Andhra Pradesh High Court - Amravati
Additional Sessions Judge vs The State Of Uttarakhand on 18 July, 2023
THE HON'BLE SRI JUSTICE T. MALLIKARJUNA RAO
CRIMINAL APPEAL No.98 of 2016
JUDGMENT :
1) Accused, in Sessions Case No.138 of 2013 on the file of the learned VII Additional Sessions Judge, Ongole [for short, "the trial Court"], is the appellant herein. He was tried for the offence punishable under Section 304-B of Indian Penal Code, 1860 [for short, "I.P.C."].
2) Vide Judgment, dated 21.01.2016, the learned Sessions Judge convicted the Accused under Section 235(2) of Cr. P.C. Accordingly, the accused was sentenced to undergo Simple Imprisonment for Seven (7) Years for the offence punishable under Section 304-B I.P.C.
3) For the sake of convenience, the parties will be referred to as arrayed before the trial Court.
4) The facts, as culled out, from the evidence of prosecution witnesses, are as under:-
(a) P.W.1-Pokuri Chinnaiah, the father of the deceased-Kondamma, stated that the accused is the deceased's husband. He performed the deceased's marriage with the accused ten months before her death at Kanigiri Venkateswara Swami Temple. At the time of marriage, he presented Rs.50,000/- cash towards dowry and one gold ring ¾ savaras to the accused. The accused started harassing her physically by demanding money. The accused has all vices. At about noon, somebody 2 T.M.R., J Crl.A.No.98 of 2016 near his house informed P.W.1 that his daughter had died by jumping into the well. According to P.W.1, the accused is responsible for the death of his daughter. He gave Ex.P1 report to the Police. Police examined him and recorded his statement.
(b) According to P.W.12-A. Subba Raju, Sub-Inspector of Police, that on 16.09.2012 at about 16:00 hours, P.W.1 came to the Police Station and gave a written report. Based on the same, he registered the case in Crime No.130 of 2012 under Section 304-B I.P.C. of Kanigiri Police Station. Ex.P5 is the First Information Report.
(c) P.W.13-N. Ashok Kumar, Sub-Divisional Police Officer, Kandukur, stated that on 16.09.2012 at 6.00 P.M., he received a copy of F.I.R. in Crime No.130/2012 under Section 304-B I.P.C. of Kanigiri Police Station and he took up investigation. Later, he visited the scene of offence and noted the features at the scene. From there he went to Area Hospital, Kanigiri and found the dead body of the deceased in Mortuary due to late night; he has not proceeded with further investigation. On 16.09.2012 he gave requisition to Tahsildar to conduct inquest over the dead body of the deceased and on 17.09.2012 the Tahsildar, Kanigiri held inquest over the dead body of the deceased. He enquired about the accused, and found that he was absconded from the village. On 17.09.2012 at 8.00 A.M., he secured the presence of P.Ws.8 and 9, observed the scene of the offence and, photographed the scene of offence, later prepared a rough sketch of the scene of offence. Ex.P16 is the rough sketch.3
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(d) P.W.8-S. Malakondeswara Rao, Village Revenue Officer, stated that on 17.09.2012 at about 8.00 A.M. Police called him to the scene of offence near the well of the S.C. colony of Sankhavaram Village. D.S.P. observed the scene of offence in his presence, and the presence of P.W.9. The D.S.P. took the ½ litre water from the well in a plastic bottle and also took photographs. Police drafted the scene observation report under Ex.P9. On the same day, the Tahsildar called him, P.W.7 and P.W.8 and also blood relatives of the deceased to the Mortuary and conducted an inquest over the dead body of the deceased. They opined that the deceased committed suicide due to the harassment of the accused for money.
(e) According to P.W.9-Kalukuri Velugondaiah, Village Revenue Officer, on 17.09.2012, the D.S.P., Kandukur called him to come to S.C. Colony in Sankhavaram Village near Thottibavi, and the D.S.P. observed the scene of offence in his presence and the presence of P.W.8. Police took photos of the scene of offence under Ex.P10. Later, they went to Mortuary Room and conducted the inquest over the dead body of the deceased and opined that the death occurred due to harassment of the accused. Ex.P11 is the inquest report.
(f) P.W.11-T. Ajay Kumar, Mandal Executive Magistrate, stated that on 16.09.2012, he received a written requisition from SDPO, Kandukur, to conduct an inquest over the dead body of the deceased by name Chadalawada Kondamma, 19 years, at the area Hospital, Kanigiri. On 4 T.M.R., J Crl.A.No.98 of 2016 17.09.2012 at about 9.00 A.M., he, along with P.Ws.8 and 9, went to the Area Hospital, and in the presence of blood relatives of the deceased, he held an inquest over the dead body of the deceased and opined that the deceased committed suicide by jumping into well, due to harassment by the accused for getting additional dowry.
(g) P.W.10-Dr. S. Subba Reddy, Civil Assistant Surgeon, stated that on 17.09.2012 at about 3.20 P.M., he, along with L.W.15, conducted a post- mortem over the dead body of the deceased by name Chadalawada Kondamma and issued Ex.P12-Post Mortem Certificate and opined that the deceased would appear to have died of Asphixia as a result of drowning. Ex.P14 is the RFSL report.
(h) According to P.W.13-Sub-Divisional Police Officer, that on 28.09.2012, he arrested the accused in his house at Sankhavaram Village. After receipt of Post Mortem examination certificate, on 13.10.2012, he forwarded the material objects to RFSL, Guntur, along with his requisition under Ex.P17 and letter of advice under Ex.P18.
5) After collecting all the material, P.W.13 filed the Charge Sheet. The Judicial Magistrate of First Class, Kanigiri, has taken on file as P.R.C. No.1 of 2013. On appearance, furnished the copies of the documents to the accused under Section 207 Cr.P.C. and committed to the Sessions Court. Based on the material available on record, a Charge under Section 304-B I.P.C. has been framed against the accused, read over and explained to the accused. He pleaded not guilty and claimed for trial. 5
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6) To prove the case, the Prosecution examined P.Ws.1 to 13 and got marked Exs.P1 to P19. On behalf of the accused, no oral evidence is adduced, but Exs.D1 to D5 documents was marked. After completing the prosecution evidence, learned Sessions Judge examined the accused under Section 313 Cr.P.C. concerning the incriminating circumstances appearing against him in the evidence of prosecution witnesses, which he denied. The defence was of total denial and false implication.
7) After considering the necessary material available on record, the learned Sessions Judge found the guilt of the accused/appellant and convicted him as stated supra. Aggrieved by which, the present appeal has been preferred.
8) Heard Sri Madhavarao Nalluri, learned counsel for the appellant and also the Additional Public Prosecutor, for the State, at length.
9) It is contended by the learned counsel for the appellant that there is no legally acceptable evidence in order to sustain the charge, and there is no valid evidence much less trustworthy to sustain the charge in order to record a finding of conviction against the appellant. He further contended that the trial Court erred in placing reliance on the highly interesting evidence of P.Ws.1 to 4 and also erred in understanding the evidence from a proper perspective, as there is no proper evidence of cruelty and harassment on the side of the appellant. He further contended that the trial Court failed to observe the fact that the deceased, just prior to her death, visited her father, so conflicts, if any, between them might have arisen, 6 T.M.R., J Crl.A.No.98 of 2016 which could have led her to take a decision of suicide. The trial Court ought to have noticed that there are no traces of cruelty on bodily injury, burning etc., prior to her death, and the death of the deceased is by suicide and not as a result of any direct physical acts of the appellant or his relatives and prays to allow the appeal.
10) On the other hand, the learned Additional Public Prosecutor for the State contended that the trial Court had convicted the appellant after considering the evidence available on record, as there is no error or irregularity in the Sessions Court judgment. She further contended that the Prosecution had proved the ingredients punishable under Section 304-B of I.P.C. and prayed to dismiss the appeal.
11) Now, the point that arose for determination is:
Whether the Prosecution can establish and prove the circumstances relied on by it, and, if so, whether they are sufficient to connect the accused for the offence punishable under Section 304-B of I.P.C.?
POINT:
12) Before considering the prosecution case as well as the defence pleaded, it is desirable to extract the relevant provisions of Section 304-B which relates to dowry death:
"304-B. 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 any relative of her husband for, or in 7 T.M.R., J Crl.A.No.98 of 2016 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 purpose 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".
13) In order to convict an accused for the offence punishable under Section 304-B I.P.C., the following essentials must be satisfied:
(i) the death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances;
(ii) such death must have occurred within seven years of her marriage;
(iii) soon before her death, the woman must have been subjected to cruelty or harassment by her husband or any relatives of her husband;
(iv) such cruelty or harassment must be for, or in connection with, demand for dowry.
When the above ingredients are established by reliable and acceptable evidence, such death shall be called dowry death and such husband or his relatives shall be deemed to have caused her death. If the abovementioned ingredients are attracted in view of the special provision, the Court shall presume, and it shall record such fact as proved unless and until it is disproved by the accused.
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14) In Charan Singh @ Charanjit Singh vs The State of Uttarakhand1, the Hon'ble Apex Court, held as under:-
"13. A conjoint reading of Section 304-B I.P.C. and Section 113-B of the Indian Evidence Act with reference to the presumption raised was discussed in para 32 of the judgment in Bajinath vs. State of M.P.2, which is extracted below:-
"32. This Court, while often dwelling on the scope and purport of Section 304B of the Code and Section 113-B of the Act, has propounded that the presumption is contingent on the fact that the prosecution first spell out the ingredients of the offence of Section 304B as in Shindo vs State of Punjab [Shindo v. State of Punjab, (2011) 11 SCC 517 : (2011) 3 S.C.C. (Cri) 394] and echoed in Rajeev Kumar Vs. State of Haryana [Rajeev Kumar v. State of Haryana, (2013) 16 SCC 640: (2014) 6 S.C.C. (Cri) 346]. In the latter pronouncement, this Court propounded that one of the essential ingredients of dowry death under Section 304-B of the Code is that the accused must have subjected the woman to cruelty in connection with the demand for dowry soon before her death and that this ingredient has to be proved by the Prosecution beyond reasonable doubt and only then the Court will presume that the accused has committed the offence of dowry death under Section 113-B of the Act.
It referred to, with approval, the earlier decision of this Court in K. Prema S. Rao Vs. Yadla Srinivasa Rao [K. Prema S. Rao v. Yadla Srinivasa Rao, (2003) 1 SCC 217: 2003 S.C.C. (Cri) 271] to the effect that to attract the provision of Section 304-B of the Code, one of the main ingredients of the offence which is required to be established is that "soon before her death" she was subjected to cruelty and harassment "in connection with the demand for dowry". 1 2023 LiveLaw SC 341 2 (2017) 1 SCC 101 9 T.M.R., J Crl.A.No.98 of 2016
15) Learned counsel for the appellant strongly contended that it is not the prosecution case at all that the deceased was subjected to cruelty or harassment on account of the demand of dowry soon before the death or otherwise. To appreciate the said submission made, this Court is inclined to refer the evidence of P.Ws.1 to 4, who supported the case of the Prosecution attributing the harassment caused to the victim by the accused.
16) P.W.1 is the husband of P.W.2 and the deceased is their younger daughter. It is undisputed that the accused is the husband of the deceased and their marriage took place ten months before her death. The P.W.1's evidence shows that after the marriage, the accused looked after the deceased properly for some time. However, later on, he began to physically harass her making demands for money. P.W.1 testified that the accused had various vices. He mortgaged the gold studs of the deceased giving her Rs.5000/-, which she then handed over to the accused. The accused looked after the deceased properly for ten days and again resumed the physical and mental harassment. Three years prior to her death, the deceased visited to his house and demanded money. But he expressed his inability to meet her demands. It is important to note that P.W.1's evidence does not indicate that the deceased informed him of the accused's demanded for money. Instead, the evidence suggests that the deceased herself sought money from PW.1 but not the accused.
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17) It is not the PW.1's evidence that the accused made demands for money in connection with the dowry. Even if, it is assumed that the evidence of P.W.1 is to be correct, such demand was made by the accused being habituated to vices.
18) In a decision reported in Vipin Jaiswal vs State of A.P.3, the Hon'ble Supreme Court held that demanding in connection with the marriage would be dowry demand and subsequently for purchase of any computer to start business, it cannot be said that it would amount to dowry demand.
19) The evidence of P.W.1 does not remotely suggest that such alleged demand for money is made by the accused in connection with the dowry.
20) The evidence of P.W.2-Pokuri Chennamma, is also in the same lines of the P.W.1's evidence. According to her testimony, the accused began harassing the deceased due to his habit of drinking and demanding money. About ten days before the death of the deceased, she came to PW.2 and asked for Rs.5,000/-, which she then gave to the accused. Again, on the day of her death, the deceased visited P.W.2 at 10.00 A.M. And this time asked for Rs.2,000/-, PW.2 expressed her inability to pay that amount and that the deceased left while crying. Similar to PW.1's testimony, PW.2 also does not indicate that her daughter (deceased) informed her that the accused demanded money. Instead, it suggests that the deceased herself made the request for money, not the accused. Both P.Ws.1 and 2 also depose that the accused had history of demanding money through his wife 3 2013(1) A.L.D. (Crl) 967 (S.C.) 11 T.M.R., J Crl.A.No.98 of 2016 due to his drinking habit. However, their evidence does not suggest that the accused made such demands through his wife for amounts payable in connection with the dowry.
21) P.W.3-Pokuri Pitchaiah, the brother of the deceased, also stated in his evidence that the deceased came to his parent's house while he was at his bunk. The deceased again demanded his parents for Rs.2000/-, but his parents pleaded their inability to give the amount.
22) P.W.4-P. Gopi, another brother of the deceased, also stated in his evidence that after ten days again at 10.00 A.M. his sister/deceased came to his parents house, demanding Rs.5000/- as the accused demanded her. P.Ws.1 to 3 did not say such version before the Court. They only stated that the deceased only made demand for money. Even the evidence of P.W.4 does not disclose that the said alleged demand through the deceased was made in connection with the dowry. P.W.4 evidence shows that such demands were made by the accused through his wife as the accused was habituated to liquor.
23) P.Ws.5, 6 and 7 did not support the case of the Prosecution. It is the case of the Prosecution that the deceased committed suicide by jumping into well. No evidence is placed before the Court to show that the death was caused due to jump into the well. It is the case of the accused that the deceased was suffering from epilepsy. In support of the said contention, he relied on the evidence of P.W.12-Sub Inspector of Police, who stated in his evidence that he registered a case in Crime No.99 of 2012 under Section 12 T.M.R., J Crl.A.No.98 of 2016 498-A I.P.C. on being a complaint referred by the Court. According to his evidence, the deceased and her parents and his brother stated before him that the deceased had epilepsy. On behalf of the Prosecution, none was examined to show that the deceased committed suicide by jumping into the well. It is not in dispute that the dead body of the deceased found in the well.
24) It is elicited from the evidence of P.W.9-VRO, who prepared the observation report that the well at the scene of offence is levelled with the ground, there are bubble trees around the well and he does not know whether the scene of offence is being used for the calls of nature. It is the defence submission that the deceased might have fallen into the well due to epilepsy when she went there to attend calls of nature. Though the death of the deceased within seven years of marriage is not disputed, there is no evidence on record to indicate that soon before her death the deceased was subjected to cruelty and harassment by her husband in connection with demand for dowry. In the said facts of the case, the trial Court is not justified in convicting the accused for the offence punishable under Section 304-B I.P.C.
25) The evidence led by the Prosecution does not fulfil the prerequisites to invoke under Section 304-B I.P.C. and Section 113-B of the Indian Evidence Act. The 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 304-B I.P.C. The cause of death of the 13 T.M.R., J Crl.A.No.98 of 2016 deceased occurred due to her jumping into the well or she accidentally fell into the well due to epilepsy is not established. But the evidence of P.Ws.1 to 4 show that the deceased was subjected to cruelty by the accused being habituated to liquor. As seen from the record, no charge was framed against the accused under section 498(A) of IPC.
26) In a decision reported in Smt. Shanti and another vs. State of Haryana4, the Hon'ble apex Court held that:
"6. xxxxxx Further, it must also be borne in mind that a person charged and acquitted under Section 304-B can be convicted under Section 498-A without charge being there, if such a case is made out."
27) In a decision reported in Godugula Adellu vs. The State of Andhra Pradesh rep. by Public Prosecutor, High Court of A.P., Hyderabad5, the composite High Court relied on relevant portion of the judgment in Dalbir Singh vs. State of Uttar Pradesh6, wherein the Hon'ble Apex Court, while elaborately dealing with Sections 302, 304-B and 498-A I.P.C., which is as under:
"....In view of Section 464 Cr.P.C. it is possible for the appellate or revisional Court to convict an accused for an offence for which no charge was framed unless the Court is of the opinion that a failure of justice would in fact occasion. In order to judge whether a failure of justice has been occasioned, it will be relevant to examine whether the accused was aware of the basic ingredients of the offence for which he is being convicted and whether the main facts sought to be established against him 4 (1991) 1 SCC 371 5 2008 1 A.L.T. (Cri) 22 6 (2004) 5 SCC 334 14 T.M.R., J Crl.A.No.98 of 2016 were explained to him clearly and whether he got a fair chance to defend himself."
28) In Godugula Adellu's case [4 supra], this Court observed as under:
"39. In such circumstances, it was pointed out by the apex Court, in various terms, that in case of the offence under Section 304-B I.P.C., it is imperative for the Court to invoke the presumptive jurisdiction, as envisaged under Section 113-B of the Indian Evidence Act. The Hon'ble Apex Court, at paragraphs Nos.15 and 16 of the judgment in Shamnsaheb M. Multtani vs State of Karnataka7, held thus:
"15. Section 222(1) of the Code deals with a case "when a person is charged with an offence consisting of several particulars". The section permits the Court to convict the accused "of the minor offence, though he was not charged with it". Sub-section (2) deals with a similar, but slightly different situation.
"222. (2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it."
29) In a decision reported in Dinesh Seth vs. State of N.C.T. Delhi8, the Hon'ble Apex Court held thus:
"26. The ingredient of cruelty is common to Sections 304-B and 498-A I.P.C., but the width and scope of the two sections are different, inasmuch as Section 304-B deals with cases of death as a result of cruelty or harassment within seven years of marriage, Section 498-A has a wider spectrum, and it covers all cases in which the wife is subjected to cruelty by her husband or relative of the husband which may result in death by way of suicide or cause grave injury or danger to life, limb or health (whether mental or physical) or even harassment caused with a view to 7 (2001) 2 SCC 577 8 (2008) 14 S.C.C. 94 15 T.M.R., J Crl.A.No.98 of 2016 coerce the woman or any person related to her to meet unlawful demand for property or valuable security.
27. In order to bring home a charge under Section 304-B I.P.C., the Prosecution is required to establish that the death of the woman has been caused by burns or bodily injury or otherwise than under normal circumstances within seven years of her marriage and soon before her death, the woman is subjected to cruelty or harassment by her husband or his relative. However, for the purpose of conviction under Section 498-A I.P.C., it is sufficient to prove that the woman was subjected to cruelty, as elucidated in the Explanation appearing below substantive part of the section, by her husband or his relative.
xxx
31. The judgments on which Shri Tulsi has placed reliance do not support the cause of the appellant. Rather, the judgment in State of W.B. v. Orilal Jaiswal [(1994) 1 S.C.C. 73: 1994 S.C.C. (Cri) 107] supports the conclusion that an offence under Section 498-A I.P.C. is made out if the woman is subjected to physical assault, humiliation, harassment and mental torture. In Satpal v. State of Haryana [(1998) 5 SCC 687: 1998 S.C.C. (Cri) 1372], this Court held that even though the prosecution evidence was not sufficient to establish charge under Sections 304-B or 306 IPC, conviction under Section 498-A I.P.C. can be upheld because the deceased was treated with cruelty by the appellant."
30) In light of the settled legal position, this Court views that even though evidence was not sufficient to establish the charge under Section 304-B I.P.C. the accused can be convicted for the offence under section 498(A) of IPC, despite non framing of the charge under section 498(A) of IPC, when the prosecution is able to establish the guilt of the accused for the offence punishable under Section 498-A I.P.C. After careful reading of the material 16 T.M.R., J Crl.A.No.98 of 2016 on record, this Court finds that the Prosecution established the guilt of the accused in light of the discussion made in the preceding paragraphs.
31) For the foregoing discussion, particularly having regard to the view expressed by this Court that the offence under Section 498-A I.P.C. has been established by the Prosecution, this Court is of the view that it appropriate to modify the conviction and sentence, imposed by the trial Court under Section 304-B I.P.C., against the accused. This Court is of the opinion that in view of the material on record, the conviction under Section 498-A I.P.C. can safely be recorded and the same would not result in failure of justice in any manner. A perusal of the impugned judgment shows that the appellant/accused has undergone nearly 17 months remand from 29.09.2012 to 05.01.2013 and from 25.09.2014 to 21.01.2016 would meet the ends of justice.
32) In the result, the Criminal Appeal is allowed in part, the conviction recorded for the offence under Section 304-B I.P.C., in S.C.No.138 of 2013 dated 21.01.2016, on the file of learned VII Additional Sessions Judge, Ongole, is set aside, and he is acquitted for the said offence, but however, the appellant is convicted for the offence under Section 498-A I.P.C., and he is sentenced to the period already undergone.
Consequently, miscellaneous petitions, if any, pending shall stand closed.
___________________________________ JUSTICE T. MALLIKARJUNA RAO Date:18.07.2023 MS 17 T.M.R., J Crl.A.No.98 of 2016 THE HON'BLE SRI JUSTICE T. MALLIKARJUNA RAO CRIMINAL APPEAL NO.98 OF 2016 DATE: 18.07.2023 MS