Andhra HC (Pre-Telangana)
Shankurigari Venkatesh And Others vs State Of Andhra Pradesh, Rep., By Its ... on 24 March, 2014
Bench: L.Narasimha Reddy, M. S. K.Jaiswal
THE HONBLE SRI JUSTICE L.NARASIMHA REDDY AND THE HONBLE SRI JUSTICE M. S. K.JAISWAL CRIMINAL APPEAL No.795 of 2009 24-03-2014 Shankurigari Venkatesh and others..Appellants State of Andhra Pradesh, rep., by its Public Prosecutor, High Court of A.P., Hyderabad .. Respondent Counsel for the Appellants : Smt. A. Gayatri Reddy Counsel for Respondent : Public Prosecutor <Gist : >Head Note : ?Citations: THE HONBLE SRI JUSTICE L. NARASIMHA REDDY AND THE HONBLE SRI JUSTICE M.S.K.JAISWAL CRIMINAL APPEAL No.795 of 2009 JUDGMENT:
(per the Honble Sri Justice L.Narasimha Reddy) Section 498-A or for that matter Section 304-B I.P.C. were introduced by the Parliament to curb the harassment to women after their marriage and even the principles of the Indian Evidence Act, 1872, were changed to ensure that the perpetrators of crimes against innocent women are not left scot-free. However, as in the case of many such measures taken by the State, the instances of misuse thereof are not lacking. The case on hand is the one such.
A1 to A4 in S.C.No.305 of 2008 were tried for the offence of causing the death of Smt.Padmamma, wife of A1, on 17.03.2008 by harassing her to bring additional dowry. The marriage between A1 and the deceased Padmamma was performed about four years prior to 2008 and a female child was born. PW.1, the brother of Padmamma, filed a complaint, Ex.P1, on 18.03.2008 before P.S. Kondurg stating, inter alia, that on the evening of 17.03.2008 he received a message to the effect that his sister and niece jumped into a well to commit suicide. He attributed that, to the harassment caused by A1, his parents and brother. Ex.P1 is silent as to what was done by PW.1 soon after he received the information. The record, however, discloses that PW.1 has gone to the well in which his sister jumped together with her daughter and that the body of the baby girl alone was noticed. On the next day, he is said to have gone to the well and searched for the body and he noticed that some wires were tied around the body and ultimately it was brought to the surface of water.
Crime No.25 of 2008 was registered against A1 to A4 for the offences punishable under Sections 302 r/w.34, 498-A r/w.34 I.P.C., and Section 3 and 4 of the Dowry Prohibition Act (for short, the D.P. Act). Along with the bodies of Padmamma and her daughter, the body of another male person, by name, Kashaiah was recovered from the well. The scene of offence panchanama was drawn and inquest and post mortem of bodies, were conducted. The death of the male person i.e., Kashaiah was not made the subject matter of these proceedings. After completion of the investigation, the prosecution filed a charge sheet. The case was committed to the Court of IV Additional Sessions Judge (Fast Track Court), Mahabubnagar and it was numbered as S.C.No.305 of 2008.
The trial Court framed as many as five charges and the accused pleaded not guilty. To prove its case, the prosecution examined PWs.1 to 16 and Exs.P1 to P15 were filed. On behalf of the defence, no oral evidence was adduced, but Exs.D1 and D2 were filed. The material objects were marked.
Through judgment dated 28.04.2009, the trial Court acquitted the accused of the charge framed under Section 3 of the D.P. Act, Section 302 r/w.34 and 306 I.P.C. However, it convicted them of the offences punishable under Section 4 of the D.P. Act and Section 498-A r/w. 34 I.P.C. The fourth charge referable to Section 302 r/w.34 I.P.C. was alerted to be the one under Section 304-B I.P.C. For the offence punishable under Section 304-B I.P.C., sentence of imprisonment for life was imposed and for the offence punishable under Section 4 of the D.P. Act, punishment of rigorous imprisonment for six month and fine of Rs.5,000/- each was imposed. As regards the offence punishable under Section 498-A r/w.34 I.P.C., punishment of R.I. for three months and fine of Rs.500/-, in default to undergo S.I. for one month, were imposed. A4 was found to be juvenile and accordingly he was sent to borstol school. He is said to have been released from the school. This appeal is preferred by A1 to A3.
Smt. A. Gayatri Reddy, learned counsel for the appellants, submits that in Ex.P1 itself, PW.1 stated that his sister jumped into the well to commit suicide and in the cross examination of PW.1, it was elicited from him that along with the deceased another person by name Kashaiah also committed suicide in the same well. She submits that the evidence of PW.5 is clearly indicative of the fact that the deceased was having illicit intimacy with Kashaiah and both of them were admonished on several occasions, before the incident. Learned counsel submits that the prosecution has deliberately omitted the record pertaining to the paramour of the deceased i.e., Kashaiah and painted a picture as though the suicide of the deceased was on account of the harassment for dowry. Learned counsel further submits that PW.2, the mother of the deceased, clearly admitted that their family was held responsible for the death of her daughter-in-law in their house and that they have also been accused of committing other offences. Learned counsel further submits that the official witnesses, such as PW.12 and the investigating officer, admitted that apart from the deceased and her daughter, another male person also committed suicide and in that view of the matter, no ingredients of Section 304-B I.P.C. or other provisions cited by the prosecution are present in the instant case.
Learned Public Prosecutor, on the other hand, submits that the suicide of the deceased was proved to be on account of the harassment caused by A1 to A4 to the deceased and that the trial Court has arrived at just and proper conclusion. She contends that the evidence of PW.5 was in total deviation of what he had stated before the police and accordingly the witness was declared as hostile. Learned Public Prosecutor further submits that the other male person whose body was found in the same well has nothing to do with the family of the accused and the deceased and accordingly the matter pertaining to him was dealt with separately.
There is no dispute that the deceased Padmamma was married to A1 and out of their marriage, a girl child was born. The record does not disclose that any complaints were submitted or cases were registered against the accused alleging that they have harassed the deceased Padmamma at any time before the incident. The police became aware of the incident only when PW.1, the brother of the deceased, submitted the complaint at 12.30 noon on 18.03.2008. He has, no doubt, mentioned in detail, the alleged acts of harassment against his sister. However, he stated that unable to bear the harassment, his sister was vexed with her life and at 9.00 A.M., on 17.03.2008, she left the house together with her daughter of two years; and jumped into the agriculture well of Boddugari Chennaiah situated in Mustipally Village, and committed suicide. He did not state as to who gave that information to him, and when. It is only in the chief examination that PW.1 stated that he received the intimation about 5.00 P.M. on 17.03.2008 and he went and saw the dead body and since it was becoming dark, he went home and on the next day he submitted a complaint. He further stated that the dead body of his sister was not floating in the well and after seeing the dead body of his niece, he searched for the dead body of his sister by getting down into the well and he found that some wires were tied around the body and that the neck portion of the body appeared black. He did not mention about the presence of any other dead body in the well.
It was only in the cross examination that PW.1 stated that he noticed three dead bodies in the well, i.e., those of his sister, his niece and one Mr. Kashaiah. A suggestion was made to him in the cross examination that his sister was having illicit intimacy with one Kashaiah since one year and A1 and his parents informed him about it several times. It was also suggested that panchayats were held in this context, in Mustipally Village and the elders chastised and admonished the deceased and Kashaiah and it is in this context, that Kashaiah and Padmamma jumped into the well together with the minor child. PW.1, no doubt, denied the suggestions, but the recovery of the body of Kashaiah along with the body of the deceased speaks volumes about the matter. Extensive suggestions were made in relation to the allegations made by him about the demand of dowry.
PW.2 is the mother of the deceased. She too admitted that three bodies were recovered from the well and suggestions were also made about the illicit intimacy of the deceased Padmamma with Kashaiah and holding of panchayats in relation thereto. PW.3, the maternal uncle of the deceased, did not support of the case of the prosecution and was declared as hostile and same is the case with PW.4, who is said to have gone to the well, on hearing the hues. The evidence of PW.5 gains much importance. In the chief examination, he stated:
Padmamma had illegal intimacy with Kashaiah for which we chastised her two or three times. Therefore, she along with her child and Kashaiah jumped into the well and died. I do not know whether any panchayat was held in the village of parents of Padmamma or not. The relationship between deceased and accused was cordial, when Padmamma was alive.
Naturally this witness was declared hostile. However, no suggestion whatever was made on behalf of the prosecution to contradict what he had stated in the chief examination. PWs.6 and 7 are said to be the panchayatdars and they too did not support the case of the prosecution. PW.8 is the younger sister of the deceased. Her evidence is mostly about the alleged demand of dowry. However, once the elderly members of the family i.e., the mother and brother have spoken about it, there is not much, that PW.8 can add. Suggestions about illicit intimacy of the deceased with Kashaiah were made to this witness also. PW.12 is the panch witness at the inquest. He too stated that when the bodies of the deceased Padmamma and her daughter were recovered, there was a dead body of another person and it was also recovered by the police. The other part of the evidence stated by him is that he saw some wires by the side of the dead bodies and he came to know that the wires came out along with the dead bodies. PW.15, the investigating officer, admitted that the reasons for delay in submission of the complaint were not mentioned. He further admitted that he did not make a note in the inquest about the finding of three dead bodies at the scene and that he has conducted inquest over the third dead body also and sent for post mortem examination. This witness, however, stated that no wires were tide around the dead body of Padmamma.
From the conspectus of the evidence on record what becomes clear is that it was not even alleged that on 17.03.2008 any of the accused indulged in verbal duel or physical quarrels with the deceased Padmamma. In Ex.P1 itself, PW.1 has simply stated that vexed with her life, Padmamma proceeded to the well together with the child and jumped therein. Though he made an attempt to state that the cause of vexation is the demand of dowry by the accused, he was not able to substantiate the same. Neither any independent witness has supported his allegation, nor did he submit any complaint at any earlier point of time, in relation thereto.
The fact that the death of the deceased occurred within seven years from the date of marriage and that her parents made an allegation about the demand of dowry is sufficient to invoke or attract Section 304-B I.P.C. In the instant case, the prosecution itself was halfhearted in making mention of Section 304-B. Even the trial Court framed a charge under that provision, as an alternative one. If the ingredients are proved, the conviction ordered by the trial Court can certainly be countenanced.
That the death of a woman, i.e. the deceased, occurred within seven years of her marriage, is beyond any pale of doubt. What remains to be seen is, the cause of death. Since the person accused of committing the offence under Section 304-B I.P.C. is placed in a relatively disadvantageous position, when compared to the persons accused of other offences, strict scrutiny of the basic facts that invite the accusation under Section 304-B I.P.C. is warranted. It is only after the prosecution discharges its initial burden of proving the ingredients of Section 304-B I.P.C., that the burden to prove his innocence would shift to the accused. It has already been mentioned that though certain allegations of demand of dowry were made, PWs.1 and 2 did not substantiate the same either by referring to the submission of any complaints, or by examining any independent witnesses. However, if there are other circumstances to suggest that the death, albeit suicidal, of the deceased was prompted on account of demand of dowry, the prosecution, of the accused, for committing offence under Section 304- B I.P.C. can certainly be undertaken. In this connection, the alternatives, if any suggested by the defence are also required to be taken into account. If such alternatives derive any support from the evidence on record, the same deserve to be examined carefully.
The complaint submitted by PW.1 was not truthful, in the sense that though by the time he submitted the complaint he was aware of the fact that as many as three dead bodies were recovered from the well, he did not mention about the third one. Even in chief examination, he was silent about it. It was only in the cross examination that he admitted that the dead body of the third person was also noticed and he in fact identified the body as that of Kashaiah. The defence made a specific suggestion to PWs.1 and 2 to the effect that the deceased Padmamma was having illicit intimacy with Kashaiah, several panchayats were held in that context and both of them were admonished by the elders. PWs.1 and 2, no doubt, have denied those suggestions. However, if we take into account the evidence of PW.5, the independent witness, it becomes clear that there existed illicit intimacy between those persons. Otherwise, there is no reason why, they should commit suicide together. If at all anything, it indicates the level or depth of their affinity towards each other. PW.5 went a step further and stated that the relationship between Padmamma and A1 was cordial.
PW.1 made a well thought over and meditated effort to implicate A1 to A4, to cover up the affair of his sister, taking advantage of her unfortunate death. This is evident from the fact that though he became aware of the incident in the afternoon of 17.03.2008, he submitted a complaint only in the afternoon of the next day. He did not mention about the death of Kashaiah in the same well. The record further discloses that the First Information Report reached the concerned Court at 10.30 P.M., on 18.03.2008. It means that there was nearly 36 hours delay in submission of the complaint. PW.1 did not mention the source of information also. Added to the totally distorted version of PW.1, the commissions and omissions on the part of the prosecution weaken the case presented by them. When three dead bodies were found in the well, it is not known as to how the case pertaining to third person was dealt with separately and why the post mortem report and other documents were not made part of the record of the present case, at least when the allegation as to the illicit intimacy between Padmamma and Kashaiah was coming from mere circles.
Extensive suggestions were made to PW.2 to the effect that herself, her son, PW.1, and other family members were alleged to have committed the murder of her daughter-in-law. PW.1 struggled to explain the same by stating that her daughter-in-law died soon after delivering the child. Suggestions were also made to PW.1 about the illegal and criminal acts said to have been resorted to, by him.
In his statement recorded under Section 313 Cr.P.C., A1 stated that his wife Padmamma was having illicit intimacy with Kashaiah and though panchayats were held and Kashaiah was admonished, they did not stop their relationship and he does not know as to how the death of his wife occurred. This certainly gains support from the evidence on record. It is important to note that the investigation was undertaken by an officer of the rank of Sub-Divisional Police Officer, as required under Section 304-B I.P.C. and the investigation undertaken by him is totally unsatisfactory. But for the indifference exhibited by him, the accused would not have been subjected to the hardship, which they have undergone by serving sentence at far. We are, therefore, of the view that the prosecution failed to discharge its initial burden in relation to the accusation under Section 304-B I.P.C., and the occasion to shift the burden to the accused, did not arise.
In the result, the Criminal Appeal is allowed. The conviction and sentence ordered in S.C.No.305 of 2008 on the file of the IV Additional District and Sessions Judge (Fast Track Court), Mahabubnagar, dated 28.04.2009, against the appellants A1 to A4, are set aside. The appellants A1 to A3 shall be set at liberty forthwith, unless their detention is needed in any other case. The fine amount, if any, paid by the appellants A1 to A4 shall be refunded to them.
The miscellaneous petition filed in this appeal shall also stand disposed of.
____________________ L. NARASIMHA REDDY, J _______________ M.S.K.JAISWAL, J Date:24.03.2014