Andhra Pradesh High Court - Amravati
Bonu Srinu, Srikakulam Dt., vs The State Of Ap., Rep Pp., on 6 November, 2024
Author: K Suresh Reddy
Bench: K Suresh Reddy
APHC010476672016
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3486]
(Special Original Jurisdiction)
WEDNESDAY ,THE SIXTH DAY OF NOVEMBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE K SURESH REDDY
THE HONOURABLE SRI JUSTICE K SREENIVASA REDDY
CRIMINAL APPEAL NO: 340/2016
Between:
Bonu Srinu, Srikakulam Dt., ...APPELLANT
AND
The State Of Ap Rep Pp ...RESPONDENT
Counsel for the Appellant:
1. Sri O.Manohar Reddy, learned senior counsel for appellant/A.1.
Counsel for the Respondent:
1. PUBLIC PROSECUTOR (AP)
CRIMINAL APPEAL NO: 537/2016
Between:
Donka Komaleshwar Rao, Orissa State., ...APPELLANT
AND
Bonu Srinu Srikakulam and Others ...RESPONDENT(S)
Counsel for the Appellant:
1. P NAGENDRA REDDY
Counsel for the Respondent(S):
1. PUBLIC PROSECUTOR
2. VINOD KUMAR TARLADA
2
KSRJ & SRKJ
CRL.A.NO.340 OF 2016 & 537 OF 2016
THE HON'BLE SRI JUSTICE K.SURESH REDDY
AND
THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY
CRIMINAL APPEAL Nos.340 OF 2016 & 537 of 2016
COMMON JUDGMENT:
(per the Hon'ble Sri Justice K.Sreenivasa Reddy) Appellant in Criminal Appeal No.340 of 2016 is A.1 in Sessions Case No.171 of 2013 on the file of the I Additional District and Sessions Judge, Srikakulam (hereinafter referred to, as 'learned Sessions Judge'). The learned Sessions Judge, vide the impugned judgment dated 11.04.2016 in the aforesaid Sessions Case, found him guilty of the offences punishable under Sections 304B and 498A of the Indian Penal Code, 1860 (for brevity 'IPC'), accordingly convicted him and sentenced to undergo rigorous imprisonment for a period of ten years for the offence punishable under Section 304B IPC and to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.10,000/-, in default to suffer simple imprisonment for a period of six months, for the offence punishable under Section 498A IPC. Both the sentences were directed to run concurrently. The learned Sessions Judge found appellant/A.1 not guilty of the other 3 KSRJ & SRKJ CRL.A.NO.340 OF 2016 & 537 OF 2016 charges levelled against him and accordingly acquitted him of the said charges.
2. The learned Sessions Judge found the other accused viz.A.2 to A.6, not guilty of the charges levelled against them and accordingly acquitted them of the said charges. Challenging their acquittal, P.W.1 preferred the other Criminal Appeal No.537 of 2016.
3. Case of the prosecution is as follows.
A.1 is husband of one Bonu Kalyani (hereinafter referred to, as 'the deceased'). A.2 and A.3 are parents of A.1. A.4 is elder brother of A.1. A.5 is wife of A.4. A.6 is maternal grandmother of A.1. Marriage of the deceased with A.1 was performed on 25.03.2011. At the time of marriage, an amount of Rs.3.00 lakhs and gold ornaments weighing 4 ½ tulas were given by parents of the deceased to A.1 to A.3. Apart from the same, Rs.70,000/- was deposited in the name of the deceased and A.1 in Agri Gold Scheme for purchasing a bike. A.1 to A.5 were residing under one roof. After the marriage, the deceased joined A.1 for leading matrimonial life. Parents-in-law of A.1 invited the couple to their house on the 4 KSRJ & SRKJ CRL.A.NO.340 OF 2016 & 537 OF 2016 occasion of Ugadi festival and gave Rs.2,000/- to him. After return of the couple to Pathapatnam after the festival, A.1 raised a quarrel with the deceased that her parents gave only Rs.2,000/-. When the deceased informed the same to her parents, they convinced her to adjust in the interest of matrimonial life. The deceased continued her Degree course in the college at Parlakhemidi and used to visit her parents' house during leisure times.
A.1 was working in Indian Army and developed illicit intimacy with A.5, who is none other than wife of his elder brother (A.4) and neglected the deceased on the ground that she was not beautiful and demanded her to bring additional dowry. The deceased informed about the same to her parents. For two months after the marriage of A.1, A.4 and A.5 started residing separately in the first floor of their house. A.1 visited home on leave on the occasion of Dasara. When he was asked about the ill-treatment of the deceased, he stated that the deceased was not satisfying his sexual desires. The deceased also complained about the illicit intimacy of A.1 with A.5, and an altercation took place in that connection. On 03.02.2012, marriage of P.W.4, who is cousin of the 5 KSRJ & SRKJ CRL.A.NO.340 OF 2016 & 537 OF 2016 deceased, was celebrated, and A.1 did not attend the function though he was in the house, stating that he was not personally invited to the occasion. The deceased returned to home after the marriage on 05.02.2012. Since then, all the accused started harassing her both physically and mentally demanding additional dowry. A.1 to A.6 beat her and necked out her from home on 19.02.2012. When a report was lodged to police in that connection, police made a General Diary entry and called A.1 to A.6 for counselling wherein they assured, in writing, that they would not harass the deceased in future.
On 22.02.2012, the deceased was dropped at her house by her brother at about 6.00 PM. At about 7.45 PM on that day, A.1 raised a quarrel with the deceased for additional dowry, caught hold her hand and pulled out forcibly, as a result, her head was hit to the wall of her house and she fell down and became unconscious. Suspecting that she died, A.1 woke up A.3 and informed the matter to her. A.3 saw the deceased and came to conclusion that the deceased died and advised to pour kerosene on her and set fire, to show that she committed suicide. A.3 brought kerosene bottle. 6
KSRJ & SRKJ CRL.A.NO.340 OF 2016 & 537 OF 2016 A.1 shifted the deceased to bed room, kept her in sitting position, poured kerosene on her and set fire with match box. When flames spread, the deceased became conscious and caught A.1. As a result, A.1 sustained burn injuries to his hands and face. The deceased breathed her lost due to burns. Thereafter, A.1 to A.3 raised alarm stating that the deceased committed suicide. On hearing the same, P.Ws.6 to 8 rushed to the house of the accused. P.W.7 brought water with pot to extinguish flames and he received slight burn injuries to his hands in that connection. P.W.6 informed about the incident to P.W.1 over phone. On that, P.W.1 and other family members rushed to house of the accused by 9.45 PM and noticed the dead body of the deceased.
Basing on a report lodged by P.W.1, a case in crime No.15 of 2012 of Pathapatnam police station was registered for the offences punishable under Sections 302, 304B and 498A IPC. P.W.23-SDPO took up investigation, examined and recorded statements of witnesses, visited the scene of offence, conducted scene of offence panchanama and seized material objects. She got photographed the scene of offence and prepared a rough sketch of the scene of offence. P.W.20- 7 KSRJ & SRKJ CRL.A.NO.340 OF 2016 & 537 OF 2016 Tahsildar conducted inquest over the dead body of the deceased in the presence of inquestdars. Thereafter, the dead body was sent for postmortem examination. P.Ws.17 and 18 conducted postmortem over the dead body of the deceased. After receiving postmortem examination report and report from RFSL and after completion of investigation, police filed the charge sheet.
4. The case was taken cognizance by the Judicial Magistrate of First Class, Pathapatnam as P.R.C.No.1 of 2013 for the offences punishable under Sections 302, 304B, 498A, 201 read with 34 IPC against A.1 and A.3, and for the offences punishable under Section 498A IPC as against A.2, A.4 to A.6, and committed the case to the Court of Session.
5. The learned Sessions Judge framed charges for the offences punishable under Sections 302, 304B and 201 IPC against A.1 and A.3 and for the offences punishable under Sections 498A IPC against A.1 to A.6. When the respective charges were explained to respective accused, they pleaded not guilty and claimed to be tried.
8
KSRJ & SRKJ CRL.A.NO.340 OF 2016 & 537 OF 2016
6. In support of the case of prosecution, P.Ws.1 to 24 were examined and Exs.P1 to P19 were got marked, besides case properties M.Os.1 to 9. After completion of prosecution side evidence, the accused were examined under Section 313 CrPC to explain the incriminating circumstances appearing against them in the evidence of prosecution witnesses. They denied the same. On behalf of defence, no oral evidence was adduced, but Exs.D1 to D3 were got marked. After appreciating the evidence on record, the learned Sessions Judge convicted and sentenced the appellant/A.1, as stated supra, while acquitting him of the other charges, and acquitting the other accused of the charges levelled against them. Challenging the same, the present Criminal Appeals are preferred.
7. The learned senior counsel Sri O.Manohar Reddy appearing for the appellant/A.1 contended that the plea of the accused appears to be more probable in the present circumstances of the case that the deceased had no intention to live with the accused since she was unwilling to marry A.1. He further submits that on a perusal of the evidence on 9 KSRJ & SRKJ CRL.A.NO.340 OF 2016 & 537 OF 2016 record goes to show that the accused was complaining that the deceased was not cohabiting with A.1, which clearly goes to show that the deceased was not willing to stay with the accused. The learned senior counsel further emphasized that Ex.P7 is not a substantive piece of evidence and the same is inadmissible in evidence as the statement of dead person when it does not relate to cause of death of the deceased and therefore Ex.P7 is only a hearsay evidence. The learned senior counsel further submits that the contents of Ex.P7 cannot be used for any other purpose either to corroborate or contradict the version of prosecution witnesses. He further submits that there is absolutely no accusation that soon before her death, the accused harassed the deceased in connection with demand of dowry. He further submits that in fact, there is absolutely no evidence to show that the accused had harassed the deceased for dowry. He submits that the learned Sessions Judge has not appreciated the evidence on record in right perspective and erred in convicting and sentencing A.1 and hence, he prays to set aside the conviction and sentence recorded by the trial court against the appellant/A.1.
10
KSRJ & SRKJ CRL.A.NO.340 OF 2016 & 537 OF 2016
8. The learned Assistant Public Prosecutor contended that though there is no evidence on record to show that the deceased was harassed in connection with dowry, there is a complaint given by the deceased to P.W.14 stating that the deceased was being harassed in connection with the demand for dowry, and the said document has been marked through P.W.14, who categorically stated to that extent that the deceased was harassed for dowry. According to him, the evidence adduced by the prosecution is cogent and convincing and the judgment of the learned Sessions Judge is well reasoned and calls for no interference. Hence, he prayed to dismiss the Criminal Appeal No.340 of 2016.
9. On the other hand, learned counsel for the appellant in Criminal Appeal No.537 of 2016 contended that there is cogent evidence of material prosecution witnesses with regard to subjecting the deceased to cruelty by the accused and A.1 and A.3 pouring kerosene on her and setting fire to her, which resulted in her death, but the learned Sessions Judge erred in acquitting A.1 of the other charges and in acquitting A.2 to A.6 of the charges levelled against them. 11
KSRJ & SRKJ CRL.A.NO.340 OF 2016 & 537 OF 2016
10. Now, the point that arises for determination is whether the prosecution is able to bring home the guilt of the accused for the respective charges levelled against them beyond all reasonable doubt?
11. P.Ws.1 to 3 are closely related to the deceased. According to P.W.1, who is brother of the deceased, marriage of A.1 with the deceased was performed on 25.03.2011 as per their traditions near Sai Baba Temple of Ratnalapeta of Pathapatnam, and at the time of engagement, on demand, they agreed to give Rs.3.00 lakhs cash, 2 ½ tulas of gold and Rs.2.00 lakhs worth saree items, and apart from the same, they gave 4 tulas of gold to their sister. P.W.1 further stated that they offered Rs.50,000/- towards bike, but the accused demanded Rs.70,000/-, and hence, P.W.1 and others opened joint account in the name of the deceased and A.1 and deposited Rs.70,000/-. After the marriage, the deceased left to her in-laws' house. The couple was invited to the house of P.W.1 for Telugu News Year Ugadi festival after their marriage, and on that occasion, an amount of Rs.2,000/- cash was given to A.1. The deceased called P.W.1 and others 12 KSRJ & SRKJ CRL.A.NO.340 OF 2016 & 537 OF 2016 and informed that she was informed that less dowry was given to the accused and less amount was given at the time of the festival, and that she was not beautiful but his brother's wife is beautiful, and saying so, she was beaten by A.1. It is further deposed that A2 to A6, along with A.1, scolded the deceased. As she was studying Degree in Parlakhemundi college, the deceased went to house of P.W.1 and others and informed the same. Then they asked her to be patient and sent her to her in-laws' house. A.1, who was working as Soldier in Army, left to attend his job, as his leave was over. The deceased informed P.W.1 and others that whenever she called A.1, he did not answer her call, but when he used to call A5, she used to speak to him. The deceased suspected A.1 as he was not speaking to her, and when she questioned A.1, he used to beat her, and in connection with that, there was an altercation between the deceased and A.1. Then the matter was placed before elders viz.P.W.12. When P.W.1 and P.W.4 went to house of A.1 and questioned him, A.1 informed them that the deceased was not cohabiting with him and was not acting to his wishes. They went back to their village after informing that certain issues have to be within husband and 13 KSRJ & SRKJ CRL.A.NO.340 OF 2016 & 537 OF 2016 wife and family. P.W.1 further deposed that the deceased and A.1 came for marriage of P.W.4 viz. the deceased went one week or 10 days prior to the marriage and A.1 reached on the date of the marriage. P.W.1 further deposes that though all of them called A.1 and requested him to attend the marriage, he did not attend the marriage. Immediately, A.5 left from the marriage venue to Pathapatnam stating that she had some work at Pathapatnam. P.W.1 informed the same to the deceased. Then the deceased played all the phone call recordings between A.5 and A.1. They are vulgar and unspeakable. They asked P.W.1 not to take any hasty decision since she had bright future and wanted her life to be happy. Thereafter, they dropped the deceased at her in-laws' house and returned back to their village. P.W.1 further deposed that again, the deceased was beaten by A.1 as she questioned A.1, in the presence of A.3 and A.6. The same was informed to P.W.1 when she attended the college. P.W.1 and others requested A.6, who is elder of A1's family and requested her to settle the matter and also requested A.2 to A.5 to take care of the deceased and promise them to give 14 KSRJ & SRKJ CRL.A.NO.340 OF 2016 & 537 OF 2016 anything demanded by them as she was the only female child in their family.
On 19.02.2012, A.1 beat the deceased with bleeding injuries in the presence of A.2 to A.6 and sent her away from the house in the night, despite her request to open doors of the house. The deceased asked subtenant Lokanadham P.W.6 and informed them through his mobile phone. Thereafter, relatives of the deceased went to in-law's house at Pathapatnam and knocked doors of house of A.1, but they did not open the doors. On seeing the injuries sustained by the deceased, they went to police station and informed the police and requested not to register case but counsel A.1 to A.6. On the next day, police called A.1 to A.6 and in the presence of elders, counselled them, who undertook that they would take care of the deceased and gave assurance that the incident will not be repeated.
On 22.02.2012, P.W.1 and others sent the deceased at about 6.30 PM in an auto to her in-laws' house. They asked the accused to forgive them for their mistakes, if any, and to take good care of the deceased, and returned back to their village. P.W.1 received a phone call at about 7.30 PM and 15 KSRJ & SRKJ CRL.A.NO.340 OF 2016 & 537 OF 2016 spoke to the deceased and A.1 that they were having dinner at that time and that she would call her back after dinner. At 9.30 PM, he received another phone call from P.W.6 that there was a dispute going on, in the house of the deceased and asked them to come there immediately. When P.W.1 asked P.W.6 as to what was actually happening, he informed that the deceased was burning. Immediately, P.W.1, his family members and some of their street-mates left to house of the deceased, and by the time they reached there, they saw the deceased lying down in her bed room in a burnt condition and A.1 to A.6 were present there. Mean while, A.1 to A .6 escaped from their house.
P.W.7, who was staying upstairs of the house where the deceased and her in-laws used to stay, came to P.W.1 and informed that when he heard shouting, he came down and opened the bed room and saw the deceased burning and that A.1 to A.6 were present there and watching without trying to stop fire. Then, he put water on the deceased and he also received burn injuries on his hand and his hair was also burnt, and by using thick cloth like Bontha, he tried to stop the fire. P.W.8 asked P.W.1 and others to check whether the 16 KSRJ & SRKJ CRL.A.NO.340 OF 2016 & 537 OF 2016 deceased was alive or not, so as to take her to hospital. But, they found that the deceased was dead. On hearing the same, they lodged a report in police station.
In cross-examination, P.W.1 categorically stated that they did not pay anything as on the engagement day. He further stated that an amount of Rs.70,000/- was deposited two days after the marriage in the joint account of both A.1 and the deceased.
12. According to P.W.2, in 2009, the accused made a proposal and by that time, the deceased was studying Intermediate course. Since she was young, P.W.2 and others refused for performing her marriage. After some time, the accused once again made a proposal, and as Pathapatnam is near to Parlakhemidi, they agreed to the marriage proposal. In the year 2010, engagement was performed and in the year 2011 marriage was performed at Pathapatnam at the house of A.1. At the time of the marriage, they gave Rs.3.00 lakhs dowry and 4 ½ tulas of gold and Rs.50,000/- towards bike. But, A.1 demanded Rs.70,000/- towards bike and the amount of Rs.70,000/- was put in fixed deposit in Agri Gold 17 KSRJ & SRKJ CRL.A.NO.340 OF 2016 & 537 OF 2016 in their name. Immediately after the marriage, the deceased joined her husband. The deceased informed P.W.2 that all the accused raised a dispute that Ugadi katnam was very less and dowry given at the time of the marriage was also less. On that, she asked the deceased to adjust and they gave sufficiently as per their capacity. The deceased was studying Degree course in Parlakhemudi by staying at her in-law's house at Pathapatnam, and in the afternoon, she used to come to house of P.W.2 for lunch and after taking rest, she used to go to her in-laws' house. A.1 used to work in Army. The deceased informed that when A.1 comes for vacation, he used to raise dispute that she was not beautiful and he married her for less dowry and that A.5 was more beautiful than her. Later, A.1 left to join his job and returned to the village on the occasion of Dasara, and he used to raise a dispute everyday along with A.2 to A.6. The deceased informed them that A.1, along with A.2 to A.6, harassed her that she is not beautiful and she brought less dowry. The matter was referred to elders, and on questioning, A.1 informed that they the deceased was not cohabiting with him. Then, P.W.2 and others scolded the deceased. All the 18 KSRJ & SRKJ CRL.A.NO.340 OF 2016 & 537 OF 2016 accused assured them to take good care of the deceased, and on that, they returned to their village. After completion of vacation, A.1 left for his job. The deceased was regularly informing with regard to harassment meted out by the accused. A.1 did not attend marriage of P.W.4 whereas A.2 to A.6 attended the marriage. Two days after the marriage, they dropped the deceased at her in-laws' house. On questioning A.1 as to why he did not attend the marriage, he stated that as all the family members did not invite him, he did not attend the marriage.
On 19th i.e. prior to Sivaratri festival, there was a dispute between the accused and the deceased, wherein the deceased was beaten and sent out of the house. The deceased informed the same through mobile phone of P.W.6, and a report was lodged to police and the deceased informed the incidents to SI of Police and asked not to register case but only counsel them since A.1 is a government employee. After counselling, A.1 to A.6 assured that they would take good care of the deceased and signed on some papers. Police asked them to send the deceased to her in-laws' house after two days. On 22.02.2012, at about 6.00 PM, P.W.2 sent the 19 KSRJ & SRKJ CRL.A.NO.340 OF 2016 & 537 OF 2016 deceased along others to her in-laws' house. At about 7.00 or 7.30 PM, when P.W.1 called the deceased and enquired, she stated that they were having dinner. Thereafter, at about 9.00 or 9.30 PM, they received a phone call from P.W.6 that a dispute with shouting was taking place in the house of the deceased, and when the same was informed to them, they rushed to house of the deceased and found the house in smoke and that the deceased was lying dead with burn injuries on ground in her bed room. By the time they came out of the house, A.1 to A.6 absconded.
In cross-examination, P.W.2 concurred with the fact that she gave Rs.70,000/- towards bike, then A.1 gave money to her son and asked to deposit the same in Agri Gold, and the same was deposited in the name of the deceased and A.1.
13. P.W.3 is mother of the deceased. She too concurs with the versions given by P.Ws.1 and 2.
14. P.W.4 is brother of the deceased. He too narrates the same version as that of P.Ws.1 and 2. According to P.W.4, he also states to the extent that a panchayat was held before village elders, and on questioning A.1, he categorically stated 20 KSRJ & SRKJ CRL.A.NO.340 OF 2016 & 537 OF 2016 that the deceased was not cohabiting with him. Then, the relatives of the deceased asked them to keep it within themselves. They also suggested the deceased to cohabit with A.1. Entire discussion had taken place in the presence of A.6 as she is also one of the village elders of Pathapatnam and it was requested her to take care of the deceased.
In cross-examination, P.W.4 denies a suggestion made by the accused that on the request of P.W.4, A.1 got deposited Rs.20,000/- in the name of the deceased by showing A.2 as nominee on 22.06.2011 and Rs.35,000/- in the name of the deceased by showing A.1 as nominee on 04.05.2011 and Rs.35,000/- in A.1's name by showing the name of the deceased as nominee on the same day. P.W.4 further stated that these amounts were deposited by A.1 on his own accord thinking that the amounts would be doubled within the term specified. It is P.W.4, who introduced A.1 to the Manager of Birla Sun Life Insurance, Parlakhemidi branch where he got a policy.
15. P.W.5 too concurs with the version given by P.Ws.1 to
4. 21 KSRJ & SRKJ CRL.A.NO.340 OF 2016 & 537 OF 2016
16. P.W.6 speaks with regard to the deceased burning in flames and lying on floor. He further deposed that he saw A.1 trying to put off flames, and he does not know whether by that time the deceased was alive or not and there was no movement. Immediately thereafter, he rushed to the house and informed the same to the family members of the deceased.
17. P.W.7 is one of the neighbours of the accused. He is son of P.W.8. He was aged 17 years by the date of giving evidence. The learned Sessions Judge put some preliminary questions and after satisfying with the capacity of the witness to give rationale answers, she proceeded to record his evidence. According to P.W.7, at about 9.00 PM on 22.02.2012, when he heard cries in the ground floor, immediately he rushed down and saw the deceased dead and burning in their bed room beside the bed. Immediately, he rushed out to bring water with a tumbler and tried to put off the flames by pouring water, but flames increased and he received burn injuries while he was trying to stop the flames. 22
KSRJ & SRKJ CRL.A.NO.340 OF 2016 & 537 OF 2016 According to him, all the accused were present inside the outside the house.
In cross-examination, he stated that the house of A.1 would be consisting of 5 rooms and he denied a suggestion that he saw the deceased in 4th room from outside. He further stated that on the date of the incident, he did not inform the same to police that he received burn injuries. According to him, he did not go to the Doctor and he left to Parlakhemudi on the night of the incident and returned back to Pathapatnam on 26.02.2012. He did not inform anybody about the incident. His mother gave him first aid in Pathapatnam.
18. P.W.8 states that there was a dispute between A.1 and the deceased, and while the deceased used to come to come upstairs to dry clothes, she informed that it was getting tough for her and that she was asked by her husband and in- laws to go away. P.W.8 suggested to adjust and to live happily. He further deposed that because of the disputes between the deceased and A.1, a police report was given, and A.3 and A.5, when came upstairs to dry clothes, informed 23 KSRJ & SRKJ CRL.A.NO.340 OF 2016 & 537 OF 2016 that the deceased filed a case against them and that A.1 would lose his job and that they would see once she returns back and they were angry with the deceased. After two days, at about 6.00 PM, the deceased was brought to her in-laws' house by her mother and two brothers, and all of them advised them to live happily without any disputes. After cooking dinner to his children, P.W.8 left for her friend's house to bring her daughter from tuition. She heard cries from the house of A.3 and rushed there, and saw her son (P.W.7) trying to put off flames. P.W.8 saw only legs of the deceased and since she was scared, she took away her son. P.W.7 received burn injuries on his hand and hair while trying to put off the flames. P.W.8 further states that she was examined by police after four days of the incident.
19. P.W.14 was working as Sub Inspector of Police, Pathapatnam police station at the relevant point of time of the incident. According to him, on 19.02.2012 at about 10.00 PM, the deceased lodged a report and asked him not to register a case and requested to conduct counselling in the presence of elders on the next day. P.W.14 made a G.D. 24 KSRJ & SRKJ CRL.A.NO.340 OF 2016 & 537 OF 2016 entry with regard to the said report and asked the deceased and her family members to come to police station along with respective elders. On the next day, all of them discussed in police station and reached a compromise, and he also counselled them. They executed a compromise deed in police station. Later, P.W.14 took a bind over from all of them and made a G.D. entry in that regard. Ex.P7 is the report dated 19.12.2015 given by the deceased.
20. P.W.17, Civil Assistant Surgeon, Area Hospital, Palakonda, on receipt of requisition of police, conducted autopsy on the dead body of the deceased on 23.02.2012 along with P.W.18. According to her, the death occurred due to cardio respiratory arrest. Ex.P13 is the postmortem examination report. Ex.P14 is the RFSL report. As per the RFSL report, on item Nos.1 and 2, kerosene (hydro carbons) was found in the stomach. In her final opinion, she opined that the deceased died of cardio respiratory arrest due to burns and that the patient was not pregnant at the time of autopsy and the death is not due to toxins or poisons, but it is due to antemortem burns. Ex.P15 is the final opinion. 25
KSRJ & SRKJ CRL.A.NO.340 OF 2016 & 537 OF 2016
21. P.W.19, who worked as Civil Assistant Surgeon, CHC, Pathapatnam, deposed that on 27.02.2012, he examined A.1 on receipt of requisition from police and found multiple small vesicle and boils present about 2 x 2 cms noted at right hand and left index finger, right side chest dark coloured and some ruptured and the age of the wound is about 3 to 5 days. He opined that the injury is simple in nature. Ex.P16 is the wound certificate issued by him.
22. On a conspectus of the entire evidence on record goes to show that death of the deceased is because of the cardio respiratory arrest due to burns. It is evident from the evidence on record that there were disputes between the accused and the deceased, and A.1 was complaining that the deceased was not cohabiting with him. The prosecution has not come out with the genesis of the occurrence of the incident. Motive part varied from time to time. Initially, according to the prosecution case, the accused proposed for the marriage of the deceased with A.1. But, since the deceased was too young and as she was studying Intermediate course, her elders did not accept for the 26 KSRJ & SRKJ CRL.A.NO.340 OF 2016 & 537 OF 2016 marriage proposal. After more than a year, once again, the accused came up with the proposal of the marriage of the deceased with A.1. Since the accused were staying nearby their village where only a bridge separates both the villages, elders of the deceased accepted for the marriage proposal.
23. According to the prosecution case, the deceased was harassed by the accused for the reason that the dowry which was given to them was not sufficient. On the other hand, from the evidence of prosecution witnesses, it is clear that the amounts that were given to A.1 were got deposited in the name of the deceased by showing A.2 as nominee in the deposit for Rs.20,000/- on 22.06.2011 and by showing name of A.1 as nominee in the deposit for Rs.35,000/- on 04.05.2011. The amount of Rs.70,000/- which was given to the accused for purchase of a bike, was deposited in the joint account of the deceased and A.1 in Agri Gold. If really there is harassment that is meted out to the deceased on the ground that there was less dowry, question of the accused depositing these amounts in the name of the deceased and they being shown as nominees would not arise. The other 27 KSRJ & SRKJ CRL.A.NO.340 OF 2016 & 537 OF 2016 aspect of the motive that is shown in the prosecution case is that the relatives of the deceased called for a panchayat before elders. In the said panchayat held, A.1 categorically stated that the deceased was not cohabiting with him. According to the evidence of prosecution witnesses, the deceased was admonished and asked to cohabit with A.1. Therefore, in that regard, a dispute was going on between the accused and the deceased.
24. The other circumstance where the prosecution has come up with regard to the motive is that since the date of marriage, A.1 was abusing the deceased as she was not good looking and A.5 was looking better than the deceased. The deceased was also suspecting that there was illicit relationship between A.1 and A.5, who is wife of his brother A.4. One of the factors that was brought up by the prosecution is that the marriage of P.W.4 was performed wherein A.2 to A.6 attended the function, whereas A.1 did not attend the marriage and stayed back at Pathapatnam. On coming to know about the same, A.5 left the marriage and went to Pathapatnam. According to the prosecution version, certain phone call recordings were recorded between A.5 and 28 KSRJ & SRKJ CRL.A.NO.340 OF 2016 & 537 OF 2016 A.1 and the same were displayed before P.W.1. According to P.W.1, the language was so vulgar and unspeakable. Admittedly, no such audio recordings were seized by the prosecution. Except the said vague version that there was illicit intimacy between A.1 and A.5, there is no material to substantiate the said version. Therefore, on a perusal of the evidence on record, it is difficult to fix motive for the accused to cause death of the deceased.
25. In order to attract an offence punishable under Section 304B IPC, the following five conditions have to be established by the prosecution:
Firstly: The death of a woman should be caused by any burns or bodily injury otherwise than under normal circumstances;
Secondly: Such death should have occurred within seven years of her marriage;
Thirdly: She must have been subjected to cruelty or harassment by her husband or any relative of her husband;
Fourthly: Such cruelty or harassment should be for or in connection with demand of dowry and Fifthly: Such cruelty or harassment is shown to have been meted out to the woman soon before her death.29
KSRJ & SRKJ CRL.A.NO.340 OF 2016 & 537 OF 2016
26. Section 113B of the Indian Evidence Act, 1872 enjoins a statutory presumption as to dowry death. When the question is whether a person has committed the dowry death of a woman or not, once it is proved by the prosecution that the deceased was subjected to cruelty or harassment for, or in connection with, any demand of dowry soon before her death, presumption under Section 113B of the Indian Evidence Act, 1872 can be drawn that such person had caused the dowry death. It means, the presumption under Section 113 B of the Indian Evidence Act, 1872 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.
27. The presumption as to dowry death would get activated only upon proof of the fact that the deceased woman was 30 KSRJ & SRKJ CRL.A.NO.340 OF 2016 & 537 OF 2016 subjected to cruelty or harassment for or in connection with any demand for dowry by the accused and that too in the reasonable contiguity of death. Such a proof is thus the legislatively mandated pre-requisite to invoke the otherwise statutorily ordained presumption of commission of the offence of dowry death by the person charged therewith.
28. Apparently, basing on the evidence on record, there is no harassment with regard to demand of dowry soon before death of the deceased. None of the prosecution witnesses came up with the version that the deceased was beaten or harassed for want of more dowry. Apart from the same, it is the case of the prosecution witnesses that the amounts which were given at the time of the marriage between the deceased and A.1, were deposited in the name of the deceased or in the joint account of both the deceased and A.1.
29. In the case on hand, the allegation is that at the time of marriage, the deceased was not good looking and A.5 was better than that of the deceased and the amounts which were paid at the time of marriage to the accused were not sufficient. Except the said accusation, there is no other 31 KSRJ & SRKJ CRL.A.NO.340 OF 2016 & 537 OF 2016 evidence to connect the accused with the crime that they demanded any monies from the deceased or her relatives. It is pertinent to mention here that there should be nexus between the demand of dowry and to the death of the deceased. Going by the evidence on record, there is absolutely no evidence to show that soon before her death, the deceased was subjected to cruelty or harassment for want of more dowry.
30. The learned Assistant Public Prosecutor relied upon Ex.P7-report given by the deceased to P.W.14 dated 19.02.2012. According to him, Ex.P7 would suffice to bring the accused within the purview of the offence punishable under Section 304B IPC. A perusal of Ex.P7 goes to show that the said report was given by the deceased on 19.02.2012 at 10.00 PM and except making G.D. entry, the same has not been registered as an FIR. It is apparent on the record that the prosecution witnesses along with the deceased gave the report to police, but at the same time, they requested the police not to register a case. By virtue of the same, it is apparent that their intention was to bring the accused to 32 KSRJ & SRKJ CRL.A.NO.340 OF 2016 & 537 OF 2016 police station and to counsel them. Accordingly, P.W.14, on receipt of the report, made a G.D. entry and called the accused to police station on the next day, and both the accused and the prosecution witnesses had negotiations and compromised the issues. Basing on the said compromise, P.W.14 made a G.D. entry and suggested that the deceased be dropped at the house of the accused after lapse of two days.
31. The learned Assistant Public Prosecutor, by relying on the recitals in the complaint that since last Dasara, the accused started harassing asking additional dowry, submitted that there was a demand for dowry. This Court perused Ex.P7-complaint given by the deceased. There is a vague and bald sentence that the accused were demanding dowry since last Dasara. Except the said statement, there is no other recital in connection with demand of dowry. If really the accused were demanding dowry and in connection with that, the deceased was subjected to cruelty or harassment, question of the prosecution witnesses, giving the complaint to police and requesting not to register the same would not 33 KSRJ & SRKJ CRL.A.NO.340 OF 2016 & 537 OF 2016 arise. By virtue of the same, the prosecution party intended to threaten the accused by giving the report and at the same time, requesting the police not to register the case would speak volumes. By virtue of the act of the prosecution witnesses, it can be safely inferred that they wanted to put sword on the head of the accused hanging in the form of complaint, so as to bring them to their terms. Apart from the same, the said complaint has not been converted into FIR and the accused would not have the benefit of cross-examining with the recitals that have been made by the deceased in Ex.P7. Admittedly, Ex.P7 does not relate to the cause of death of the deceased so as to bring the same within the purview of a statement under Section 32 of the Indian Evidence Act, 1872. It only alleges some harassment. Since the parties entered into compromise after counselling, the report which has been given by the deceased would become insignificant, and much importance cannot be attached to the said report. Apart from that, there is no other evidence to show that the deceased was harassed by the accused in connection with demand of dowry.
34
KSRJ & SRKJ CRL.A.NO.340 OF 2016 & 537 OF 2016
32. Learned senior counsel appearing for A.1 relied on a decision in Charan Singh alias Charanjit Singh v. State of Uttarakhand, 1wherein it is held thus: (paragraphs 16, 17, 20, 21 and 23).
"16. The cruelty or harassment has to be soon before the death. In his evidence, Pratap Singh (PW-1), father of the deceased stated that two months after the marriage his daughter came to the parental home stating that the appellant was demanding motorcycle, however, she was sent back. Thereafter, she again came and apprised him that the demand of motorcycle was being pressed by the appellant. Besides motorcycle, land was also demanded. There is nothing in the statement that any such demand was raised immediately before the death as the incidents sought to be referred to are quite old. He admitted in his cross examination that at the time of funeral, his mother- in-law and two brothers-in-law were present. However, they were threatened not to lodge the complaint. Balbir Singh (PW-2), maternal uncle of the deceased, merely stated that at the time of marriage sufficient dowry was given by the father of the deceased. However, later he heard that the appellant had demanded the motorcycle. In his cross-examination, he admitted that he was living at the distance of about one furlong from the house of the appellant. No dowry was demanded at the time of marriage of the deceased. He did not state that the 1 2023 SCC OnLine SC 454 35 KSRJ & SRKJ CRL.A.NO.340 OF 2016 & 537 OF 2016 deceased ever shared with him about the demand of dowry or any harassment on account of non-fulfilment thereof though he was living close to the matrimonial house of the deceased.
17. Beero Bai (PW-3), the maternal grandmother of the deceased, stated that her house is located at a distance of about one mile from the house of the appellant. She used to go to the house of the deceased. The deceased was being treated badly. She was not allowed to go to her parental house. The deceased informed her that the appellant used to ask her to bring motorcycle from her maternal grandmother. After the death of her husband in February 1995, the appellant asked the deceased to get land from her maternal grandmother. On a demand made to her, she replied in negative. However, in her cross- examination, she stated that the land was not demanded from her. Even in her statement, there is nothing to suggest that soon before the death, any cruelty or harassment was made to the deceased, either by the appellant or his family members. All what is stated is regarding the demand. There are no details of any cruelty or harassment, though this witness was living about a kilometre from the house of the deceased and is her maternal grandmother.
20. Babban Singh (PW-6), Circle Officer, Faridpur was the Investigating Officer. In his examination-in-chief, he admitted that he recorded the statement of Jagir Singh. He is the person who, as per the complaint made to the 36 KSRJ & SRKJ CRL.A.NO.340 OF 2016 & 537 OF 2016 police, had informed the father of the deceased about the death of his daughter. However, he was not produced in evidence.
21. In the aforesaid evidence led by the prosecution, none of the witnesses stated about the cruelty or harassment to the deceased by the appellant or any of his family members on account of demand of dowry soon before the death or otherwise. Rather harassment has not been narrated by anyone. It is only certain oral averments regarding demand of motorcycle and land which is also much prior to the incident. The aforesaid evidence led by the prosecution does not fulfil the pre- requisites to invoke presumption under Section 304B IPC or Section 113B of the Indian Evidence Act. Even the ingredients of Section 498A IPC are not made out for the same reason as there is no evidence of cruelty and harassment to the deceased soon before her death.
23. On a collective appreciation of the evidence led by the prosecution, we are of the considered view that the prerequisites to raise presumption under Section 304B IPC and Section 113B of the Indian Evidence Act having not been fulfilled, the conviction of the appellant cannot be justified. Mere death of the deceased being unnatural in the matrimonial home within seven years of marriage will not be sufficient to convict the accused under Section 304B and 498A IPC. The cause of death as such is not known."37
KSRJ & SRKJ CRL.A.NO.340 OF 2016 & 537 OF 2016 He also relied on a decision in Baijnath and others v. State of Madhya Pradesh2 (paragraphs 33, 34, 35 and 36) "33. Tested on the judicially adumbrated parameters as above, we are of the unhesitant opinion that the prosecution has failed to prove beyond reasonable doubt, cruelty or harassment to the deceased for or in connection with any demand for dowry as contemplated in either of the two provisions of the Code under which the accused persons had been charged. Noticeably, the alleged demand centres around a motorcycle, which as the evidence of the prosecution witnesses would evince, admittedly did not surface at the time of finalisation of the marriage. PW 5, the mother of the deceased has even conceded that there was no dowry demand at that stage. According to her, when the husband (who is dead) had insisted for a motorcycle, thereafter he was assured that he would be provided with the same, finances permitting. Noticeably again, the demand, as sought to be projected by the prosecution, if accepted to be true had lingered for almost two years. Yet admittedly, no complaint was made thereof to anyone, far less the police. Apart from the general allegations in the same tone ingeminated with parrot-like similarity by the prosecution witnesses, the allegation of cruelty and harassment to the deceased is founded on the confidential communications by her to her parents in particular and is not supported by any other quarter.
2 (2017) 1 SCC 101 38 KSRJ & SRKJ CRL.A.NO.340 OF 2016 & 537 OF 2016
34. To the contrary, the evidence of the defence witnesses is consistent to the effect that no demand as imputed had ever been made as the family of the husband was adequately well-off and further Appellant 1 Baijnath had been living separately from before the marriage. According to them there was no occasion for any quarrel/confrontation or unpleasantness in the family qua this issue. Significant is also the testimony of DW 3, the sister-in-law of the deceased who indicated abandonment of the matrimonial home by her with the son of Thoran Singh, the Sarpanch of the village for which she understandably had incurred the displeasure of the in-laws. DW 4, the father of DW 3 who had given his daughter in marriage in the same family had deposed that he did not ever encounter any demand for dowry. The testimony of the prosecution witnesses PW 3 and PW 7 fully consolidate the defence version.
35. A cumulative consideration of the overall evidence on the facet of dowry, leaves us unconvinced about the truthfulness of the charge qua the accused persons. The prosecution in our estimate, has failed to prove this indispensable component of the two offences beyond reasonable doubt. The factum of unnatural death in the matrimonial home and that too within seven years of marriage therefore is thus ipso facto not sufficient to bring home the charge under Sections 304-B and 498-A of the Code against them."
39
KSRJ & SRKJ CRL.A.NO.340 OF 2016 & 537 OF 2016 He also placed reliance on a decision in Major Singh & another v. State of Punjab3 (paragraph 16) "16. To attract conviction under Section 304-B IPC, the prosecution should adduce evidence to show that "soon before her death", the deceased was subjected to cruelty or harassment. There must always be proximate and live link between the effects of cruelty based on dowry demand and the death concerned. In Hira Lal v. State (Govt. of NCT of Delhi) [(2003) 8 SCC 80 : 2003 SCC (Cri) 2016 : AIR 2003 SC 2865] it was observed as under :
(SCC pp. 86-87, para 9) "9. 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. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of '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 service. The 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 the prosecution. 'Soon before' is a relative term and it would depend upon the circumstances of each case and no straitjacket 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 3 (2015) 5 SCC 201 40 KSRJ & SRKJ CRL.A.NO.340 OF 2016 & 537 OF 2016 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 the expression 'soon before' used in Section 114 Illustration (a) of the Evidence Act 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 or has received the goods knowing them to be stolen, unless he can account for their 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 cruelty or harassment concerned 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 death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence.""
33. This Court, on a perusal of the evidence on record, is of the opinion that marriage of the deceased was performed with A.1 on 25.03.2011. Since the deceased was not cohabiting with A.1, there were disputes between the couple. In connection with that, the prosecution party called for a panchayat which was held in the midst of elders, wherein A.1 categorically stated that the deceased was not cohabiting with him. The panchayat elders and relatives of the deceased admonished the deceased and A.1 that this is a matter to be 41 KSRJ & SRKJ CRL.A.NO.340 OF 2016 & 537 OF 2016 settled between the family. At the same time, brothers of the deceased also suggested the deceased to cohabit with A.1.
34. In his examination under Section 313 CrPC, the accused categorically stated that as the deceased was beautiful, the accused, without taking dowry, married her. He stated that the deceased was not interested in getting married with him and the same was informed to the in-laws of A.1 also. On the date of the incident, she was forcibly brought and dropped in the house of A.1, and the deceased, without there being any interest, committed suicide. The said version given by the accused read in conjunction with the evidence on record goes to show that right from the beginning, A.1 was interested in getting married with the deceased. Accordingly, he sent a proposal for marriage. But, the elders of the deceased refused the proposal as she was too young at that time.
Thereafter, after lapse of one year, once again, a proposal was made by the accused to the deceased for marriage. At the behest of parents of the deceased and the brothers, on the pretext that the accused live nearby their village, they agreed for the marriage of the deceased with A.1. It is quite evident 42 KSRJ & SRKJ CRL.A.NO.340 OF 2016 & 537 OF 2016 from the evidence on record that the amounts which have been paid at the time of marriage, were converted into deposits by the accused either in the name of the deceased, the accused being the nominee, and vice versa. Therefore, it can be safely inferred that the dispute that arose between the accused and the deceased is in connection with the fact that the deceased was refusing to cohabit with the accused. The dispute arose time and again and the same led to holding of panchayat by elders. Even in the panchayat, A.1 categorically stated that the deceased was not cohabiting with him. After that, both parties were chastised and the deceased was dropped at the house of the accused. On 19.02.2012, a quarrel ensued between the accused and the deceased, which led to filing of a report Ex.P7 to police. But, at the same time, the same has not been registered as an FIR. On the next day, after negotiations, the parties entered into compromise and by virtue of the same, the said report Ex.P7 was not registered as FIR. From the aforesaid discussion, this Court is of the opinion that the prosecution failed to establish beyond reasonable doubt that the deceased was subjected to cruelty or harassment by her husband or any of the relatives 43 KSRJ & SRKJ CRL.A.NO.340 OF 2016 & 537 OF 2016 of her husband, in connection with demand of dowry soon before her death. Therefore, the presumption under Section 113B of the Indian Evidence Act, 1872 cannot be drawn in the case on hand. The learned Sessions Judge has not considered the evidence on record in right perspective and erred in convicting and sentencing the appellant/A.1.
35. In view of the foregoing discussion, this Court is of the opinion that the conviction and sentence recorded by the learned Sessions Judge against the appellant/A.1 for the offences punishable under Sections 304B and 498A IPC are not sustainable in the eye of law. As a consequence, Criminal Appeal No.537 of 2016 is devoid of merits and is liable to be dismissed.
36. In the result, the Criminal Appeal No.340 of 2016 is allowed, setting aside the convictions and sentences recorded by the learned I Additional District and Sessions Judge, Srikakulam in the judgment dated 11.04.2016 in Sessions Case No.171 of 2013. The appellant/A.1 is found not guilty of the charges under Sections 304B and 498A IPC and is accordingly acquitted of the said charges and is set at liberty.44
KSRJ & SRKJ CRL.A.NO.340 OF 2016 & 537 OF 2016 Fine amount, if any, paid by him shall be refunded to him.
Criminal Appeal No.537 of 2016 is dismissed.
----------------------------------------- JUSTICE K.SURESH REDDY
------------------------------------------------ JUSTICE K.SREENIVASA REDDY 06.11.2024 DRK 45 KSRJ & SRKJ CRL.A.NO.340 OF 2016 & 537 OF 2016 THE HON'BLE SRI JUSTICE K.SURESH REDDY AND THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY COMMON JUDGMENT IN CRIMINAL APPEAL Nos.340 OF 2016 & 537 of 2016 (per the Hon'ble Sri Justice K.Sreenivasa Reddy) 06.11.2024 DRK