Andhra Pradesh High Court - Amravati
Mamidi Mariadasu, vs The State Of Ap Rep By Its Pp Hyd., on 2 January, 2024
HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
****
CRIMINAL APPEAL No.1225 OF 2009
Between:
Mamidi Mariadasu, S/o Nanaiah, aged about
27 years, Coolie, R/o Lachannagudipudi Village,
Tadikonda Mandal, Guntur District. ... Appellant/Accused.
Versus
The State of Andhra Pradesh, rep. by Public Prosecutor,
High Court of A.P. ... Respondent/Complainant.
DATE OF JUDGMENT PRONOUNCED : 02.01.2024
SUBMITTED FOR APPROVAL:
HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
1. Whether Reporters of Local Newspapers
may be allowed to see the judgment? Yes/No
2. Whether the copy of judgment may be
marked to Law Reporters/Journals? Yes/No
3. Whether His Lordship wish to see the
Fair copy of the judgment? Yes/No
______________________
A.V.RAVINDRA BABU, J
2
* HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
+ CRIMINAL APPEAL No.1225 OF 2009
% 02.01.2024
# Between:
Mamidi Mariadasu, S/o Nanaiah, aged about
27 years, Coolie, R/o Lachannagudipudi Village,
Tadikonda Mandal, Guntur District. ... Appellant/Accused.
Versus
The State of Andhra Pradesh, rep. by Public Prosecutor,
High Court of A.P. ... Respondent/Complainant.
! Counsel for the Appellant:
Sri Shaik Meeravalli, learned counsel,
representing Sri Md. Saleem.
^ Counsel for the Respondent : Public Prosecutor
< Gist:
> Head Note:
? Cases referred:
(2008) 12 Supreme Court Cases
(2004) 4 SCC 470
This Court made the following:
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HON'BLE SRI JUSTICE A.V. RAVINDRA BABU
CRIMINAL APPEAL NO.1225 OF 2009
JUDGMENT:-
Challenge in this Criminal Appeal is to the judgment, dated 12.10.2009 in Sessions Case No.628 of 2008, on the file of I Additional District & Sessions Judge, Guntur ("Additional Sessions Judge" for short), whereunder the leaned Additional Sessions Judge, found the accused guilty of the charge under Sections 304-B as well as 498-A of the Indian Penal Code ("IPC" 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 7 years for the charge under Section 304-B of IPC and further sentenced him to undergo rigorous imprisonment for 2 years and to pay a fine of Rs.100/- in default to suffer simple imprisonment for 15 days for the charge under Section 498-A of IPC and that both the sentences shall run concurrently.
2) The parties to this Criminal Appeal will hereinafter be referred to as described before the learned Additional Sessions Judge for the sake of convenience.
3) The Sessions Case No.628 of 2008 arose out of a committal order in PRC.No.77 of 2008, on the file of Additional 4 Junior Civil Judge, Mangalagiri, pertaining to Crime No.12 of 2007 of Tadikonda police station.
4) The case of the prosecution, in brief, according to the contents of charge sheet filed by the State, represented by the Sub-Divisional Police Officer, Guntur Rural Police Station, is as follows:
(i) One Mamidi Mariamma (hereinafter will be called as "deceased") is the wife of the accused. Their marriage took place about five years back. The accused and the deceased lived happily for about two years and they have begotten two children. Thereafter the accused got addicted to alcohol and started harassing the deceased by subjecting her to both physically and mentally for additional dowry. The deceased informed her parents, P.W.1 and P.W.9, who on the first occasion gave a ceiling fan and cash of Rs.5,000/- to the accused. The accused was not satisfied and continued harassing the deceased on one pretext or the other. About three months prior to the date of offence, the deceased and the accused came to the house of P.W.1 and P.W.9 at Nidumukkala Village. As per the demand of the accused, P.W.1 and P.W.9 purchased a she-
buffalo worth about Rs.9,500/- and gave it to the accused. Still the accused continued to harass the deceased in spite of his parents‟ reprimanding him.
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(ii) On 01.12.2007 at about 7-00 p.m., a quarrel took place between the deceased and the accused as the deceased intended to present clothes to her sister which was refused by the accused on the ground that he had no money. Then the deceased questioned the accused how he has got money for consuming alcohol. Then the accused beat the deceased in the presence of his mother and P.W.2 who reprimanded the accused, and sent him away. The mother of the accused along with the son of the accused left the house for prayers leaving the deceased alone in the house. The deceased having got vexed with the attitude of her husband, committed suicide by consuming poison.
(iii) On a report given by P.W.1 on 02.02.2007, P.W.7 registered the crime and P.W.8 took up the investigation. Inquest was held over the body of the deceased by P.W.5, the Mandal Revenue Officer and other panch witnesses. The body of the deceased was sent for postmortem examination. The doctor, who conducted autopsy, opined that the deceased appears to have been died due to Organo Phosphorous poison. During the course of investigation, P.W.8 visited the scene of offence, observed the scene, seized the material objects available at the scene of offence, prepared a rough sketch and recorded the statements of the witnesses. The material objects were sent to 6 the RFSL for analysis. During the course of investigation, the accused was arrested on 06.02.2007 and sent for remand. After completion of investigation, a charge sheet was filed before the Additional Junior Civil Judge, Mangalagiri.
5) The learned Additional Junior Civil Judge, Mangalagiri, took cognizance of the case under Sections 304-B and 498-A of IPC. After appearance of the accused and on compliance of the provisions contemplated under Section 207 of Cr.P.C., the learned Additional Junior Civil Judge, committed the case to the Court of Sessions, thereupon it was numbered the same as Sessions Case and made over to the Court of learned I Additional District & Sessions Judge, Guntur, for disposal, in accordance with law.
6) On appearance of the accused before the learned Additional Sessions Judge, charge under Section 304-B as well as 498-A of IPC were framed and read and explained to the accused in Telugu for which he pleaded not guilty and claimed to be tried.
7) In order to establish the guilt against the accused, on behalf of the prosecution, P.W.1 to P.W.12 were examined and Ex.P.1 to P.9 were marked. After closure of the evidence of prosecution, accused was examined under Section 313 of Cr.P.C. with reference to the incriminating circumstances 7 appearing in the evidence let in by the prosecution, for which he denied the same and stated that he has no 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 charge under Sections 304-B as well as 498-A of IPC and after questioning him about the quantum of sentence, sentenced him as above. Felt aggrieved of the same, the unsuccessful accused filed the present appeal.
9) Now, in deciding the present criminal appeal, the points for determination are as follows:
(1) Whether the prosecution proved that on
01.02.2007 accused caused the death of deceased
by subjecting her to cruelty both mentally and physically with a demand to bring money as additional dowry?
(2) Whether the prosecution proved the charge under Sections 304-B as well as 498-A of IPC beyond reasonable doubt?
(3) Whether the judgment, dated 12.10.2009 of the learned Additional Sessions Judge is sustainable under law and facts and whether there are any grounds to interfere with the same?
8Point Nos.1 to 3:
10) P.W.1 was no other than the defacto-complainant being the mother of the deceased. According to her, her third daughter was Mariamma, who was given in marriage to the accused about seven years ago prior to her evidence. Her daughter died about more than two years ago. The deceased and accused lived together happily for few years. Later, the accused started harassing the deceased demanding to get more dowry. They were blessed with one son and daughter. The accused was demanding more money and she paid. She was giving an amount of Rs.2,000/- whenever accused was demanding. She paid an amount of Rs.10,000/- on one occasion and further an amount of Rs.10,000/- to purchase a she-buffalo at another occasion. Her daughter was beaten and she was made consumption of pesticide resulting her death. In the month of February during midnight her daughter consumed pesticide. Then she along with neighbours went to the house of accused and found the dead body of her deceased daughter.
Neither the accused nor any of his inmates were found when they reached there. They went to the police station and gave a report. Ex.P.1 is the report. She is an illiterate. They found injury on the head of the deceased. There was one injury on the back side of the head. Though she observed the other injuries, 9 the Sub-Inspector of Police objected her. The deceased died due to harassment of the accused. The Mandal Revenue Officer and police examined her.
11) P.W.9 was father of deceased, who spoke about the marriage between the deceased and accused about five years ago prior to the incident and that they lived together happily for some time. Thereafter, the accused started to harass his daughter to get more money. He paid Rs.5,000/- at one occasion and Rs.10,000/- at another occasion. Accused informed to the Pastor of their village that their daughter died. On receipt of the information, he went to the house of accused and found the deceased at the house of the accused with an injury on her head. He was present at the time of inquest held over the dead body of the deceased.
12) P.W.10 was brother of the deceased and he supported the case of the prosecution. According to him, on receiving a phone call from the Pastor they went to the house of accused and found the dead body of the deceased. By then none were present. Accused was given cash of Rs.16,000/-, gold studs and silver anklets. They gave Rs.5,000/- at one occasion and Rs.9,500/- at another occasion to purchase a she-buffalo on demand made by the accused. Accused beat the deceased and 10 murdered her for money. He was present at the time of inquest over the dead body of the deceased.
13) P.W.11 was a hearsay witness and according to him, the deceased died about three years back in connection with the demand for additional dowry.
14) P.W.12, cousin of the deceased, was such that the deceased was married to the accused five years prior to the date of her death. By the time they went to the house of accused, they were told that the deceased was done to death. The deceased and her husband were cordial. Whenever they asked P.W.1 was giving some money.
15) Apart from the evidence of P.W.1, P.W.9 to P.W.12, the kith and kin of the deceased, prosecution examined P.W.2, who supported to a certain extent about the case of the prosecution. The evidence of P.W.2 is that she is a coolie worker and she knows the accused, who is their villager. She knows the deceased-Mariamma, who died three years back by consuming pesticide. She does not know why the deceased consumed pesticide. The deceased and accused used to live cordially. She did not witness the deceased consuming pesticide. Neither the accused nor his parents were present in the house. The prosecution got declared her as hostile and during cross 11 examination she denied that she stated before police as in Ex.P.2.
16) P.W.3 was the inquest panchayatdar, who supported the case of the prosecution. According to him, originally he was a Panchayat Secretary to Ravela village and in February, 2007, he was in-charge Panchayat Secretary of Lachannagudipudi. He was present at the time of inquest over the dead body of the deceased which was held during mid-day. Surpanch and Ex- Surpanch were also present by then. They were of the opinion that the deceased committed suicide by consuming pesticide due to family disputes in connection with additional amounts. Ex.P.3 is Inquest panchanama prepared by the police.
17) P.W.4, mediator for observation of the scene of offence, deposed that at request of police he was present at the time of observation of the scene of offence on 02.02.2007. He had seen the dead body of the deceased. Ex.P.4 is the scene of observation report. He signed on it.
18) Turing to the evidence of P.W.5, the Mandal Executive Magistrate, he testified that at the request of Station House Officer, Tadikonda, he conducted inquest over the dead body of the deceased on 02.02.2007 at 11-00 a.m. He could complete it by 1-00 p.m. They found some injuries on the head and left side above ear of the dead body. He examined P.W.1, 12 P.W.2, L.W.2-Akkaiah, L.W.3-Jojibabu, L.W.4-Vijayaraju and L.W.5-Gunti Vijaya Raju. They were of the view about the injuries found on the dead body of the deceased and opined that she died due to harassment. After inquest, the dead body was sent for postmortem examination.
19) P.W.6 was Medical Officer, who conducted autopsy over the dead body of the deceased. According to him, on 02.02.2007 he conducted postmortem examination over the dead body of Mamidi Mariamma at about 4-30 p.m. and found a cut injury present on left temporial region of skull size 1 x 2 cms., size with bone deep. He further spoke of the internal findings and his evidence with regard to the opinion is that the cause of death is due to consumption of Organo Phosphorous insecticide poison. Ex.P.5 is the postmortem report and Ex.P.6 is the RFSL report.
20) P.W.7 was Sub-Inspector of Police, who registered FIR, basing on Ex.P.1 and he spoke of the registration of FIR on receipt of report from P.W.1 on 02.02.2007 at 6-00 a.m. and issued Ex.P.7 original FIR. He informed to SDPO, Guntur Rural, about the registration of FIR. As per the instructions of SDPO, he went to the scene of offence and made arrangements for guarding the scene of offence. SDPO took up investigation in this case.
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21) P.W.8 was SDPO, who was the investigating officer. According to him, on 02.02.2007 at 6-50 a.m., he received information from the Sub-Inspector of Police, Tadikonda Police Station, about the registration of subject matter of FIR. He instructed the Sub-Inspector of Police to give requisition to Mandal Revenue Officer to conduct inquest. He also instructed the Sub-Inspector of Police to proceed to the scene of offence and to take measures to guard the same. At 8-30 p.m., he visited Lachannagaudipadu village and met P.W.7 at the scene of offence. He has gone through the FIR handed over by P.W.7. He secured the presence of P.W.3 and T. Usha Rani, Surpanch of the village and inspected the scene of offence and prepared Ex.P.4-observation report. After inquest was conducted by the Mandal Executive Magistrate, he examined P.W.1, Akkaiah, Jogipababu, Anjaneyulu, Vijaybabu and Sudersanam Seetha. He prepared rough sketch which is Ex.P.7. On 03.02.2007 he received information from known source about an empty poison tin used by the deceased which was lying in bushes near to the house of Tumannapalli Prabhudasu. He went there and found an empty tin containing a label Suvidha, a Bio fertilizer for weed killing. He seized it under the cover of Ex.P.9 seizure mahazar. On 06.02.2007 he arrested the accused at 2-00 p.m. near Tadikonda cross roads and sent him to the remand. He visited 14 Lachannagudipadu Village and secured Ghantasala Koteswara Rao and Sudarshanam Nageswara Rao and examined them. On 20.02.2007 he sent a letter of advice to the FSL along with visera preserved by the medical officer. After receipt of FSL report and the final opinion of the Doctor, he filed charge sheet.
22) Sri Shaik Meeravalli, learned counsel, representing Sri Md. Saleem, learned counsel appearing for the appellant, would contend that P.W.1, P.W.9 to P.W.12 were the kith and kin of the deceased. Their evidence was interested in nature. P.W.2 did not support the case of the prosecution and she turned hostile to the case of the prosecution. As the deceased was not interested in attending agricultural operations and having vexed with the life, in which she had to work as collie, she took extreme step of commission of suicide for which the accused cannot held liable. Though FIR speaks of alleged role of in-laws, investigating officer deleted their names during investigation. Ex.P.1 was with falsity. The learned Additional Sessions Judge did not appreciate the evidence in proper perspective. The prosecution did not prove the allegations of demand for additional dowry. The deceased family was not afforded to pay any amount to the accused. They had no financial capacity to meet with any demand of dowry, as such, their contention that they paid the amounts does not arise. 15 There was no demand to purchase a she-buffalo and in fact the she-buffalo was purchased with the amount of the accused. By any stretch of imagination, the demand, if any, for purchasing a she-buffalo, cannot be taken as a demand for additional dowry. When there was no support to the evidence of interested witnesses from independent source, the conviction of the accused for the allegations under Sections 304-B and 498-A of IPC is not at all sustainable. With the above submissions, he would contend that the appeal is liable to be allowed.
23) Sri N. Sravan Kumar, learned counsel, representing the learned Public Prosecutor, would contend that it is a case where the death was occurred within seven years from the date of marriage in the house of in-laws other than in normal circumstances. There was presence of an injury on the neck portion of the deceased. The evidence would prove that prior to the death, the deceased was subjected to physical torture, as such, she committed suicide. There was consistent evidence with regard to the demand made by the accused for additional dowry amounts which is by virtue of evidence of P.W.1, P.W.9 to P.W.12. In support of his contention, the learned counsel, representing the learned Public Prosecutor, would rely upon a decision in State of Rajasthan vs. Jaggu Ram1. The learned 1 (2008) 12 Supreme Court Cases 51 16 Additional Sessions Judge rightly appreciated the evidence on record, found the accused guilty of the charges, as such, there are no grounds to interfere with the judgment of conviction. With the above submissions, he would argue that the appeal is liable to be dismissed.
24) The charges are under Sections 498-A and 304-B of IPC.
Section 498-A of IPC runs as follows:
[498A. Husband or relative of husband of a woman subjecting her to cruelty.--
Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.--For the purpose of this section, "cruelty" means.--
(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.] Section 304-B of IPC runs as follows:
1[304B. Dowry death. - (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or 17 any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
Explanation: For the purposes of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.]
25) Apart from the above, there is a presumption under Section 113-B of the Indian Evidence Act, 1872 regarding dowry death which runs as follows:
Section 113-B in The Indian Evidence Act, 1872 "113-B: 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)."
26) For better appreciation, it is pertinent to refer here firstly, the substance of Ex.P.1 lodged by P.W.1. As seen from 18 Ex.P.1, the allegations in substance were that the marriage of the accused and deceased took place about five years ago.
Since three years, her son-in-law was harassing her daughter for getting more dowry. Her daughter told the facts to her. As they were not in a position to see the harassment physically and mentally, for the first time, she gave a ceiling fan and cash of Rs.5,000/- during the month of August. Three months ago, her daughter came to the house and told to her that her husband beaten her to get money. She sent back her daughter as she had no money. One week or ten days later both wife and husband came together and asked her to purchase a she-buffalo and she gave it to them an amount of Rs.9,500/- and they purchased a she-buffalo. Ten days before Christmas also accused beat her daughter. Having coming to know about the same, they took her daughter to their house. They sent her on the first day of January. In one occasion, her daughter came to their house. There was a big injury on the head of her daughter. Her daughter number of times told about the harassment and cruelty towards her made by her husband. Ultimately, on one day before the report at 11-30 a.m., she came to know that her daughter is in serious condition and they went to Lachannagudipadu village and found her died. The husband and 19 in-laws of deceased were not there by then. This is the sum and substance of the report.
27) As seen from the evidence of P.W.1 as referred to above, she supported the case of the prosecution undoubtedly. Her evidence has support from the contents of Ex.P.1.
28) There is no dispute during cross examination of P.W.1 that the death of the deceased was occurred within seven years from the date of her marriage. This fact was not at all in dispute. Place of death of the deceased was in the in-laws house. The cause of death was due to consumption of insecticide poison. Apart from this, there was evidence of inquest panchayatdar-P.W.3 and P.W.5-the Mandal Executive Magistrate that cause of death of the deceased was due to consumption of poison and she committed suicide. There was evidence of P.W.1 to the effect that she found injury on the back side of the head of the deceased. P.W.5, the Mandal Executive Magistrate, deposed that they found some injuries on the head and left side of the above ear of the dead body. There was also evidence of P.W.6-medical officer, noting a cut injury present on left temporial region of skull size 1 x 2 cms., with bone deep. The accused did not dispute the presence of the injury, as spoken to by P.W.6. What he elicited from P.W.6 is that consumption of poison is only the reason for death. It is no doubt true that the 20 injury which was found on left temporial region of skull size 1 x 2 cms., was not the reason for her death according to P.W.6, but the presence of such injury was not at all in dispute. All these go to show that the death of the deceased was otherwise than in normal circumstances within a period of seven years from the date of marriage. The prosecution quietly satisfied the ingredients that were within seven years and that it was otherwise than in normal circumstances.
29) Now, the Court has to look into as to whether the prosecution proved the allegations of cruelty within the meaning of Section 498-A of IPC and that the deceased died on account of harassment made against her soon before her death.
30) The sum and substance of the case of the prosecution is that the deceased committed suicide on account of physical and mental harassment from the part of the accused demanding her to bring additional amounts towards dowry. Now, this Court has to look whether the evidence on record would prove such allegations. P.W.1 spoke of the so-called demands made by the accused literally in her evidence. Similarly, P.W.9-the father of the deceased, spoke of the above and there is also evidence of P.W.10 and P.W.12 to that effect. Now, it is a matter of appreciation to decide as to whether the evidence of kith and kin of the deceased in this regard is 21 believable. To decide the same, it is pertinent to look into the defence of the accused in the light of their cross examination.
31) Turning to the evidence of P.W.1 during cross examination she deposed that accused was living separately in a portion of his parents‟ house. The deceased was coming to their house twice or thrice in a year for festivals. At one occasion, the deceased came after the quarrel with the accused. Deceased came to their house on two or three occasions prior to her death due to disputes with the accused. She does not know that the deceased was in the habit of watching TV in the house of her mother-in-law. The deceased did not intimate to her that she intends to purchase gold for her ornaments. The accused was attending coolie works. She denied a suggestion that the deceased was interested in luxurious life and she was not attending agricultural works. She paid all the amounts to the accused at her house. She was not informed by the deceased that she insisted the accused for money to present a saree to her elder sister. The deceased elder sister presented a saree to her. The deceased did not present a saree to her elder sister. She deposed in cross examination that as the accused was beating the deceased on her head frequently the deceased got head ache and she purchased glasses on examination. She denied that the deceased was not attending agricultural works. 22 The injury on the body of the deceased was found to be fresh, but it is old one. She denied that the accused was looking after the deceased and she (P.W.1) is insisting the accused to purchase luxurious articles to the deceased. She denied that she is deposing false.
32) Turning to the evidence of P.W.9, the father of the deceased, in cross examination he reiterated that accused asked for dowry and they gave it. He denied that they gave presentations as per their wish and pleasure. The accused and his parents resided under the same roof but they have separate mess. He denied that he got purchased a she-buffalo to the accused with the money of the accused. He denied that the deceased does not attend coolie works and that she committed suicide for the reasons best known to her and that he is deposing false.
33) According to P.W.10, the accused and deceased came together to purchase she-buffalo. He denied that she- buffalo was purchased by the money of the accused. He denied that the accused never demanded for additional dowry and he is deposing false.
34) According to P.W.12, he does not know the reason for the death of deceased.
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35) It is to be noted that the very defence of the accused is that as the deceased was not willing to do agricultural works and she was interested to lead a luxurious life, she committed suicide. As this Court already pointed out that P.W.2 to a certain extent supported the case of the prosecution, but certain extent she did not support the case of the prosecution. During cross examination by the learned defence counsel, P.W.2 categorically deposed that the deceased was attending agricultural coolie works. P.W.1 gave money to the accused and deceased for purchasing she-buffalo. The very defence of the accused that the deceased averted to attend agricultural works was falsified by virtue of the answers elicited during cross examination of P.W.2. After the prosecution got declared P.W.2 as hostile, the learned defence counsel elicited some answers from the mouth of P.W.2 which shatters and which falsifies the defence of the accused. According to the contention of the accused, the she-buffalo was purchased with the money of the accused. It is rather improbable to assume that for purchase of a she-buffalo accused need not come to the house of P.W.1 along with the deceased. The accused elicited from the mouth of P.W.2 that P.W.1 gave money to the accused and deceased for purchasing a she-buffalo. The entire evidence of the prosecution proves that on demand of accused only, P.W.1 gave money to 24 the accused and deceased to purchase a she-buffalo. The accused has no definite stand. At one hand his contention is that whatever they were given by P.W.1 were voluntarily. It is very difficult to accept such a defence of the accused. In my considered view, there were no abnormalities in the evidence of P.W.1 and P.W.9. This Court has no reason to disbelieve the evidence of P.W.1 that on demand made by the accused, she used to pay some amounts to the accused including the amount to purchase a she-buffalo.
36) Now, it is a matter of appreciation as to whether such demands proved by the prosecution would fall under the purview of dowry harassment. At this juncture, it is pertinent to look into the decision of the Hon‟ble Supreme Court in The State of Andhra Pradesh v. Raj Gopal Asawa and others2. It is a case where the learned Sessions Judge found favour with the case of the prosecution and convicted A-1 to A-3. They filed an Appeal before the High Court of Andhra Pradesh and the High Court reversed the judgment of conviction on the findings that to constitute dowry, demand should be made directly or indirectly either at the time of marriage or before the marriage or at any time after the marriage and that if there was no agreement between the parties to give or take any property or 2 (2004) 4 SCC 470 25 valuable security and after the marriage if further amounts are demanded, such demand will not fall within the meaning of dowry. While holding so, the High Court of A.P. reversed the judgment of conviction. Then, the State of Andhra Pradesh went for Appeal in Criminal Appeal No.384 of 1998 before the Hon‟ble Apex Court. The Hon‟ble Apex Court dealt with the essential ingredients Sections 304-B and 498-A IPC and further looked into the term dowry as defined in Section 2 of the Dowry Prohibition Act, 1961 and held that under Section 304-B IPC demand of dowry itself is punishable and it neither conceives or conceive of any agreement. If for convicting any offender, agreement for dowry is to be proved, hardly any offenders would come under the clutches of law.
37) The Hon‟ble Apex Court in Raj Gopal Asawa (2nd supra) at Para Nos.6 and 7 dealt with the essential ingredients of Sections 304-B and 498-A IPC and further the definition of the word „dowry' in Section 2 of the Dowry Prohibition Act and dealt with the issue elaborately at Para Nos.8 to 11. It is necessary to extract here the observations of the Hon‟ble Apex Court, as above:
"8. Explanation to Section 304B refers to dowry "as having the same meaning as in Section 2 of the Act", the question is: what is the periphery of the dowry as defined therein? The argument is, there has to be an agreement 26 at the time of the marriage in view of the words "agreed to be given" occurring therein, and in the absence of any such evidence it would not constitute to be a dowry. It is noticeable, as this definition by amendment includes not only the period before and at the marriage but also the period subsequent to the marriage. This position was highlighted in Pawan Kumar and Ors. v. State of Haryana (1998 CriLJ 1 144) .
9. The offence alleged against the respondents is under Section 304B IPC which makes "demand of dowry" itself punishable. Demand neither conceives nor would conceive of any agreement. If for convicting any offender, agreement for dowry is to be proved, hardly any offenders would come under the clutches of law. When Section 304B refers to "demand of dowry", it refers to the demand of property or valuable security as referred to in the definition of "dowry" under the Act. The argument that there is no demand of dowry, in the present case, has no force. In cases of dowry deaths and suicides, circumstantial evidence plays an important role and inferences can be drawn on the basis of such evidence. That could be either direct or indirect. It is significant that Section 4 of the Act, was also amended by means of Act 63 of 1984, under which it is an offence to demand dowry directly or indirectly from the parents or other relatives or guardian of a bride. The word "agreement" referred to in Section 2 has to be inferred on the facts and circumstances of each case. The interpretation that the respondents seek, that conviction can only be if there is agreement for dowry, is misconceived. This would be contrary to the mandate and object of the Act. "Dowry"
definition is to be interpreted with the other provisions of the Act including Section 3, which refers to giving or 27 taking dowry and Section 4 which deals with a penalty for demanding dowry, under the Act and the IPC. This makes it clear that even demand of dowry on other ingredients being satisfied is punishable. It is not always necessary that there be any agreement for dowry.
10. Section 113B of the Evidence Act is also relevant for the case at hand. Both Section 304B IPC and Section 113B of the Evidence Act were inserted as noted earlier by the Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113B reads as follows:-
"113-B: 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)."
The necessity for insertion of the two provisions has been amply analysed by the Law Commission of India in its 21st Report dated 10th August, 1988 on 'Dowry Deaths and Law Reform'. Keeping in view the impediment in the pre- existing law in securing evidence to prove dowry related deaths, legislature thought it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background presumptive Section 28 113B in the Evidence Act has been inserted. As per the definition of 'dowry death' in Section 304B IPC and the wording in the presumptive Section 113B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the concerned woman must have been "soon before her death" subjected to cruelty or harassment "for or in connection with the demand of dowry". Presumption under Section 113B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the Court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials:
(1) The question before the Court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304B IPC).
(2) The woman was subjected to cruelty or harassment by her husband or his relatives.
(3) Such cruelty or harassment was for, or in connection with any demand for dowry.
(4) Such cruelty or harassment was soon before her death.
11. A conjoint reading of Section 113B of the Evidence Act and Section 304B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the 'death occurring 29 otherwise than in normal circumstances'. The expression 'soon before' is very relevant where Section 113B of the Evidence Act and Section 304B IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. 'Soon before' is a relative term and it would depend upon circumstances of each case and no strait-jacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113B of the Evidence Act. The expression 'soon before her death' used in the substantive Section 304B IPC and Section 113B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression 'soon before' is not defined. A reference to expression 'soon before' used in Section 114. Illustration (a) of the Evidence At is relevant. It lays down that a Court may presume that a man who is in the possession of goods 'soon after the theft, is either the thief has received the goods knowing them to be stolen, unless he can account for his possession. The determination of the period which can come within the term 'soon before' is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression 'soon before' would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live- link between the effect of cruelty based on dowry demand 30 and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence".
38) In the light of the above decision of the Hon‟ble Supreme Court, there need not be any agreement at the time of marriage with regard to the dowry. As this Court already pointed out that the death of the deceased was otherwise than in normal circumstances and was within a period of seven years from the date of marriage.
39) As this Court already pointed out the prosecution by virtue of the evidence let in proved to the fact that on demand made by the accused, P.W.1 used to pay some amounts and further she paid an amount of Rs.9,500/- or Rs.10,000/- to the accused so as to purchase a she-buffalo. Apart from this, the cause set up by the accused that the deceased committed suicide as she averted to attend the agricultural coolie works was falsified by virtue of the evidence of P.W.2.
40) Now, it is a matter of appreciation to decide as to whether the evidence let in by the prosecution would meet the proximity test to the effect that alleged death of the deceased was in consequences to the harassment.
41) As seen from the decision of the Hon‟ble Supreme Court in Jaggu Ram's case (1 supra), the Hon‟ble Supreme Court 31 held that the expression soon before her death as mentioned in Section 304-B of IPC and Section 113-B of Indian Evidence Act is to be decided by the Court after analysing facts and circumstances leading to the death of victim whether there is any proximate connection between the demand of dowry, the act of cruelty or harassment or death.
42) Admittedly, in view of the language employed in Section 304-B IPC as well as Section 113-B of the Evidence Act, relating to the presumption under dowry deaths, prosecution is bound to establish that such demands are made soon before her death. What is „soon before the death‟ is a question to be considered by this Court. The Hon‟ble Apex Court in Raj Gopal Asawa's case (2nd supra), had an occasion to deal with how „soon before death‟ is to be ascertained in view of the provisions of Section 304-B IPC and Section 113-B of the Evidence Act. It is apposite to extract here the observations of the Hon‟ble Apex Court at Para No.11, which are as follows:
"11. A conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the 'death occurring otherwise than in normal circumstances'. The expression 'soon before' is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into 32 service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. 'Soon before' is a relative term and it would depend upon circumstances of each case and no strait-jacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression 'soon before her death' used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression 'soon before' is not defined. A reference to expression 'soon before' used in Section 114. Illustration
(a) of the Evidence At is relevant. It lays down that a Court may presume that a man who is in the possession of goods 'soon after the theft, is either the thief has received the goods knowing them to be stolen, unless he can account for his possession. The determination of the period which can come within the term 'soon before' is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression 'soon before' would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live-link between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough 33 not to disturb mental equilibrium of the woman concerned, it would be of no consequence".
43) So, by virtue of the above, it is very clear that „soon before‟ is a relative term and it would depend upon the circumstances of each case and no straightjacket formula can be laid down as to what would constitute a period of soon before the occurrence. No definite period has been indicated. Soon before death is not defined. The Court has to decide as to what is soon before death, basing on the proximity test.
44) Now, coming to the case on hand the allegations were such that after the deceased and accused were blessed with two children, accused used to demand for additional amounts. The evidence of P.W.1 means that the so-called harassment meted out by the deceased in the hands of the accused was continuing one. It is to be noted that the evidence of P.W.1 means that accused used to beat the deceased and ultimately he beaten the deceased and made her to consume pesticide resulting her death. Her evidence means that she found injury on the back side of the head of the deceased. As this Court already pointed out the medical officer who conducted autopsy testified about the presence of the injury. P.W.5, the Mandal Executive Magistrate also testified the same. It was not healed injury according to the evidence available on record. 34 Before the medical officer who conducted autopsy over the dead body of the deceased, accused did not challenge his testimony disputing the presence of the injury. So, the very existence of a cut injury present on left temporial region of skull size 1 x 2 cms., seize with bone deep was prior to the death of the deceased. Though the causing of such an injury and consumption of pesticide was not at one but the same time, the injury on the dead body of the deceased must have been caused just on the date of death of the deceased or prior to the date. The prosecution let in cogent evidence that the deceased and accused were alone residing together in a separate portion, though the in-laws were there in the same roof. It is not the case of the accused that he was not present when the deceased committed suicide. There was specific evidence of P.W.1 that when she found the dead body of the deceased by going to her house on hearing the news neither accused nor any other of the inmates were found. So, it is a case where the accused absconding after the episode. Some facts which are within the exclusive knowledge of the accused have to be explained by the accused.
45) In Jaggu Ram's case (1 supra), the facts were also that there was presence of injuries on the head of the deceased. It was also a case of dowry death. The accused concocted a 35 story that deceased was suffering from epilepsy and suffered head injuries after colluding against door bar during her bout of fits. The Hon‟ble Supreme Court made adverse comments against the defence of the accused. The Hon‟ble Supreme Court held that in view of Section 100 of Cr.P.C. and 106 of the Indian Evidence Act, burden of proving the facts specially within knowledge of the accused would lies on him only.
46) Coming to the present case on hand, it was within the exclusive knowledge of the accused as to how the deceased received injuries on the back side of the head. There was no dispute about the cause of death. There was no dispute about the place of death. The accused and deceased were residing together in a room in a separate portion. So, the accused had no probable say whatsoever explaining the circumstances in which the deceased received injuries. In the absence thereof, the case of the prosecution was further strengthened to the effect that the deceased was subjected to physical harassment in connection with demand for additional amounts. Therefore, the evidence on record amply proves the fact that soon before her death, the deceased was subjected to physical and mental harassment.
47) The embodied statutory presumption under Section 304-B of IPC means that if death of a woman was occurred 36 within seven years in otherwise than under normal circumstance, it shall be called as a dowry death. The statutory presumption under Section 113 of the Indian Evidence Act means that if the prosecution proves that the death was otherwise than in normal circumstances within seven years from the date of marriage and that it shown that before her death, she has been subjected by such person to cruelty or harassment in connection with a demand for dowry, the Court shall presume that such person has caused the dowry death. In my considered view, the accused miserably failed to prove contrary. The evidence on record would meet the proximity test i.e., the death of the deceased was in consequences of the harassment meted out to her.
48) During cross examination P.W.8-the SDPO deposed that immediate cause preceding the deceased consuming pesticide poison was petty quarrel, where the deceased intended to present clothes to her sister. He volunteers that it was preceded by series of incidents demanding money and other articles. So, the above answer elicited from the mouth of P.W.8 during cross examination is not going to help the accused in any way to contend that the deceased committed suicide on account of petty quarrels.
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49) Having regard to the above, this Court is of the considered view that the prosecution cogently established the essential ingredients of 498-A as well as Section 304-B of IPC. In my considered view, the learned Additional Sessions Judge rightly appreciated the evidence on record and rightly found the accused guilty of the charge under Sections 304-B as well as Section 498-A of IPC. Under the circumstances, this Court did not see any grounds to interfere with the conviction and sentence imposed against the accused.
50) In the result, the Criminal Appeal is dismissed, as such, the judgment, dated 12.10.2009 in Sessions Case No.628 of 2008, on the file of I Additional District & Sessions Judge, Guntur, shall stand confirmed.
51) The Registry is directed to take steps immediately under Section 388 Cr.P.C. to certify the judgment of this Court to the trial Court on or before 09.01.2024 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.
52) The Registry is directed to forward the copy of the judgment along with original records to the trial Court on or before 09.01.2024.
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Consequently, miscellaneous applications pending, if any, shall stand closed.
________________________ JUSTICE A.V. RAVINDRA BABU Dt. 02.01.2024.
PGR 39 THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU CRL. APPEAL NO.1225 OF 2009 Note:
The Registry is directed to forward the copy of the judgment along with original records to the trial Court on or before 09.01.2024.
Date: 02.01.2024 PGR