Andhra HC (Pre-Telangana)
Vemuri Venkateswara Rao And Anr. vs State Of Andhra Pradesh on 4 July, 1991
Equivalent citations: 1991(3)ALT237, 1992CRILJ563
JUDGMENT Bhaskar Rao, J.
1. This is an appeal filed by A-1 and A-2 assailing the convictions and sentences imposed on them. A-1 was convicted u/Ss. 302, 201 and 498-A, IPC and sentenced to suffer imprisonment for life, for 5 years and 3 years respectively, whereas A-2 was convicted u/S. 498-A and 201, IPC and sentenced to suffer RI for 2 years and 4 years respectively. Originally, A-1 to A-3 were tried under different charges and A-3 was acquitted of all the charges by the Court below. Hence, this appeal by A-1 and A-2.
2. The gravamen of the charge against the accused is that A-1 being the husband and A-2 being the sister of A-1 were harassing the deceased, the wife of A-1, to bring the balance amount of dowry and also to sell the landed property given to her as 'pasupukumkuma' and were also intimidating her by propagating a rumour that she was having illicit intimacy with one Koteswara Rao, and that in furtherance of their common intention to cause the death of the said Koteswaramma (the deceased), they committed her murder on 26-12-1987, and also caused disappearance of the evidence in regard to the said offence of murder by hanging the dead body of the deceased in a room so as to give an appearance of suicide.
3. The case of the prosecution as deposed to by the material prosecution witnesses is :-
The deceased was the wife of A-1, A-2 is the elder sister of A-1 while A-3 is the husband of A-2. The marriage of the deceased took place about one year prior to the date of occurrence and at the time of her death, she was carrying six months' pregnancy. PW-4 is the brother of the deceased while PW-6 is the landlord of the house in which the deceased and the accused were living. At the time of marriage, it is in evidence, the parents of the deceased agreed to pay Rs. 20,000/- in cash and give Ac. 1-50 cents of land to A-1. Out of the agreed amount, only Rs. 10,000/- was paid to A-1 in the presence of A-3 at the time of marriage and the balance was undertaken to be paid later on. The marriage took place on the scheduled date. In March 1987, after the marriage, A-1 sent the deceased to her parents' house to bring the balance amount as it was not paid. Then PW-4 (the brother of the deceased) and his father went to the house of the accused and explained their financial difficulties. Thereupon the accused granted them time up to August, 1987 to make the payment. Accordingly the amount was paid to A-1 in the presence of A-3. However, within 2 months thereafter, A-1 to A-3 began to harass the deceased asking her to dispose of AC.-50 cents of land given to her towards 'pasupukumkuma' and bring the cash. In that regard, A-1 also started beating the deceased at the instigation of A-2 and A-3. The deceased, therefore, went to her parents' house at Jaggaiahpet and informed them about the harassment and cruelty meted out to her. PW 4 consoled the deceased, advised her to persuade A-1 not to insist upon the sale of land and sent her back to A-1's house. After a few days, when she again came to her parents' house, PW-4 got her examined by a doctor and found her to be pregnant. The deceased was again sent to A-1's house.
4. On the fateful day at 2-00 p.m., the deceased went to the house of PW-5, a neighbour, and told her that A-1 to A-3 were ill-treating her for not agreeing to sell the land given to her as pasupukumkuma. The deceased informed PW-5 that A-1 was also beating her at the instigation of A-2 and A-3. The deceased further asked PW-5 for a loan of Rs. 20/- to purchase kerosene for the purpose of cooking. PW-5 gave Rs. 7/- to the deceased. PW 5, when later on in the evening, went to the house of the deceased, A-2 told PW 5 that the parents of the deceased had not paid the dowry amount. At that time PW-8 (milk vendor) came to the house of the deceased. A 2 also sent PW 8 away saying that the deceased was sleeping. After some time, PW 5 left the house of the deceased. At about midnight when PW-5 was sleeping in her house, A-3 and two others informed PW-5 that the deceased died.
5. On 27-12-1987 at about 9-30 a.m., PW-3, resident of that village, heard from people that a woman died by hanging herself in Rythupeta. PW-3 went to the house of A-1 and found the dead body of the deceased. PW-3 also found PWs. 1 and 2 there. Some people expressed that it was not a case of suicide but of murder. The witness also found signs of contusion around the neck of the deceased. The accused were making preparation to cremate the dead body. Then PWs. 1 to 3 decided to give a police report, PW-3 drafted the report and PWs. 1 and 2 signed it. PW-13, Head Constable of Nandigama Police Station received the report from PWs. 1 and 2 on 27-12-1987 at 11-00 a.m. It is, Ex. P-1. He registered it as Crime No. 180 of 1987 u/S. 174, Cr.P.C. and sent copies of the FIR to all concerned. PW-4 was informed about the death of the deceased at 1-00 p.m. on 27-12-1987. He immediately went to the house of the accused and saw the dead body of the deceased. P.W. 13, Head Constable, held an inquest over the dead body of the deceased on 27-12-1987 from 1-00 p.m. to 3-00 p.m. During the inquest, he examined PWs. 1 to 4. PW-10 is the inquest panch. Ex. P-10 is the inquest report. PW-14, C.I. of Police, took up investigation from 3-30 p.m. onwards on 27-12-87, seized Nylon Voni (MO-1) of the deceased and prepared a rough sketch (Ex. P 22). He also examined PWs. 6 and 7.
6. PW-11, Civil Assistant Surgeon, Government Hospital, Nandigama conducted autopsy over the dead body of the deceased at 4-00 p.m. on 27-12-1987. On examination, he opined that the deceased would appear to have died of internal haemorrhage and shock. He also noticed a ligature mark on the neck of the deceased. Ex. P-11 is the post-mortem certificate. After completion of the investigation, the charge-sheet was filed.
7. The prosecution in all examined PWs. 1 to 15 and marked Exs. P-1 to P-23. The plea of the accused was one of total denial. The lower Court after considering the entire evidence on record, convicted and sentenced the accused-appellants as stated supra. Against that, the present appeal is filed.
8. In this case, out of the '15' witnesses examined by the prosecution, PWs. 1, 2, 6, 7 and 12 were treated hostile by the prosecution. The remaining witnesses are PWs. 3, 4, 5, 8, 9, 10, 11, 13, 14 and 15.
9. PW-4 is the brother of the deceased. He deposed that the deceased was married to A-1 about one year prior to the date of occurrence. The deceased was living with A-1 in the house of PW-6 by the date of her death. He stated that A-1 and the deceased were living in one room, while A-2 and A-3 were living in two other rooms in the same house of PW-6 as tenants. At the time of marriage, he deposed, they agreed to give Rs. 20,000/- in cash and one-and-half acres of wet land as dowry to A-1. By the date of marriage, they could only give as advance only Rs. 10,000/- and the balance they agreed to pay later. After the marriage, the deceased went along with A-1 and was living with him. However, the deceased began, even within one month thereafter, complaining that the accused were harassing her to bring the balance of Rs. 10,000/-. In fact, A-1 sent away the deceased in the month of March, 1987 to their house asking her to come to his house only after the balance of Rs. 10,000/- was paid. Therefore, this witness, his brother one Satyanarayana and their father approached A-1 to A-3 and explained them their financial difficulty and requested time for paying the balance. At their request, the time limit was extended up to August, 1987. Before expiry of the extended time, they paid the balance of Rs. 10,000/- to A-1 in the presence of A-3 after selling away the mirchi crop and sent the deceased to A-1. Within two months thereafter, again A-1 to A-3 began harassing the deceased asking her to dispose of the 1 1/2 acres of land presented to her as 'pasupukumkuma' and bring the cash to them. The deceased sent word to them about the ill-treatment and harassment by the accused. At the instigation of A-2 and A-3, the deceased was complaining to them, A-1 was beating the deceased asking her to dispose of the 'Pasupukumkuma' land and got the money. The deceased did not agree for the same, as A-1 being a drunkard, and spent away Rs. 20,000/- received by him within one year. Since the deceased did not agree for the same, A-1 was beating her at the instigation of A-2 and A-3. Therefore, she came to their house at Jaggaiahpeta and informed PW-4 about the harassment. PW-4 persuaded A-1 not to insist upon the sale of the land and sent her to A-1's house. Again, the deceased came back complaining of ill-health. She informed PW-4 that the accused were not taking care of her health and were not giving any medicines. She also informed him that the accused might kill her if she did not agree to sell away the land. When PW-4 got the deceased checked up in the hospital, it was found that she was pregnant. The doctor advised that she should be given good food, tonics and medicines. Then PW-4 took her to A-1's house and left her there. PW-4 also informed his father and brothers about the state of health of the deceased and also of the ill-treatment and harassment on the deceased.
10. While so, on 27-12-1987 in the mid-night at about 2-00 a.m., one Venkateswara Rao came to PW-4 a in jeep and informed him that the deceased committed suicide by hanging herself. Then PW-4 along with his brother proceeded to the house of A-1 in Nandigama in the same jeep and reached there by about 8-00 a.m. They found the dead body of the deceased laid on a cot. They noticed injuries on her neck and back. The women folk also informed them that there was some bleeding from her anus. A-1 to A-3 were present at the dead body. A-1 to A-3 told them that the deceased committed suicide by hanging her self. Then they told the accused that there was no necessity for the deceased to commit suicide. Thereafter, a report was given to the police.
11. Though there was a searching cross-examination, nothing noteworthy could be elicited from PW-4 to discredit his evidence.
12. PW-4 is no other than the younger brother of the deceased and it is not expected of him to falsely implicate the accused. The suggestion given to him in the cross-examination that the deceased committed suicide is of no consequence since according to the doctor (PW-11), the death was homicide. Thus, it is clear that the evidence of PW-4 is quite natural and probable.
13. PW-5, a neighbour of the deceased in Nandigama, deposed that on the date of the incident, in the afternoon, the deceased came to her house and then she found the eyes of the deceased red and swollen. When she enquired, the deceased told her that A-1 to A-3 were ill-treating her because she did not get the dowry and did not agree for the sale of the pasupukumkuma land. She also told her that A-1 was beating her at the instigation of A-2 and A-3. She took Rs. 7/- as loan from PW-5 for purchasing kerosene as there was no kerosene in their house for cooking and went away. At about 7-00 p.m., PW-5 went to the house of the deceased, but she was informed that the deceased was sleeping.
14. The evidence of PW-5 corroborates the evidence of PW-4 regarding the demand of dowry and the harassment against the deceased by the accused to sell the land and bring the dowry amount.
15. PW-11 is a doctor. He conducted post-mortem examination over the dead body of the deceased on 27-12-1987 at 4-00 p.m. and issued Ex. P-11 post-mortem certificate. He found the following injuries on the deceased :-
"....... It was a female body lying on her back upper limbs extended and by the side of the body lower limbs extended half hair lomb. Public hair short black eyes closed. No congestion or conjuctival haemorrhages. Mouth closed, teeth lost molars not erupted. Tongue is pale. Pinkish discolouration over the front of abdomen present. Bluish discolouration on over the tips of finger. There are blood stains around the vulva. There is a ligature mark around the neck starting over the thyroid cartilage in the mid line size 1/2" in front extending to the right and back of the neck stopping short 1 1/2 below the angle of the mandible on the left side, size 3/4" over the back of the neck. On dissection of the ligature marks, no extravasation of blood, no contusion of the platysma muscle, no injury to the under lined muscle and blood vessels hence the ligature is post mortem in nature.
2. An abrasion below the left eye 1/2" x 1/2".
Internal Examination :-
Chest : no fracture of ribs; Hyoid bone intact. Tongue pale. Trachea mucus membranes pale. Lungs right crepitant on pressure. Cut section pale. Left Lung Crepitant. Cut section pale. Heart chambers empty. Abdomen; Liver brown in colour. Cut section pale. Spleen reddish brown cut section pale. Stomach contains 30 ml of coffee coloured fluid. Kidney right contused. There is perinepehric haemotoma on right side. Blood clots present. Haemotoma diffuse in nature. Left kidney cut section pale. Uterus enlarged up to umbilicus. Bluish in colour. Blood vessels prominent. Ovaries blue in colour on both sides. Uterine cavity contains blood of 1,500 ml contains female foetus of 24 week size. Placenta is easily removed. Certical orifice admitting one finger. Skull no fracture. Membrance pale. Brain cut section pale. p.m. concluded at 5-30 p.m."
The doctor opined that the deceased would appear to have died of internal haemorrhage and shock. He further stated that the corresponding external injury to internal haemorrhage and shock may be around the kidney and uterus by a blunt object. In the cross-examination, he stated that by a single fall kidney may not receive contusion unless it is severe fall with considerable force. According to the doctor (PW-11), the death is homicidal and not suicidal.
In this case, there is no direct evidence to link the accused with the offence of murder. The evidence of PWs. 4 and 5, which is relied upon by the Court below, is only circumstantial in nature and does not also establish an absolute and reliable link to connect the accused with the offence of murder. Therefore, we do not think it safe to hold A-1 guilty of the offence punishable u/S. 302, IPC.
16. By a reading of the evidence of PWs. 4 and 5, it is, however, evident that at the time of marriage, it was agreed to pay Rs. 20,000/- as dowry to A-1 and give 1 1/2 acres of land as pasupukumkum to the deceased. Out of the dowry amount, an amount of Rs. 10,000/- was paid to the accused at the time of marriage. Thereafter, the deceased was harassed for payment of the remaining dowry amount of Rs. 10,000/-. After some time, the remaining dowry amount was paid to the accused in August 1987. Even then, A-1 started harassing the deceased to sell the pasupukumkuma land of 1 1/2 acres and to bring him the amount. Thus, this harassment and force against the deceased by the accused for bringing the dowry amount and for selling the pasupukumkuma land and to get cash, squarely covers the definition of 'demand for dowry' rendering the offence 'a dowry death'.
17. Sri C. Padmanabha Reddy, the learned counsel for the appellants (accused) contended that actually, there is no demand of land as a part of the dowry at the time of marriage, even taking the evidence of PW-4 as it is. Even according to PW-4, the land was given to the deceased as 'pasupukumkuma'. Once the land is given as 'Pasupukumkuma', the same cannot be said to be dowry or part of the dowry. Therefore, the demand made by the accused for sale of the pasupukumkuma land, at most, amounts to cruelty u/S. 498-A, IPC, and not to demand for dowry. The learned counsel further contended that giving of land to the deceased as pasupukumkuma, does not amount to giving of land as dowry to one party to the marriage by another party to the marriage as can be seen from the definition of 'dowry' under S. 2 of the Dowry Prohibition Act, 1961. Therefore, the offence of dowry death punishable u/S. 304-B, IPC is not made out and at best the offence may fall u/S. 498-A, IPC.
18. The learned Public Prosecutor, on the other hand, contended that by a reading of the evidence of PW-4, it is evident that the land was also given as a part of the dowry, though it was agreed to be given as pasupukumkuma. According to S. 2 of the Dowry Prohibition Act, any property or valuable security given or agreed to be given either directly or indirectly is called dowry. Therefore, the offence falls u/S. 304-B, IPC, as the Court can draw the presumption as envisaged u/S. 113-A of the Evidence Act where the death is unnatural.
19. In view of the above contentions, the point to be considered is whether the land given was a part of the dowry or not.
20. Section 2 of the Dowry Prohibition Act, 1961 reads thus :
"2. Definition of "Dowry" :- In this Act, "dowry" means any property or valuable security given or agreed to be given either directly or indirectly -
(a) by one party to a marriage to the other party to the marriage; or
(b) by the parents of either party to a marriage or by any other persons, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.
xx xx xx xx xx xx xx xx"
By a reading of the above section, it is clear that any property or valuable security given or agreed to be given either directly or indirectly, amounts to 'dowry'. Further, the said property or valuable security must be given by one party to a marriage to the other party to the marriage; or by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person. It may be given at or before or any time after the marriage in connection with the marriage of the said parties. Thus, the definition is wide enough to include all sort of properties, valuable securities etc. given or agreed to be given directly or indirectly. Therefore, the amount of Rupees 20,000/- and 1 1/2 acres of land agreed to be given at the time of marriage is nothing but dowry. In this view of the matter we are unable to accept the contention of the learned counsel Sri C. Padmanabha Reddy. At the time of marriage, when the deal was settled, it was agreed that an amount of Rs. 20,000/- and 1 1/2 acres of land should be given as dowry. Merely because later the said land was agreed to be transferred in the name of the deceased as 'pasupukumkuma' by executing a deed, the said land cannot be said to be not a part of the dowry, as it was part and parcel of the original transaction of the dowry deal. In this case, as per the evidence of PW-11 (doctor), the death is homicidal. The dead body was found in the room of A-1. The death is unnatural. Once there is a demand of dowry and death occurs within a period of 7 years after the marriage, the presumption u/S. 113A of the Evidence Act has to be drawn and as per the said presumption, A-1 is liable for the offence punishable u/S. 304-B, IPC.
21. The learned counsel Sri C. Padmanabha Reddy strenuously contended that there is no charge u/S. 304-B, IPC and that even if it is assumed that there is evidence in respect of the said charge, the same was not put to the accused in the examination under S. 313, Cr.P.C. Without framing the charge and putting the evidence if any, in relation to the said charge to the accused, he cannot be convicted of the same.
22. It is a fact that there is no charge u/S. 304-B, IPC. But Charge Nos. 1 and 2 framed read :
"First, that A-1 of you being the husband of the deceased Vemuri Koteswaramma, A-2 of you being the sister of A-1 and A-3 of you being the husband of A-2 of you and brother-in-law of A-1 of you, coarced the deceased Koteswaramma to get the dowry amount and sell away the landed property of Ac. 1-50 cents of the deceased prior to her death i.e., on 26-12-1987 and also harassed her by propagating rumour that the deceased Koteswaramma was having illicit intimacy with one Alekam Koteswararao, son of Dasaradharamaiah, of Guttumukkala, and that you thereby committed an offence punishable u/S. 498-A of IPC and within my cognizance.
Secondly, that you A-1 to A-3 some time after 4-30 p.m. on or about the 26th day of December, 1987, in your house of Raithpet, Nandigama, in furtherance of the common intention of causing the death of Vemuri Koteswaramma, wife of A-1 of you, committed murder of the deceased Koteswaramma and thereby committed an offence punishable u/S. 302 read with 34, IPC and within my cognizance."
In the above charges, it is clearly mentioned that there was demand for dowry and also a demand to sell away the landed property of 1 1/2 acres, prior to the death of the deceased. It is also mentioned therein that the deceased was harassed by propagating a rumour that she was having illicit intimacy with one Alekam Koteswararao. The other charge refers to the death of the deceased at the hands of A1 & A3. Thus, the allegations made in the two charges are quit sufficient and they were also put to the accused in the examination under Section 313, Cr.P.C. Once there is harassment for the payment of dowry and unnatural death occurs within 7 years after the marriage, the presumption of dowry death is inherent. Merely because there is no separate charge under Section 304-B, I.P.C., it cannot be said that any prejudice is caused to the accused, since the facts noted in Charges 1 and 2 put together satisfy the ingredients of Sec. 304-B, I.P.C. It is also relevant here to mention that three ingredients are essential for establishing the offence punishable under Section 304-B, I.P.C. They are :
a) that there is a demand of dowry and harassment by the accused;
b) that the deceased died; and
c) that the death is under unnatural circumstances.
Once these three circumstances are proved, the offence under Section 304-B, I.P.C. is established. When once there is a demand for dowry and harassment against the deceased, and death occurs within 7 years after the marriage, the other things automatically follow due to the statutory presumption contemplated under Section 123-A of the Evidence Act. Therefore, we are unable to agree with the contention of the learned counsel for the appellants that in the absence of a charge under S. 304-B, I.P.C., the accused cannot be convicted thereunder.
23. The next contention of Sri C. Padamanabha Reddy, the learned counsel for the appellants is that when there is no charge under Section 304-B, I.P.C. and the charge is only under Section 302, I.P.C., there cannot be any conviction under Section 304-B, I.P.C. The offence under the Section 300, I.P.C., which is punishable under S. 302, I.P.C. is graver than the offence under S. 304-B, I.P.C. Therefore, the Court can convict a person for a lesser offence when there is a charge passed for a higher offence. In view of this we are unable to accept this contention also.
24. Regarding the conviction and sentence of A-1 and A-2 under Section 201, I.P.C., the evidence on record discloses that A-1 and the deceased were residing in one room in the house of PW-6 as tenants, whereas A-2 and A-3 were residing in two other rooms in the same house at tenants. Thus, A-2 and A-3 are not actually residing along with A-1. They were residing separately. Unless there is evidence on record to show that A-2 assisted A-1 in hanging the dead body of the deceased after her death and particularly when A-2 was living with her husband (A-3), it cannot be inferred that A-2 assisted A-1 in hanging the dead body of the deceased after her death. Therefore, we think it just and proper that A-2 cannot be held liable for the offence punishable under Section 201, I.P.C. Accordingly, the conviction and sentence imposed on A-2 under S. 201, I.P.C. are set aside.
25. Regarding the conviction of A-1 and A-2 under Section 498-A, the evidence of PW-4 discloses that A-1 was harassing the deceased demanding dowry and also for sale of the land. PW-4 deposed that the deceased told him that A-1 was harassing her at the instigation of A-2 and A-3. A-3 is already acquitted by the Court below. A-2 is the sister of A-1. Except the bald allegation of PW-4 against A-2 that A-2 was instigating A-1 to harass the deceased, there is no other evidence on record particularly to show the part played by A-2 in instigating A-1. Apart from it, A-2 and A-3 were living separately in the other portion of the house as tenant. Merely because A-2 is the sister of A-1, unless there is any cogent and convincing evidence to show that A-2 also harassed and illtreated the deceased, it cannot be held that A-2 is also liable for the offence under Section 498-A, I.P.C. Therefore, we set aside the conviction and sentence under Section 498-A, I.P.C. imposed on A-2. However, the conviction and sentence imposed on A-1 under Section 498 A, I.P.C. are confirmed.
26. The conviction and sentence of A-2 under Section 498-A are set aside. The conviction and sentence of A-1 under Section 302, I.P.C. are set aside and instead, he is convicted under Section 304-B, I.P.C. and sentenced to undergo RI for 7 years. The conviction and sentence of A-1 under Section 201, I.P.C. are confirmed while A-2 is acquitted of the said charge. Thus, A1 is acquitted of both the offences, for which she was convicted by the court below. All the sentences on A-1 are directed to run concurrently. The appeal is accordingly allowed in part.
27. Appeal partly allowed.