Andhra HC (Pre-Telangana)
Damera Sampath, S/O. Mallaiah, Aged 26 ... vs State Of Andhra Pradesh Rep. By Its ... on 17 April, 2014
Bench: L. Narasimha Reddy, M.S.K.Jaiswal
THE HONOURABLE SRI JUSTICE L. NARASIMHA REDDY and THE HONOURABLE SRI JUSTICE M.S.K.JAISWAL
CRIMINAL APPEAL No.196 of 2013
17-04-2014
Damera Sampath, S/o. Mallaiah, Aged 26 years, Occ: Agriculture, Resident of
Chilpur Village, Ghanpur Mandal, Warangal District and others . Appellants
State of Andhra Pradesh Rep. by its Public Prosecutor, High Court of
A.P.Hyderabad . Respondent
Counsel for the Appellants: SRI P. PRABHAKAR REDDY
Counsel for Respondent: PUBLIC PROSECUTOR
<Gist :
>Head Note:
?Cases referred:
THE HONBLE SRI JUSTICE L.NARASIMHA REDDY
AND
THE HONBLE SRI JUSTICE M.S.K.JAISWAL
CRIMINAL APPEAL No.196 of 2013
JUDGMENT:(Per LNR,J) One Godishala Rajitha, the daughter of Godishala Aruna (P.W.1) and Godishala Kumaraswamy (P.W.2) of Ippagudem, Warangal District, was married to Damera Sampath-A.1, the son of Damera Rajamma-A.2 and Damera Mallaiah-A.3 of Chilpur Village. A.4 and A.5 are brothers and A.6 is the married sister of A.1. Rajitha (hereinafter referred to as the deceased) died, by consuming pesticide on 18.10.2011. P.W.1 submitted a complaint on 19.10.2011 at 11.00 a.m before the Station House Officer, Ghanpur, stating inter alia that the marriage of the deceased and A.1 took place six years prior to the date of complaint, at the time of marriage, a sum of Rs.2,00,000/- and other articles were given and thereafter, A.1 started demanding Rs.1,00,000/- and threatened the deceased with dire consequences if the amount is not brought. Panchayats were said to have been held in this behalf. A.1 is also said to have harassed the deceased stating that she was not beautiful, she gave birth to female children and that he intends to marry another woman. On 18.10.2011, A.5 is said to have informed P.W.2 on phone that the deceased consumed pesticide near a well in the agricultural field and that she has been admitted in Mahatma Gandhi Memorial Hospital at Warangal, for treatment. P.Ws.1 and 2 are said to have gone to the hospital at 6.00 p.m and they found their daughter in the mortuary, as dead. P.W.1 alleged that all the accused are responsible for the death of her daughter.
Crime No.227 of 2011 was registered by the police against the accused alleging offence punishable under Section 304-B I.P.C. The steps, such as, preparation of scene of offence panchanama, causing of inquest and post mortem of the dead body were taken as required under law. Since the offence punishable under Section 304-B I.P.C was alleged, the charge sheet was filed by the Sub Divisional Police Officer, Kazipet.
On the basis of the allegations contained in the charge sheet, the trial Court framed charges alleging offences punishable under Sections 302, 304-B and 498-A I.P.C and Sections 3 and 4 of the Dowry Prohibition Act (for short the Act). The accused pleaded not guilty. In the trial that ensued, P.Ws.1 to 14 were examined and Exs.P.1 to P.8 were filed. No material objects were marked.
Through its judgment dated 22.01.2013, the trial Court acquitted A.1 to A.6 of the offences punishable under Section 302 I.P.C and Section 3 of the Act. However, it was held that they are guilty of the offences punishable under Sections 498-A and 304-B I.P.C and Section 4 of the Act. For the offence punishable under Section 304-B I.P.C, the accused were sentenced to undergo rigorous imprisonment for life. The punishment of rigorous imprisonment for three years was imposed for the offence punishable under Section 498-A I.P.C. In relation to the offence punishable under Section 4 of the Act, the sentence of rigorous imprisonment for a period of two years and fine of Rs.5,000/- each, in default to undergo simple imprisonment for three months, was imposed. All the punishments were directed to run concurrently. This appeal is preferred by A.1 to A.6.
Sri P. Prabhakar Reddy, learned counsel for the accused submits that the judgment of the trial Court is perverse inasmuch as the conviction was ordered and sentence was imposed though there is no evidence to prove the offences alleged against the accused. He submits that the demand of dowry by the accused was not at all proved and on account of the mere fact that the death of the deceased took place within seven years of the marriage, the entire family was sent to prison.
The learned counsel further submits that the death occurred in the agricultural field, and an independent witness-P.W.4 stated that everything was normal in the field and in the lunch hour, the deceased went to the house to feed milk to the sucking baby and after lunch also, they found the deceased started collecting cotton along with them and after some time, the deceased fell down on the ground. He submits that the evidence of P.W.4 is so truthful, so much so, she accompanied the deceased to the hospital and not a single word was said by this witness, which would throw suspicion as to the involvement of A.1 to A.6 in the death of the deceased. He further submits that P.Ws.1 to 3 have no knowledge about the death and even according to them, the intimation about the incident was given by A.5 and if the accused had anything to do with the death of the deceased, the information would not even passed by them.
The learned counsel submits that the evidence of P.W.6, neighbour of the family stated that she saw the deceased coming home to give milk to the baby and the elder daughter playing with A.2 and that this witness also did not speak anything against the accused. He submits that though P.W.9, a distant relative of the deceased, made an effort to make out a case; several contradictions and unnatural aspects were elicited from him in the cross examination. He further submits that relevant suggestions were made to various witnesses to the effect that P.Ws.1 and 2 insisted on A.1, to marry their another daughter and when A.1 refused to accede to that request, they have falsely implicated all the accused taking advantage of the unfortunate suicide of the deceased.
Learned Additional Public Prosecutor, on the other hand, submits that the death of the deceased occurred within seven years from the date of marriage and thereby, Section 304 I.P.C gets attracted. She contends that though the deceased committed suicide, it was on account of the harassment caused to her by the accused by demanding additional dowry and that, the trial Court has taken into account the evidence of an independent witness and arrived at a conclusion that the deceased committed suicide unable to bear the harassment and that the judgment of the trial Court does not warrant interference.
The information about the death of the deceased reached the police, with the submission of a complaint by P.W.1. Even from a perusal of Ex.P.1, it is evident that the information about the occurrence was furnished to P.W.2 by A.5, the brother of A.1. P.Ws.1 and 2 are the parents of the deceased. They proceeded to the hospital, where the deceased was admitted for treatment and by the time they have gone there, she was dead.
P.W.1 stated about the demand made by A.1 to A.3 and that she gave Rs.2,00,000/- cash at the time of marriage. She further stated that A.6 is residing in the same house with A.1 and A.2. According to this witness, the deceased was looked after well till the first female child was born, but after the birth of second female child, A.1 used to beat the deceased and A.2 to A.6 used to abuse her to get additional dowry of Rs.1,00,000/-. She has also stated that the deceased used to complain about this whenever she came to their place. She further stated that one day prior to the incident, A.1 beat the deceased in the cotton field itself and A.1 has called P.W.2 from the field itself on phone and asked him to take her away. The information about the incident is said to have been received on telephone by P.W.2 at 4.30 p.m. In the cross examination, it was suggested to P.W.1 that she wanted to give her unmarried daughter to A.1 and that the latter refused. She expressed her inability to give the dates of panchayats, which were said to have been held. She admitted that no document was executed in relation to the panchayats and that no complaint was given in relation to the same. She admitted that the deceased was taken to the hospital by the accused and was provided treatment.
The chief examination of P.W.2 proceeded on the same lines. To contradict the statement of P.W.1 that A.6 was residing with her parents at Chilpur, a suggestion was made to P.W.2. He stated that A.6 was residing with her family at Kanchanapally Village. Suggestion was put to this witness also that they intended to give their second daughter in marriage to A.1 and that the same was turned out by A.1. He admitted that both the female children of A.1 and the deceased are living with the accused. A suggestion was put to him to the effect that the complaint was drafted by one Mr. Vijender, driver of the Investigating Officer and the deceased was suffering from appendicitis.
P.W.3 is a distant relation of P.W.2. Though this witness also stated in the chief examination that the accused used to demand additional dowry, he failed to furnish the details thereof. From this witness, it was elicited that the wife of A.5, by name, Radhika, is the daughter of his brother and the deceased and Radhika used to visit their parents house together. He admitted that the deceased was being looked after well by the accused and Radhika was given in marriage to A.5.
P.W.4 is a coolie, who has been engaged by A.1 to A.3 for plucking cotton in the field. A.1 and the deceased were also said to be in the field on the same work. Her chief examination reads as under:
I know the deceased Rajitha. I know all the accused. A.1 is husband, A.2 to A.6 are in-laws of the deceased. On the day of incident the deceased engaged me and other coolies (L.Ws.7 and 8) to work in their cotton field. The deceased also along with us fetching the cotton till the afternoon. In the lunch hour while we were having meals, the deceased went to her house to feed her milk sucking baby. After meals ourselves and A.1 while collecting the cotton, the deceased returned to the fields and started to collect the cotton. After little time she fell down on the ground. Then we rushed to her and we also smelt the pesticide and also observed coming foam from the mouth of the deceased. Then A.1 and ourselves shifted the deceased to MGM Hospital. I accompanied the deceased to the Hospital. Within soon after she was sifted to MGM Hospital she was died. The police recorded my statement.
P.W.6 is a resident in the neighbourhood of the house of the accused. Her chief examination reads as under:
I know the deceased as well as accused, they are my neighbours. On the day of incident while I came to my house for lunch, at the same time the deceased also came to her house from fields to feed the milk sucking baby and while feeding she was also having meals in varandah. Then I saw, at that time the elder daughter of the deceased was playing at mother-in-law of the deceased. On the same day at about 5.00 P.M. I came to know that the deceased consumed pesticide. The police recorded my statement.
No request was made by the prosecution, to declare these witnesses as hostile. P.W.5 is a photographer and P.Ws.7 and 8 are the panchas for the scene of offence and inquest respectively. P.W.9 is a distant relation of the deceased. He is said to have participated in the panchayat at one point of time and had admonished all the accused. In the cross examination, he admitted that he is an active member of CPM party and that he did not state before the police that himself and his father have settled the marriage of the deceased. Several contradictions were elicited from him. He admitted that at the time of cremation, all the accused were present and nothing untoward has taken place. P.W.10, who also spoke in the same lines as to P.W.9, admitted that he is a member of MPTC of the village of P.Ws.1 and 2 and that he used to maintain letter heads. He feigned ignorance about the age of the daughters of the deceased and the dates of panchayats in which he said to have participated. Rest of the witnesses are employees of Revenue, Medical and Health and Police Departments.
The trial Court itself found that the charge referable to Section 302 I.P.C is not proved against the accused. However, by believing the version of P.Ws.1 and 2 and some other witnesses that there was a demand for dowry, the conviction on two counts, namely, Section 498-A and 304-B I.P.C was handed out to the accused.
Two aspects become relevant here. The first is whether the prosecution was able to prove the existence of the demand for dowry and the second is whether the death of the deceased has anything to do with the said demand.
Though P.Ws.1 and 2 stated that they gave Rs.2,00,000/- at the time of marriage, it was not at all substantiated by examining any independent witnesses. Similarly, their plea that the demand for dowry was made after the birth of the second female child to A.1 and the deceased; was not at all established to the satisfaction of the Court. Both of them stated that five or six panchayats were held and some witnesses such as P.Ws.3, 9 and 10 were examined. All of them have uniformly stated that they cannot furnish the dates of panchayats or the details thereof.
One important aspect is that, from P.W.3 it was elicited that his brothers daughter by name Radhika was married to A.5 and the deceased and Radhika used to visit the place of their parents, namely, Ippagudem together. Similar suggestion was made to P.W.1, the mother of the deceased. The fact that P.W.1 was not speaking truth is evident from the following statement made by her in the cross examination.
I do not know whether Radhika sitting in court hall was given in marriage to A.5 belongs to my village and daughter of P.W.2 the accused brother. I do not know the native place of Radhika and her father. It is true Radhika and her father belongs to our village.
The evidence of P.W.2 in this regard reads as under: Radhika who is sitting in court is daughter by relation (agnate). It is not true to suggest that as the deceased was being looked well by the accused, my brother Komuraiah also gave his daughter in marriage in the family of accused, and the deceased and Radhika were used to visit our village together. My house and the house of Komuraiah are situated in a distance of half km.
P.W.3, brother of P.W.2, admitted that Radhika the daughter of his brother by name Komuraiah was given in marriage to A.5. P.W.1 has gone to the extent of feigning ignorance about the marriage of daughter of her brother-in-law, with A.5.
None of the witnesses were able to furnish the dates or other particulars on which the dowry is said to have been demanded by A.1 or rest of his family members. Had such an event existed, Radhika would have been the first complainant or that she would have faced similar treatment with her husband-A.5 and other family members. That there did not exist any ill will between the accused and the deceased, is evident from the fact that it is the accused who shifted the deceased to the hospital and on her death, cremated her in their village and looked after both the children of the deceased afterwards. We are of the view that even if what is stated by the P.Ws.1 and 2 is true, it may, at the most, make out a case under Section 498-A I.P.C. Even this would be possible with slight deviation from the settled principles of evidence.
Coming to the second aspect, there is hardly anything to demonstrate that the death of the deceased, which admittedly is a suicidal one, was on account of demand of dowry. The life of the deceased on that particular day was as usual. She has come to the field for plucking cotton along with her husband and agricultural labourers. Since her second daughter was tender aged, she went home and fed the child with milk during lunchtime. This was spoken to by P.W.4, one of the labourers. P.W.6, the neighbour in the village, has spoken to about her coming to the house and her evidence was reproduced in the preceding paragraphs. Not even a semblance of altercation was taken place and that the elder daughter of the deceased was playing with A.2. Nobody noticed as to when the deceased consumed pesticide and it is only when she went back to the field and fell down during the course of plucking the cotton, that A.1 and others including P.W.4 noticed it. Immediately, she was shifted to a Super Specialty Hospital at Warangal, where she was declared dead.
It is too difficult to connect the death of the deceased to any demand of dowry. The burden to prove their innocence would have fallen upon the accused, if only the prosecution was able to discharge its initial burden to suggest that the death is referable to demand of dowry or additional dowry. The recklessness of the allegation is evident from the fact that though A.6 was living with her husband at different place, she was shown in the list of accused. A.5 was married to a girl from the place from which the deceased hailed, and one cannot understand as to how that person would be concerned about the matrimonial life of his elder brother A.1. So is the case with A.4. That A.2 and A.3 were cordial enough with the deceased, is evident from the deposition of P.W.6. A.2 was so affectionate that the first daughter of the deceased was playing with her and she was looking after the second daughter even when the deceased and A.1 were in the field for work. This is a typical case where Section 304-B I.P.C was put to misuse without verifying the cause of death of the deceased.
Therefore, we are of the view that the conviction and sentence against the appellants for the offences punishable under Section 304-B I.P.C. and Section 4 of the Act cannot be sustained in law.
In the result, the Criminal Appeal is partly allowed, setting aside the conviction and sentence ordered against the appellants- A1 to A6 in S.C.No.184 of 2012 on the file of the V Additional Sessions Judge ((II F.T.C) Warangal, for the offences punishable under Section 304-B I.P.C. and Section 4 of the Dowry and Prohibition Act. The conviction ordered by the trial Court against the appellants-A1 to A6 for the offence punishable under Section 498-A I.P.C. is sustained. However, the sentence is reduced to be the one of Rigorous Imprisonment for one year and fine of Rs.5,000/- each, in default, to undergo Simple Imprisonment for three months.
________________________ L.NARASIMHA REDDY, J ___________________ M.S.K.JAISWAL,J Dt: 17.04.2014