,000/- within one year. Apart from this, he incurred marriage expenses of Rs.60,000/- by borrowing the amount from the caste people and other farmers. Later, he sent his daughter for conjugal life with the accused and accused looked after her properly for a period of one year. 11 months after the marriage, the deceased and the accused were blessed with a male child. He (defacto-complainant) meet the medical expenses at the time of delivery. Later, the accused having addicted to bad habits used to demand the rest of the dowry and used to abuse and beat his daughter. The deceased used to reveal the same whenever she came to his hose. Presently, the defacto- complainant is residing in Door No.1-148 i.e., his younger brother's house in a room towards southern side in Kotha colony. Whenever the deceased told to him that the accused used to demand for rest of the dowry, he used to tell her that even he did not clear the previous debts which he borrowed in connection with 11 the marriage and that he would pay the rest of the dowry with interest. Whenever the deceased and accused came to their house, the accused used to demand the rest of the dowry amount and he used to tell him that he would clear the same within soon with interest. The further allegation with regard to the incident, dated 11.04.2007 is that at 11-00 a.m. in connection with the marriage of his (defacto-complainant) elder brother's son to be performed at 8-00 a.m. on 12.04.2007, the accused and the deceased came to their house. At the marriage house, accused dropped the deceased and went out and returned in a heavy drunken state and demanded Rs.1,000/- out of rest of the dowry amount and quarreled. The deceased asked him (defacto- complainant) to pay a sum of Rs.1,000/- to the accused for which he expressed his inability. Then, the accused grew wild, beat the deceased and took away the deceased at 2-00 p.m. Later, at 3- 00 p.m., he asked his second son Veera Ganesh to go to the house to provide feed of grass to the cattle and then he went to the house and returned back and told that he found the deceased hanging to beam and the accused was sleeping along with the child. Then, he went there and found the deceased lying to beam and accused was sleeping in heavy drunken state. This is the substance of the allegations.
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15) Therefore, Ex.P.1 is consisting of three set of allegations. One is about agreed dowry, paid dowry, balance dowry and the other expenses incurred by the defacto-complaint. Another set of allegation is that the accused used to demand the rest of the dowry and P.W.1 used to convince the deceased that he would clear within soon with interest. Another set of allegation is about the incident happened on 11.04.2007.
16) Now, I would like to appreciate the evidence on record with regard to the above said allegations.
17) As seen from Section 304-B of I.P.C., the essential ingredients are that:
(1) death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances, and (ii) woman is subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for ―dowry‖. The explanation appended to sub-section (1) of Section 304-B IPC says that ―dowry‖ shall have the same meaning as in Section 2 of Dowry Prohibition Act, 1961.
Section 2 of Dowry Prohibition Act reads as under:-
―2. Definition of ―dowry‖ - In this Act ―dowry‖ means any property or valuable security given or agreed to be given either directly or indirectly-
(a) by one party to a marriage to the other party to the marriage; or
(b) by the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person, at 13 or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim.
18) Apart from the above, there is a presumption under Section 113-B of the Indian Evidence Act which runs as follows:
Section 113B in The Indian Evidence Act, 1872 1[113B. Presumption as to dowry death.--When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation.--For the purposes of this section, ―dowry death‖ shall have the same meaning as in section 304B, of the Indian Penal Code, (45 of 1860).]
19) Turning to the case of the prosecution, the allegations either in Ex.P.1 or in the narration of the case of the prosecution in charge sheet is such that the parents of the deceased agreed to provide dowry of Rs.60,000/- at the time of marriage of accused with the deceased and the father of the deceased i.e., P.W.1 sold away his house to his elder brother and paid a sum of Rs.30,000/-
and agreed to pay the rest of Rs.30,000/- at a later time and further he spent an amount of Rs.60,000/- by borrowing from others towards the marriage expenses. The case of the prosecution is that the marriage between the deceased and the accused was performed in the year 2005 and the incident in 14 question was happened on 11.04.2007. So, the prosecution alleged that within two years of the marriage, the death of the deceased was happened otherwise than in normal circumstances. Undoubtedly, the case of the prosecution squarely attracts the essential ingredients of Section 304-B of I.P.C. if the evidence adduced by the prosecution is trustworthy, believable and convincing.
20) P.W.1, the father of the deceased, deposed that his daughter name is Ganga Parvathi and she was given in marriage to accused in the year 2005. At the time of betrothal, he agreed to pay Rs.60,000/- as dowry to the accused, but, he paid Rs.30,000/- at the time of marriage. He got that amount by selling away his house portion to his elder brother. He borrowed Rs.60,000/- from Rythu Coolie Sangham for marriage expenses and other lanchanams. The accused and his daughter lead happy marital life for one year and were blessed with a male child. Thereafter, the accused used to beat his daughter demanding her to give remaining dowry amount of Rs.30,000/- and he used to beat his daughter for not bringing dowry amount. His daughter used to inform him about the same. She used to come to his house every week on Wednesday whenever she visits Shandy market at Kirlampudi and accused village is at a distance of four kilometers away from his village. With regard to the incident 15 happened on 11.04.2007, he deposed that on 11.04.2007 accused, his daughter (deceased) and his grandson came to the house of his elder brother at Jagapathinagaram to attend the marriage of his brother's son to be held on 12.04.2007. On 11.04.2007 accused waited for some time at the house of his brother in the marriage pendal, went outside and returned back in drunken state of mind at 1-00 p.m. He took his meals at his brother's house and asked his daughter to give Rs.1,000/- by asking him (PW.1). When he replied to his daughter that he has no money at present and he will avail loan with interest and to pay the balance dowry to the accused. The accused grew wild, abused his daughter in the presence of other relatives and took away her to the house of him (P.W.1). At 3-00 p.m., he asked his son P.W.4 to go to his house to feed grass to the cattle. His brother's house is at a distance of half kilometer away to his house. When P.W.4 went to his house, he noticed his (P.W.1) daughter hanging to a beam in the house. On seeing the incident and being afraid of it, he came back to his (P.W.1) brother's house and informed the same to L.W.3 and L.W.11. Then he, L.W.3 and L.W.11 came to their house and noticed that his daughter was hanging and the accused was sleeping in drunken state of mind underneath his daughter's legs along with his grandson. On seeing them, accused woke up and ran away. He 16 gave report to police. It is Ex.P.1. Police came and enquired about the offence and got down the dead body with the help of L.W.11 and L.W.10. Mandal Revenue Officer conducted inquest over the dead body and also examined him. Mandal Revenue Officer also examined his wife. The accused caused the death of his daughter for non-payment of dowry. After the inquest, dead body was handed over to them.
21) P.W.2, the wife of P.W.1 and mother of deceased, deposed with regard to the agreement relating to dowry for Rs.60,000/- and payment of Rs.30,000/- and further promise made by P.W.1 to pay the rest of dowry after some time as spoken to by P.W.2. She further deposed that P.W.1 borrowed a sum of Rs.60,000/- from Rythu Coolie Sangham to meet the marriage expenses. Accused was addicted to drinking and used to demand her daughter to bring the balance dowry. She deposed that on 11.04.2007 accused and her daughter came to the village to attend the marriage of her husband's brother's son to be performed on 12.04.2007. They were present at the house of P.W.1's brother. Accused went outside and returned to the house in fully drunken state of mind. He had his meals in the house of her husband's brother. Accused requested her daughter to give Rs.1,000/- by asking from P.W.1 towards balance of dowry amount. When her daughter asked Rs.1,000/-, P.W.1 replied that 17 he would give the remaining balance amount by availing loan on interest and requested the accused to wait for some time. Then, the accused beat and scolded her deceased daughter and took her to their house which is at a distance of one kilometer away. She, P.W.1 and L.W.5 remained at the marriage house of P.W.1 up to 2-00 p.m. At 2-00 p.m. her husband asked their son to go to the house in order to feed the grass to cattle. Then, he went to the house and saw inside of the house and noticed her daughter hanging to a beam by tying her saree around the neck. By then, the accused was lying on the ground along with his son in drunken state of mind. Her son came back and informed the same and then they all rushed to their house and found that her daughter was hanging to beam. P.W.1 presented a report to the police.
22) P.W.3 is one of the brothers of P.W.1 and who supported the evidence of P.W.1 with regard to the allegation that P.W.1 agreed to give Rs.60,000/- to the accused towards dowry, but, he could pay only Rs.30,000/- and even he paid that amount by selling the house to his brother Pothayya and he spent an amount of Rs.60,000/-. He further deposed that accused was addicted to drinking and used to beat deceased Ganga Parvathi with a demand to bring rest of the dowry and deceased used to come to the house of P.W.1 and used to report the same to P.W.1 18 and to them. With regard to the incident happened on 11.04.2007, he deposed in support of the evidence of P.W.1 and P.W.2. His evidence in substance in this regard is that both Ganga Parvathi and accused together came to the village one day prior to the marriage of Pothayya's son. The accused came in drunken state and created galata and beat Ganga Parvathi on seeing other relatives of the family members. He made his wife to ask her parents to pay Rs.1,000/- for which P.W.1 and P.W.2 expressed inability to pay the dowry at present. However, they agreed to give that amount by availing loan on interest. Then, the accused took his wife by beating to the house of P.W.1 which is at a distance of four furlongs away. Later, the son of P.W.1 went to feed the cattle and found Ganga Parvathi was hanging to the house beam with saree. Accused was found lying on the ground in drunken state along with his son. L.W.5 came back and informed the same. Then, he and others went there and on seeing them, the accused fled away. Then P.W.1 went to the police station and presented a report.
23) P.W.4, the son of P.W.1 and P.W.2 and brother of the deceased, supported the case of the prosecution with regard to the incident occurred on 11.04.2007. Accused demanded his sister Ganga Parvathi to give Rs.1,000/- towards balance of dowry by asking from her parents. His sister asked P.W.1 to pay 19 Rs.1,000/- to the accused for which P.W.1 stated to the accused that he will pay that amount after some time. Then, the accused took away his sister from his senior paternal uncle's house. At about 2-00 to 3-00 p.m., P.W.1 asked him to go to the house to feed the grass to the cattle. Then he went to the house and heard cries of accused son and the door was kept opened to some extent. He entered into the house and saw his sister hanging to the house beam with a saree tied around her neck. The accused was lying on the ground in a drunken state underneath the hanging of his sister. Then, he immediately came to his senior paternal uncle and informed the same to P.W.3 and L.W.11. Then, all of them came to the spot and found the incident.
24) P.W.5, the relative of P.W.1 and P.W.2, supported the case of the prosecution with regard to the dowry issue. Though he admitted in cross examination that when the marriage talks were held between the accused family and P.W.1 family, he is not there, but, he categorically deposed with regard to the incident happened on 11.04.2007. He deposed about the drunken condition of the accused on 11.04.2007 and demanding P.W.1 to pay Rs.1,000/- out of balance dowry. He testified that when P.W.1 expressed his inability to pay that amount, he grew wild and raised a dispute with Ganga Parvathi, beat her and took her by holding her hand to the house of P.W.1 which is at a distance 20 of one furlong away. He further supported the case of the prosecution that P.W.1 sent P.W.4 to feed the grass to cattle and then P.W.4 found the deceased hanging to the house beam and returned back and intimated the incident.
25) P.W.6 was examined by the prosecution to speak about the incident happened on 11.04.2007 and she supported the case of the prosecution with regard to the quarrel made by the accused by demanding Rs.1,000/- and inability of P.W.1 to comply the demand and further that the accused took away Ganga Parvathi by beating her and later P.W.4 went to the house to feed the grass to cattle and found hanging of Ganga Parvathi to the house beam, etc.
26) P.W.7, the elder brother of P.W.1 supported the case of the prosecution with regard to the dowry issue and the incident happened on 11.04.2007. With regard to the incident happened on 11.04.2007, he specifically deposed that accused grew wild and caught hold the hand of Ganga Parvathi. When P.W.1 expressed his inability to pay Rs.1,000/- towards balance dowry he took her to the house of P.W.1.
27) According to the evidence of P.W.8, two years after the marriage, the accused and his wife attended the marriage of Pothayya's son and from Pothayya's house, the accused took away his wife to the house of P.W.1.
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28) P.W.9 who was also brother of P.W.1 supported the case of the prosecution with regard to the dowry issue and the incident happened on 11.04.2007 in toto.
29) Now, it is a matter of appreciation to decide as to whether the evidence adduced by the prosecution is convincing. During the cross examination, P.W.1 deposed that he stated before M.R.O. as in Ex.D.2, but he did not state the same to the police. He admitted that he did not state before police or did not mention in Ex.P.1 that the deceased used to visit their house as and when she attends Shandy market held at Kirlampudi and used to report in those occasions that the accused used to demand her to bring dowry. He sold away his house to his brother to meet the marriage dowry amount, but, he did not execute any document. He denied that he did not sell away his residential house. He denied that he did not avail loan from Rythu Coolie Sangham to meet the marriage expenses and lanchanams. Prior to this offence, he did not give any complaint to police against the accused for the alleged demand of dowry and harassment. He denied that since the date of marriage, there were differences arose between him and accused father, as such, he foisted false case. He denied that accused did not attend the house of his brother to attend the marriage. He denied that he did not state before police that accused was lying on the ground 22 under the legs of her daughter in drunken state. He denied that accused was not present at his house on 11.04.2007 at 2-00 p.m. or prior to that at the house of his brother. He denied that the marriage of his daughter with the accused was held about seven years back prior to the offence. He denied that he is deposing false.
30) Coming to the evidence of P.W.2 during cross examination, she denied that on 11.04.2007 accused and her daughter did not come to the house of Pothayya to attend his son's marriage to be held on 12.04.2007. She denied that she did not state before M.R.O. that accused called her and P.W.1 and asked them directly to pay Rs.1,000/-. It is true that they stated before M.R.O. that accused directly asked her and her husband to pay Rs.1,000/- out of the balance dowry amount of Rs.30,000/- as in Ex.D.1. She denied that accused did not demand the amount of Rs.1,000/-. She denied that on 11.04.2007 her deceased daughter came along with her son to attend the marriage and accused did not come to their village and that due to enmity and misunderstandings, she is deposing false.
31) P.W.3 during the course of cross examination denied that no dowry was given to the accused and from the date of marriage, there were differences arose between family of the accused and P.W.1 and that he is deposing false. He further 23 denied the defence of the accused that on 11.04.2007 the accused did not come to the village to attend the marriage to be held on 12.04.2007. P.W.4 during cross examination stated that he stated before police as in Ex.D.3. He denied that the accused did not demand to bring Rs.1,000/- and that he is deposing false, etc. P.W.6 and P.W.7 during cross examination denied that on 11.04.2007 accused did not come to attend the said marriage.
32) As evident from the above cross examination part of P.W.1 to P.W.7, the defence of the accused is denial of simplicitor stating that he never demanded any dowry and Rs.1,000/- on the date of incident and he did not attend the village of P.W.1 to attend the marriage to be held on 12.04.2007. During cross examination of P.W.15, the Sub-Divisional Police Officer i.e., investigating officer, accused elicited some answers as regards the omissions and in that view of the matter, P.W.15 stated that P.W.1 did not state before him as and when the deceased visited Shandy market, she used to visit the house of P.W.1. P.W.1 did not state before him that he availed loan of Rs.60,000/- form Rythu Coolie Sangham. He did not state before him that after meals at the marriage pendal, accused asked Rs.1,000/-. He did not state before him that he would avail loan on interest to pay the balance dowry amount. He did not state before him that the accused was on the ground underneath the legs of the deceased. 24
33) It is to be noticed that the substratum of the case of the prosecution was not developed by virtue of the above omissions suggested to P.W.1 and elicited from the mouth of P.W.15. In Ex.P.1, P.W.1 did not disclose that the deceased used to attend Shandy market at Kirlampudi, but he mentioned that the deceased used to tell him whenever she visits the village about the dowry demand and harassment made by the accused. Therefore, this omission is not at all a serious one. Apart from this, what P.W.1 mentioned in Ex.P.1 is that he availed loan from the caste people and farmers, but he did not specifically stated Rythu Coolie Sangham. So, there was allegation that to meet the marriage expenses of Rs.60,000/-, P.W.1 incurred debts. Apart from this, there is a whisper in Ex.P.1 that P.W.1 promised to pay the rest of the amount at a later time. Under the circumstances, the omissions that are elicited from the mouth of P.W.15 are not at all material. Apart from this, there is categorical allegation that when P.W.4 went to their house to feed the grass to cattle, he found the deceased hanging to the house beam and the accused was found sleeping underneath legs of the deceased and then he returned back and intimated to P.W.1 and P.W.1 went there and found the same. It means that P.W.1 found the dead body of the deceased lying to beam underneath the accused was sleeping. Therefore, simply because the words ―legs‖ were not spoken to by 25 P.W.1 before the investigating officer, it does not mean that he did not find that accused was sleeping on ground in drunken condition when the dead body was lying to the beam. So, what all the omissions that were agitated are nothing but trivial. In that view of the matter, the omissions attributed to P.W.2 that she did not reveal literally the name of Rythu Coolie Sangham and she did not reveal that the demand was made by accused ―after meals‖ and that P.W.1 promised to pay the balance by availing loan with interest, etc., are nothing but trivial. Similarly, according to the accused, P.W.3 did not state before him that accused was in drunken state of mind while coming along with Ganga Parvathi to the house of Pothayya to attend the marriage function and that accused created galata. What is the material is the galata created by the accused at the marriage function. What all the omissions that are attributed as above, assumes no importance.
34) Coming to Ex.D.1, accused asked P.W.1 to give Rs.1,000/- from the remaining balance amount of dowry. According to Ex.D.2, P.W.1 and his wife were called and asked by the accused to give Rs.1,000/- from the remaining balance of dowry. According to Ex.D.3, P.W.4 returned back by running and informed the incident to kith and kin and they rushed there. Ex.D.3 is also not material. Ex.D.1 to Ex.D.3 would not make the case of the prosecution as suspicious. What is criteria is as to the 26 demand made by the accused at the marriage pendal on 11.04.2007 in a drunken state to pay a sum of Rs.1,000/- which is out of the balance amount of dowry is perceived by PW.1 and P.W.2 or not. It is immaterial whether the accused demanded Rs.1,000/- P.W.1 and P.W.2 directly or it was made through the deceased. As pointed out all the prosecution witnesses supported the case of the prosecution with regard to the incident on 11.04.2007. Ex.D.1 to Ex.D.3 are of no use to the case of the defence.
35) Admittedly, it is a case according to the case of the prosecution, P.W.1 happened to get a sum of Rs.30,000/- by selling away his house to his elder brother Pothayya. Admittedly, there was no document to that effect. P.W.3 deposed that Pothayya died about 14 years ago. Basing on this, the accused wanted to take an advantage. He made every effort before the Court below to contend that when Pothayya died about 14 years ago, there was no question of selling away the house by P.W.1 in the year 2005. Another contention is that the marriage of him with the deceased was happened more than seven years. It is to be noticed that the word 14 years as spoken by P.W.3 must have been a slip of tongue. Even it was observed by the trial Court accordingly. Apart from this, P.W.3 specifically deposed that P.W.1 sold away his residential house to his brother Pothayya and 27 realized the amount of Rs.30,000/- which was given to the accused towards dowry amount. He further specially deposed that the marriage was happened in the year 2005. So, the intention of the accused was to take an advantage, as P.W.3 deposed that Pothayya died about 14 years ago. Under the circumstances, accused cannot take an advantage on the ground that there was no question of P.W.1's selling away the house to Pothayya.
36) It is to be noticed that the specific case of the prosecution is that P.W.1 used to reside in the house bearing Door No.1-148, which is belonging to the younger brother of P.W.1 and he used to reside in a room in southern part of the house. It is exactly in this part of the house the deceased, according to the case of the prosecution, was died otherwise than any normal circumstances. Ex.P.3, inquest report, shows that inquest panchanama was also held in the part of the house. Therefore, the fact that P.W.1 used to reside in the small room of his younger brother's house means that as on the date of incident, P.W.1 was not having any house of his own. When P.W.1 sold away his house to his blood relative that is a portion of the house, there may not be any document to that effect. The place of death of the deceased was not in dispute. It is not the defence of the accused that the house bearing Door No.1-148 is pertaining to 28 P.W.1. So, the contention of the accused that P.W.1 did not sell away the house for a sum of Rs.30,000/- is not tenable.
37) Though P.W.1 and P.W.2 are not able to produce any proof with regard to the borrowings made to meet the further expenditure, but, it is categorically supported by kith and kin of P.W.1 and P.W.2. Nothing is elicited during the cross examination of P.W.1 and P.W.2 to disbelieve the case of the prosecution in this regard. Under the circumstances, this Court has no reason to disbelieve the case of the prosecution that P.W.1 agreed to provide dowry of Rs.60,000/- to the accused and could be able to pay only Rs.30,000/- and he could not comply the said amount due to financial constrains. According to the evidence of P.W.1 and P.W.2, accused used to demand the deceased to get back the rest of the dowry amount. Under the circumstances, having gone through the evidence of P.W.1, P.W.2, P.W.3, P.W.5, P.W.7 and P.W.9 and their cross examination part, absolutely, accused failed to elicit anything from the cross examination so as to disbelieve their testimony.
38) Coming to the marriage between the accused and the deceased, prosecution did not suggest any date or month, but the consistent evidence of P.W.1 and P.W.2 is that the marriage was performed in the year 2005. Even P.W.3 deposed that the marriage was performed in the year 2005. A vague defence was 29 raised before P.W.1 that the marriage was performed about seven year ago prior to the death of the deceased. Accused failed to probabalize his defence. There was no dispute that accused and deceased were blessed with a male child. The accused wanted to take an advantage because P.W.1 and P.W.2 did not produce any wedding card or horoscope, etc. But, there is consistent evidence to prove that the marriage of deceased with the accused took place in the year 2005.
39) It is to be noticed that the accused had no consistent defence disputing the year of the marriage. Except, a vague suggestion before P.W.1 that the marriage was held about 7 years ago, there remaining nothing to support of the defence. The obvious effort that the marriage was performed more than 7 years prior to the death of the deceased was only to escape from the statutory presumption under Section 113-B of the Indian Evidence Act. When P.W.2 deposed that the marriage was performed in the year 2005, accused did not challenge her testimony. Similar is the situation in respect of the evidence of P.W.3. When P.W.5 deposed that the daughter of P.W.1 and P.W.2 i.e., Ganga Parvathi's marriage was performed with the accused in the year 2005, he did not challenge the testimony of P.W.5. When P.W.7 testified that the marriage was performed in the year, 2005, the accused did not challenge his testimony. 30 Similar is the situation in respect of the evidence of P.W.8. So, except a vague defence that the marriage was performed more than seven years ago, accused has no date, month or year of the marriage. Therefore, this Court has no reason to disbelieve the case of the prosecution that the marriage of the deceased was performed with the accused in the year 2005.
40) P.W.1 to P.W.9 consistently spoken to the fact that the deceased and accused came together to the brother's house of P.W.1 in the village to attend the marriage of Pothayya's son to be performed on 12.04.2007. They have consistently spoken to the fact that the accused consumed liquor by going outside, returned back and demanded the deceased to give Rs.1,000/- out of the balance dowry amount of Rs.30,000/- for which P.W.1 expressed his inability and then the accused grew wild and took away the deceased by beating or force. It is further consistent case of the prosecution that when P.W.4 was deputed by P.W.1 to feed the grass to the cattle, P.W.4 found the deceased hanging to the house beam and the accused was lying on the ground by sleeping with his son in drunken state. Hence, this evidence was spoken to by P.W.1 to P.W.9. The contention of the accused is that he did not attend the marriage on 11.04.2007 and it was the deceased who alone attended the marriage. It is very difficult to accept such a contention. The accused failed to probabalize a 31 theory that there were bitter ill-feelings between P.W.1 and accused family, as such, he was falsely implicated.
41) It is to be noticed that what were such bitter ill- feelings that cropped up during the marital life between him and father of the deceased was not explained by the accused. On the other hand, he set up a false defence that the marriage was held more than seven year ago. On the other hand, the evidence on record proves that the marriage was held in the year, 2005. Therefore, it is for the accused to probabalize how there could be such bitter ill-feelings for no fault of him. If really such ill-feelings were there, accused would not have kept quiet all through. It is a case where P.W.6, the independent witness to the occurrence and who had nothing to do with the family of the accused and P.W.1, categorically deposed about the incident happened on 11.04.2007. It is his specific evidence that in drunken state while beating Ganga Parvathi, accused took her away to P.W.1's house while seeing other relatives. Virtually, P.W.6 had no reason to depose false in support of the prosecution. Under the circumstances, the evidence adduced by the prosecution with regard to the incident happened on 11.04.2007 is fully convincing and it is believable and it is inspiring confidence in the mind of the Court. Therefore, the place of death of the deceased was in southern room in the brother's house of P.W.1 where P.W.1 used 32 to reside. So, the facts and circumstances are such that on account of harassment made by the accused against the deceased with a demand to get back the rest of the dowry amount of Rs.30,000/- and further the serious harassment made by the accused on 11.04.2007 in the presence of relatives in a drunken state to pay a sum of Rs.1,000/- to him which is out of the rest of the dowry amount and when the accused took away the deceased to the house of P.W.1 by using force, the deceased felt ashamed of it and committed suicide. It is the case of the prosecution. The condition of the accused while the deceased was hanging to a house beam by sleeping under the legs of the deceased in a drunken state along with the small child shows how desperate he was. His defence that he did not go to attend the marriage on that day is nothing but false in the circumstances of the case.
42) P.W.10 is the mediator to the observation of the scene of offence under Ex.P.16, who supported the case of the prosecution. He was also inquest panchayatdar and he supported the case of the prosecution with regard to the inquest. P.W.16, the then Mandal Executive Magistrate spoken about conducting of inquest and opinion arrived at the inquest. P.W.13 is the Photographer, who took photographs under Ex.P.6 over the dead body of the deceased. P.W.14 is the Sub Inspector of Police, who 33 received the report from P.W.1 and registered Ex.P.7 FIR. P.W.15 is the Sub Divisional Police Officer, who conducted investigation.
43) There is medical evidence by examination of P.W.12 and according to the evidence of P.W.12, he examined the dead body of the deceased and found the following injuries:
(1) A contusion on one inch above the left eye brow, measuring 3x2 cm size, light brown in colour;
(2) Two bruises are present an anterior aspect of front of neck, right side bruise is 2x1 cm size, horizontal in line dark brown in colour. Abraded left side bruise is measuring 2x1 ½ cm size. Hemi circle is shape oblique in line;
(3) Two lenior abrasion present below the above mentioned second injury 1xscrach, 1 ½ cm x scratch dark brown in colour;
(4) A lenior cut injury on medial boarder of left foot, vertical in line 1 ½ x scratch red in colour;
(5) A black coloured mark present on right side of the neck, not abraded;
(6) Three unhealed abrasions on right arm, pus plugs present on the wound;
(7) Unhealed foll culits present on the right calf muscle; and (8) A black coloured mark present at right side neck, no line of redness present, not abraded.34
Above mentioned all seven injuries ante mortem in nature and 8th injury is postmortem in nature.
Tongue lightly protruded, bleeding marks present. Right side angle of mouth are having marks of blood. Haemorrhage present at pharynx, base of the tongue and upper part of the larynx; haemorrhage present underneath the subcutaneous tissue of front of neck. Bruises present superficial fascia, deep fascia, and sheaths of muscles of neck, haemorrhage present in the neck tissue, fracture of superior cornee of thyroid present. Inward fracture of posterior fragment of hyoid bone present. Cricoid cartilage is fractured.
Cynosis present at both sides of fingers of hands, both palm of hands, face and upper part of the neck. A snuff coloured design saree tied around the neck in three rounds and with running noose present at the end, cut the saree in front of the neck and tied the both ends with white thread and keep in a plastic bag and handed over the police. M.O.1 is the saree.
He is of the opinion that the cause of death is due to Asphyxia due to throttling. Postmortem report is marked as Ex.P.4 and the opinion is marked as Ex.P.5.
44) It is to be noticed that according to the information under Ex.P.4, the cause of death of the deceased is due to Asphyxia due to throttling. The defence counsel cross examined 35 him in lengthy suggesting that the case of death of the deceased is suicide but it is not a cause of throttling.
45) It is to be noticed that in Ex.P.1, there was no allegation that the deceased was murdered. Even the investigation was not of such lines. Though the investigating officer had knowledge of the contents in Ex.P.4 that the death was due to Asphyxia due to throttling and he mentioned it in the charge sheet, but charge sheet was not laid under Section 302 of I.P.C.
46) Under the circumstances of the case, this Court in fact pondered over about the possibility to remand the matter to the trial Court with a direction to frame a charge under Section 302 of I.P.C. also in addition to the charge under Section 304-B of I.P.C. Having examined the issue carefully and looking into the observations in the inquest panchanama and also looking into the answers spoken by P.W.15 during cross examination, this Court is of the considered view that it is unsafe to take into consideration of the opinion in Ex.P.14, postmortem report to arrive at a prima facie satisfaction that the death was of homicidal. The reasons are that according to Ex.P.3 inquest panchanama, there was protruded from the mouth of the deceased which was cut between the teeth and further there was saliva coming from the mouth and further there were stains of urine and stools on the ground 36 corresponding to the hanging position of the dead body. The above could be signs of hanging.
47) During the course of cross examination of P.W.15, the investigating officer, deposed that in the scene of offence, he did not find the broken bangles or parts of ornaments wear by the deceased. The clothes worn by the deceased was not torn and they did not have any cuts. He did not find any disturbance at the scene of offence or struggle or dragged marks. He did not find any blood marks in the scene or in the clothes. It is true that he find faecal substance on the ground where the deceased was found hanging. He further found a plastic stool and plastic chair. From the southern side angle of the mouth, saliva was trickling on to chin and on the chest of the deceased. There was saree knot found on the northern side of the neck. The height of the beam was 9 feet 7 inches from the ground. The distance between the saree and knot and beam was 3 feet 7 inches and the distance between the neck and beam was 4 feet 1 inch. Apart from this, P.W.12, the medical officer during cross examination deposed that the inward fracture and outward fracture of the neck depends upon the force used by the assailant or depending upon the weight of the body and force of the body.
48) It is no doubt true that according to the postmortem report and the evidence of P.W.12, inward fracture of posterior 37 fragment of hyoid bone present. In that view of the matter, P.W.12 in cross examination stated that even in case of hanging, there was also a possibility in that fracture depending on the weight of the person. Having looked into the observations in the inquest panchayatdars with regard to the saliva and further looked into the answers of investigating officer, I am of the considered view that somewhat the postmortem report under Ex.P.14 is nothing but in confusion, as such, it cannot be a basis to arrive at a prima facie satisfaction that the death was of due to Asphyxia due to throttling. The injury Nos.1 to 7 could be ascribed to the act of the accused that he took away the deceased from the marriage place to the house of P.W.1 by beating. Under the circumstances, this Court is not inclined to remand the matter as above. What is evident from Ex.P.12 coupled with the direct evidence is that the death of the deceased was of otherwise than in normal circumstances and it is a case of suicide according to the case of the prosecution, for which there is convincing evidence.
49) Having regard to the above, I am of the considered view that the prosecution is further able to establish that the deceased died otherwise than in normal circumstances within two years from the date of marriage and cause of death was nothing but due to Asphyxia due to hanging according to the evidence 38 adduced. In such circumstances, in my considered view, the presumption under Section 113-B of the Indian Evidence Act is further strengthening the case of the prosecution.
50) This Court has gone through the decisions of Appasaheb's case (supra), wherein it was held that a demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. It is to be noticed that in this case, the prosecution established consistently as to the demand made by the accused to pay the balance dowry amount of Rs.30,000/- and the accused was so disparate that in drunken state at the marriage function of the deceased in the presence of relatives, he demanded a sum of Rs.1,000/- stating that it should be out of the rest of the balance dowry and further manhandled the deceased and took away with force. Therefore, the demand made by the accused for a sum of Rs.1,000/- cannot be taken as for some other purpose other than the dowry. So, the prosecution is able to establish the conduct of the accused right from the beginning. Hence, the above decision is of no use to the case of the prosecution.
51) In the light of the above, I hold that the evidence adduced by the prosecution is convincing and believable and the evidence on record squarely proved the case of the prosecution 39 beyond reasonable doubt. The learned Additional Sessions Judge, rightly analysed each and every aspect in the case of the prosecution and with tenable reasons, found the accused guilty of the charge under Section 304-B of I.P.C. Having regard to the above, I do not see any reason to interfere with the same. Before the Court below the prosecution has categorically proved the charge under Section 304-B of I.P.C. against the accused beyond reasonable doubt, as such, the Criminal Appeal is liable to be dismissed.
52) In the result, the Criminal Appeal is dismissed, as such, the judgment, dated 31.05.2010 in Sessions Case No.135 of 2009, on the file of VII Additional Sessions Judge, East Godavari at Kakinada, shall stands confirmed in all respects.
53) The Registry is directed to take steps immediately under Section 388 Cr.P.C. to certify the order of this Court to the trial Court on or before 15.05.2023 and on such certification, the trial Court shall take necessary steps to carry out the sentence imposed against the appellant and to report compliance to this Court.
Consequently, miscellaneous applications pending, if any, shall stand closed.
________________________ JUSTICE A.V. RAVINDRA BABU Dt. 09.05.2023. PGR 40 THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU CRL. APPEAL NO.908 OF 2010 Registry to circulate a copy of this order to the Court below on or before 15.05.2023.
Date: 09.05.2023 PGR