Andhra Pradesh High Court - Amravati
Kotakonda Dharmaiah, vs The State Of Ap Rep By Its Pp Hyd., on 13 October, 2023
HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
****
CRIMINAL APPEAL No.989 OF 2010
Between:
Kotakonda Dharmaiah,
S/o.K.Subramanyam,
Caste:Vodde Boya, Aged 26 years,
R/o.Lakshmipuram, Jakkalavaripalli Village,
Chandragiri Mandal,
Chittoor District. .... Appellant/Accused (A-1)
Versus
The State of A.P.,
Rep. by its Public Prosecutor,
High Court of A.P.,
Amaravathi. .... Respondent/Respondent.
DATE OF JUDGMENT PRONOUNCED : 13.10.2023
SUBMITTED FOR APPROVAL:
HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
1. Whether Reporters of Local Newspapers
may be allowed to see the judgment? Yes/No
2. Whether the copy of judgment may be
marked to Law Reporters/Journals? Yes/No
2. Whether His Lordship wishes to see
The fair copy of the judgment? Yes/No
,,
______________________________
A.V.RAVINDRA BABU, J
2
AVRB,J
Crl.A. No.989/2010
* HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
+ CRIMINAL APPEAL No.989 OF 2010
% 13.10.2023
# Between:
Kotakonda Dharmaiah,
S/o.K.Subramanyam,
Caste:Vodde Boya, Aged 26 years,
R/o.Lakshmipuram, Jakkalavaripalli Village,
Chandragiri Mandal,
Chittoor District. .... Appellant/Accused (A-1)
Versus
The State of A.P.,
Rep. by its Public Prosecutor,
High Court of A.P.,
Amaravathi. .... Respondent/Respondent.
! Counsel for the Appellant : Sri T.D. Phani Kumar,
Rep. Harinath Reddy
Soma.
^ Counsel for the Respondent : Sri N. Sravan Kumar,
Learned Special Asst.
Rep. Learned Public
Prosecutor.
> Head Note:
? Cases referred:
1. (2015) 3 SCC 724
2. (2018) 10 SCC 593
3. (2004) 4 SCC 470 = 2004 (1) ALD (Crl.) 642 (SC)
This Court made the following:
3
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Crl.A. No.989/2010
HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
CRIMINAL APPEAL No.989 OF 2010
JUDGMENT:
The judgment, dated 06.08.2010, in Sessions Case No.25 of 2008 on the file of the Court of Special Sessions Judge-cum-IV Additional District and Sessions Judge, Chittoor at Tirupati (for short, „the learned Additional Sessions Judge‟), is under challenge in the present Criminal Appeal filed by the appellant, who was the unsuccessful accused No.1 in the aforesaid Sessions Case.
2. The appellant herein (A-1) faced trial under Section 304-B of the Indian Penal Code, 1860 (for short, „the IPC‟) before the learned Additional Sessions Judge and he was found guilty of the charge under Section 304-B IPC as such he was convicted under Section 235(2) Cr.P.C and was sentenced to undergo Rigorous Imprisonment for 7 years.
3. The parties to this Criminal Appeal will hereinafter be referred to as described before the trial Court, for the sake of convenience.
4. The Sessions Case No.25 of 2008 arose out of the committal order in Preliminary Registration Case (PRC) No.53 of 2007 on the 4 AVRB,J Crl.A. No.989/2010 file of the Court of III Additional Judicial Magistrate of First Class, Tirupati (for short, „the learned Magistrate‟) pertaining to Crime No.6 of 2007 of Chandragiri Police Station, Chittoor District for the offence under Section 304-B IPC.
5. The Sub-Divisional Police Officer (SDPO), Tirupati (LW.23) filed charge sheet in Crime No.6 of 2007 of Chandragiri Police Station alleging the offence under Section 304-B IPC against the accused Nos.1 to 3. The case of the prosecution, in brief, as set out in the charge sheet, is as follows:
(i) The marriage of K. Varalakshmi (hereinafter referred to as „the deceased‟) was celebrated with one K. Dharmaiah (A-1) 6 years prior to the incident, as per the Hindu rites and customs. At that time, parents of the deceased gave cash of Rs.30,000/- and 8 sovereigns of gold ornaments, apart from the household articles.
After marriage, the deceased joined with the company of accused and lived happily for 10 days. Later, all the accused started harassing the deceased for want of additional articles and Ugadi Sangyam. The parents of the deceased failed to comply their demand. On that count, accused continuously harassed the deceased both physically and mentally. In this connection, Dalavayi Mani Kumar @ Mani (LW.6) and Pediri Krishna Reddy 5 AVRB,J Crl.A. No.989/2010 (LW.7) held mediation many times but in vain. The sister-in-law of the deceased viz., Rekha also threatened the deceased for want of additional dowry and instigated accused No.1 to demand additional amounts from the deceased. Deceased informed her parents about the harassment made by all the accused. Ultimately, unable to bear with the harassment, the deceased, on 08.01.2007, committed suicide by consuming pesticide poison. Having come to know about the incident, Valipi Nagamma (LW.1), mother of the deceased, presented a report to the Police.
(ii) On the strength of the report made by the mother of deceased, the Assistant Sub-Inspector of Police, Chandragiri Police Station (LW.22), registered the report as a case in Crime No.6 of 2007 for the offence under Section 304-B IPC and submitted copies of FIR to all the concerned. The SDPO, Tirupati (LW.23), during the course of investigation, requisitioned the Mandal Executive Magistrate, Chandragiri (LW.21) to conduct inquest over the dead body of the deceased. Accordingly, LW.21 conducted inquest over the dead body of the deceased in the presence of panchayatdars and blood relatives of the deceased. He also examined and recorded the statements of the witnesses i.e., Valipi Nagamma (LW.1), Devalla Chinnaswamy (LW.2), Valipi Ravi (LW.3), Kolla Chandra Sekhar (LW.4) and Kolla Amaravathi (LW.5). 6
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(iii) During the course of investigation, the SDPO, Tirupati visited the scene of offence, examined the witnesses and prepared the scene observation mahazar on 09.06.2007 at 05:30 p.m., duly attested by the mediators. He drew rough sketch of the scene and got photographed the same. He forwarded the dead body to the Professor, Forensic Medicine, Sri Venkateswara Medical College (SVMC), Tirupati for conducting post-mortem examination. Dr. K. Bhaskar Reddy (LW.20), Professor, Forensic Medicine, SVMC, Tirupati conducted post-mortem examination over the dead body of the deceased and opined that the deceased died as a consequence of Organophosphate, an insecticide poison. During investigation, the SDPO, Tirupati arrested the accused Nos.1 to 3 at 11:45 a.m. at Chandragiri and forwarded them to the Court on 14.01.2007 for remand. The Investigating Officer arrested accused No.4, who was a juvenile, on 14.01.2007 and forwarded her to the learned III Additional District Munsif Magistrate, Tirupati and later she was forwarded to the Court of VIII Metropolitan Magistrate- cum-Juvenile Magistrate, Hyderabad for remand (for short, „the Juvenile Magistrate‟). The SDPO, Tirupati forwarded the Material Objects to the Director, RFSL, Tirupati for examination. The Scientific Officer, who examined the MOs.1 to 4, gave his report and according to him, Organophosphate and insecticide poison is 7 AVRB,J Crl.A. No.989/2010 found in Item Nos.1, 2 and 3 but not in Item No.4 of the MOs. The Investigation disclosed that accused Nos.1 to 3 and juvenile (A-4) harassed the deceased both physically and mentally for want of additional amounts and created the circumstances which compelled the deceased to commit suicide. Hence, the accused Nos.1 to 4 are liable for punishment under Section 304-B IPC.
(iv) A separate charge sheet has been filed against the juvenile (A-4) before the Juvenile Magistrate at Hyderabad. Hence, A-1 to A-3 are liable for the charge.
6. The learned Magistrate, Tirupati took cognizance of the case for the offence under Section 304-B IPC and numbered it as PRC No.53 of 2007. After compliance of the necessary formalities under Section 207 of the Code of Criminal Procedure, 1973 (for short, „the Cr.P.C‟) and exercising the powers under Section 209 Cr.P.C, the learned Magistrate committed PRC No.53 of 2007 to the Court of Session. Thereafter, it was numbered as S.C. No.25 of 2008 and was made over to the Court of learned Additional Sessions Judge, for disposal in accordance with law.
7. After appearance of the accused Nos.1 to 3 before the learned Additional Sessions Judge and after following the procedure under Section 228 Cr.P.C, a charge under Section 304- 8 AVRB,J Crl.A. No.989/2010 B IPC was framed against accused Nos.1 to 3 and explained to them in Telugu, for which they pleaded not guilty and claimed to be tried.
8. In order to establish the guilt against the accused, the prosecution before the learned Additional Sessions Judge, examined PWs.1 to PW.18 and got marked Exs.P-1 to P-17 and MOs.1 to 4 and the defence got marked Exs.D-1 and D-2 were marked.
9. After closure of the evidence of the prosecution, accused Nos.1 to 3 were examined under Section 313 Cr.P.C with reference to the incriminating circumstances appearing in the evidence let in by the prosecution, for which they denied the incriminating circumstances and stated that they did not commit any offence and they have no defence witnesses.
10. The learned Additional Sessions Judge, on hearing both sides and on considering the oral and documentary evidence on record, found accused No.2 and A-3, father and mother of accused No.1, not guilty of the charge under Section 304-B IPC and acquitted them under Section 235(1) Cr.P.C. The learned Additional Sessions Judge found accused No.1, husband of the 9 AVRB,J Crl.A. No.989/2010 deceased, guilty of the charge under Section 304-B IPC, convicted him under Section 235(2) Cr.P.C. and after questioning him about the quantum of sentence, sentenced him as above.
11. Felt aggrieved of the same, the un-successful accused No.1 filed the present Appeal.
12. At the outset, this Court would like to make it clear that as against the findings of the learned Additional Sessions Judge in acquitting Accused Nos.2 and A-3 of the charge under Section 304-B IPC, the prosecution did not file any Appeal. So, the scope of this Appeal is confined to the appellant/Accused No.1.
13. In the light of the contentions advanced by learned counsel for the appellant and learned counsel for the respondent in deciding this Appeal, the points that arise for determination are as follows:
1) Whether prosecution before the learned Additional Sessions Judge proved the fact that the death of the deceased viz., K. Varalakshmi was other than under normal circumstances and un-natural within a period of 7 years from the date of her marriage?10
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2) Whether the prosecution proved that accused No.1, soon before the death of deceased, subjected her to cruelty or harassment in connection with any demand for dowry?
3) Whether the prosecution before the trial Court proved the charge under Section 304-B IPC against accused No.1 beyond reasonable doubt?
4) Whether judgment is sustainable under law and facts and whether there are any grounds to interfere with the impugned judgment?
POINT Nos.1 to 4:
14. Before going to deal with the contentions of both sides, this Court would like to further make a mention here that appellant/ accused No.1 got the sentence against him suspended at the time of admission of the Appeal on 24.08.2010 vide order in Crl.A.M.P. No.1507 of 2010. Subsequently, when he was not pursing the Appeal and there was no representation on his behalf, this Court after giving him several opportunities, revoked the order, dated 24.08.2010, on 26.07.2023 and issued the Non Bailable Warrant (NBW) against the accused with a direction to the Police to execute NBW and produce him before the learned Additional Sessions 11 AVRB,J Crl.A. No.989/2010 Judge and on such production, conviction warrant shall be entrusted to carry out the sentence pending disposal of the Appeal. In pursuance of the NBW issued against accused No.1, Police arrested and produced him before the learned Additional Sessions Judge, who entrusted the conviction warrant. So, as of now, the appellant/accused No.1 is in the Central Prison, Kadapa undergoing imprisonment pending disposal of the Appeal.
15. Sri T.D. Phani Kumar, learned counsel, representing Sri Harinath Reddy Soma, learned counsel for the appellant, would contend that the prosecution did not prove the date of marriage of the deceased with the accused No.1. There is no dispute about the marriage of the deceased with accused No.1. Evidence is missing as to the date of their marriage. Accused set forth a contention that the marriage took place beyond 7 years prior to the death of the deceased. So, the prosecution failed to prove the date of marriage and further failed to prove that the death of the deceased was within the period of 7 years of her marriage. None of the prosecution witnesses spoke about the date of marriage. The case of the prosecution that the marriage took place 6 years prior to the death is nothing but vague. So, the prosecution failed to establish one of the essential ingredients of Section 304-B IPC. The defence 12 AVRB,J Crl.A. No.989/2010 of the accused is that the deceased was suffering with severe stomach pain and ulcers and unable to bear with the same, she died. Though, there was no medical proof with regard to the ailment of the deceased, but some of the prosecution witnesses, who did not support the case of the prosecution, in their cross- examination by the learned defence counsel admitted about this. So, as the prosecution witnesses themselves admitted about the ill-health of the deceased, accused need not file any documentary proof etc. PW.1, brother of the deceased, was not a witness to the so called harassment meted out by the deceased. So, PW.1 is nothing but a hearsay witness. According to Ex.P-14, the report lodged by mother of the deceased, one Krishna Reddy also involved in mediating the issue but the prosecution did not examine the said Krishna Reddy. The prosecution, for obvious reasons, did not examine the mother of deceased. Parents of the deceased are the proper persons to speak about the so called harassment. Even the Investigating Officer did not cite father of the deceased as a witness. Evidence is lacking that soon before death the deceased was subjected to cruelty or harassment. Even the evidence did not disclose any offence under Section 498-A IPC. The case against juvenile (A-4) was tried before the Juvenile Magistrate at Hyderabad where PW.8 herein totally introduced a contrary 13 AVRB,J Crl.A. No.989/2010 version and his evidence in the relevant Calendar Case No.51 of 2008 was confronted and the evidence of PW.8 is not believable. Evidence of PW.1 and PW.2 is interested in nature. The Evidence of PW.7, the junior paternal uncle of the deceased, is also interested in nature. When there was no direct evidence to speak about the harassment, the learned Additional Sessions Judge based on the hearsay evidence and interested testimony erred in convicting the accused No.1. Learned counsel in support of his contention would rely upon a decision of the Apex Court in Sher Singh alias Partapa v. State of Haryana1. With the above contentions, learned counsel submits that the appellant/accused No.1 is entitled for benefit of doubt.
16. Sri N. Sravan Kumar, learned Special Assistant, representing learned Public Prosecutor, would contend that there was consistent evidence before the learned Additional Sessions Judge to prove that the death of the deceased was within 7 years from the date of her marriage. Though there was no date spoken to by the prosecution witnesses but they categorically deposed that 6 years prior to the death, her marriage was performed. The record reveals that prosecution could not examine Valipi Nagamma 1 (2015) 3 SCC 724 14 AVRB,J Crl.A. No.989/2010 (LW.1), mother of the deceased, because she died. The learned Additional Sessions Judge could not make a mention about her death in the judgment. The Investigating Officer though did not examine father of the deceased, for any reason, but it is not fatal to the case of prosecution. The report under Ex.P-14 could be marked through the Investigating Officer only. PW.1 is no other than the brother of deceased. PW.2 is the sister of the deceased. They supported the case of prosecution. Apart from that, PW.7 and PW.8 also supported the case of prosecution. Prosecution proved the mediation conducted by the mediators to counsel the accused not to demand any dowry. Though some of the witnesses turned hostile to the case of prosecution but it cannot be a ground to acquit the accused No.1. The defence of the accused before the trial Court is nothing but evasive. Even according to the answers elicited by accused No.1 from the prosecution witnesses, accused No.1 and the deceased used to reside separately in a house by separating themselves from accused Nos.2 and 3. The death of the deceased was during the night of 08.01.2007 in the house of accused No.1, which was other than under normal circumstances. Except a vague plea that the deceased was suffering with stomach pain and ulcers, no piece of paper is filed by the accused to probabilize such a theory. The cause of death was not in dispute. 15
AVRB,J Crl.A. No.989/2010 Some of the prosecution witnesses by turning them to hostile, deposed about the ill-health of the deceased which is not at all believable. The prosecution discharged its burden to prove that the death of the deceased was un-natural i.e., otherwise than under normal circumstances and it was happened within 7 years from the date of her marriage and further there was satisfactory evidence to show the harassment meted out to the deceased and the accused failed to prove contrary. The learned Additional Sessions Judge rightly analyzed the evidence on record and believed the case of prosecution as such there are no grounds to interfere with the judgment of the trial Court. In support of his contention, he would rely upon a decision of the Apex Court in Jagjit Singh v. State of Punjab2.
17. PW.1 before the trial Court is no other than the brother of the deceased. His evidence is that the deceased K. Varalakshmi is his sister. Accused No.1 is the husband of her deceased sister. Accused Nos.2 and 3 are the parents-in-law of the deceased. Marriage of her sister was performed 5 years prior to her death. His sister died 3 years ago. He came to know that his deceased sister was harassed by the accused for want of additional dowry. 2 (2018) 10 SCC 593 16 AVRB,J Crl.A. No.989/2010 His mother was telling the said fact to him. He placed the matter 3 months prior to her death before the elders in the village i.e., Krishna Reddy etc. Even after the panchayat held before the elders, his sister was being harassed by the accused. On 09.01.2007, he received a phone call from the house of the accused about the death of his sister. They filed a Police case suspecting that the accused might have caused her death.
18. PW.2 is the elder sister of the deceased and her evidence is that the deceased is her younger sister. Accused No.1 is the husband of her sister. Accused Nos.2 and 3 are the parents-in-law of the deceased. Her sister died 3 years back. Accused used to demand dowry and beat her sister and sent her. Mediation was held in the village through village elders. Her sister was sent back to home and she (PW.2) gave her gold ornaments to her. After she went to the house of the accused, again they insisted for additional dowry. Therefore, her sister died.
19. PW.3 did not support the case of prosecution. Prosecution got declared him as hostile and during his cross-examination, he denied that he stated before Police as in Ex.P-2, his 161 Cr.P.C statement before the Police.
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20. PW.4 is also a hostile witness but did not support the case of prosecution. Prosecution got marked her 161 Cr.P.C statement by way of confrontation, which is Ex.P-3.
21. Similar is the case in respect of the evidence of PW.5, who did not support the case of prosecution. Prosecution got marked his 161 Cr.P.C statement by way of confrontation, which is Ex.P-4.
22. Prosecution examined PW.6, who deposed that on 08.01.2007, Varalakshmi telephoned to him in the evening asking him to come to her house so as to take her to her parents house else she will die. Then, he told her that he is at Tirupati as such he did not attend. He informed the same to his friend, who in turn passed the information to the parents of the deceased. On the next day morning, he came to know about the death of the deceased.
23. Prosecution examined PW.7, junior paternal uncle of the deceased, who deposed that 5 years prior to the death of the deceased, she was given in marriage to accused No.1. At one stage, deceased came to her parents house and mediation was effected with the village elders. Village elders in that connection pacified the matter with regard to the additional dowry amount made by 18 AVRB,J Crl.A. No.989/2010 the accused. Three months thereafter, he came to know that Varalakshmi died.
24. According to the evidence of PW.8, village elder, 3 years back Varalakshmi died. Varalakshmi told him that the accused was demanding her to bring some amount and asked him to come to her village to mediate the issue. Then, he went to the village of the accused and held mediation. They left the deceased Varalakshmi at the house of the accused after pacifying the matter. Two months thereafter somebody told him that Varalakshmi died. He came to know that Varalakshmi took the poison and died. Police examined him.
25. PW.9 and PW.10 did not support the case of prosecution. Prosecution got marked their 161 Cr.P.C statements as Ex.P-5 and P-6 respectively by way of confrontation.
26. PW.11 is the inquest panchayatdar who deposed that he knows the accused and the deceased. When she was in the Panchayat office, Talaries (Village Revenue Assistants) of their village came to him and informed that one woman, who is resident of Jakkalavaripalle, consumed poison and died. He was present when the inquest was held by the Police. She signed in the inquest 19 AVRB,J Crl.A. No.989/2010 report - Ex.P-7. Ramesh (LW.18) and some others also signed in the inquest report.
27. PW.12 deposed that he signed in Ex.P-7 when panchayat was held at the place where the deceased died. He signed in the inquest report. With regard to seizure of poison etc., he deposed that nothing was seized in his presence by the Police. Prosecution got declared him as hostile and during his cross-examination, he denied that at the time of preparation of mahazar, a tin containing some pesticide was seized by the Police.
28. PW.13, mahazar witness for seizure of the poison, did not support the case of prosecution. During his cross-examination by the learned Special Public Prosecutor, he denied that in his presence Police seized a tin of pesticide and that he is deposing false.
29. PW.14, the then Mandal Executive Magistrate (Tahsildar), supported the case of prosecution with regard to the inquest held by him on 09.01.2007 over the dead body of deceased Varalakshmi and his recording statements of V. Nagamma (LW.1), D. Chinnaswamy (LW.2), PW.1, Kolla Chandrasekhar (LW.4), PW.2 and PW.11. PW.1 stated before him as in Ex.P-1. 20
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30. PW.15 is a hostile witness and she did not support the case of prosecution. Prosecution got marked Ex.P-10, her 161 Cr.P.C statement by way of confrontation.
31. Prosecution examined PW.16, Dr. K. Bhaskar Reddy, Professor of Forensic Medicine in SVMC, Tirupati. He deposed that on 10.01.2007, MRO and MEO of Chandragiri gave a requisition to him to conduct post-mortem examination over the dead body of Varalakshmi. He conducted postmortem examination on the same day between 10:30 a.m. and 12:15 p.m. He then found three ante- mortem wounds as mentioned in the post-mortem certificate, which are as follows:
1) Abrasion of 6 x 2 CM over right side of chest, 10 CM below the Axilla, brown in colour.
2) Multiple scratches of 4 to 5 CM x 0.2 CM each with different directions over front of left leg with black scab.
3) Contusion of 5 x 5 CM over front of upper chest in midline, brown in colour.
He deposed that all the wounds are ante mortem in nature. He preserved viscera for chemical examination. According to him, the deceased died about 36 to 48 hours prior to his post-mortem 21 AVRB,J Crl.A. No.989/2010 examination. Ex.P-11 is the post-mortem certificate. After receipt of chemical analysis opinion, he opined that the deceased appears to have died as a consequence of Organophosphate, an insecticide poison. Ex.P-12 is the RFSL report. Ex.P-13 is the final opinion.
32. PW.17 is the Assistant Sub-Inspector of Police, who deposed that on 09.01.2007, while he was in the Police Station as in-charge SHO, Nagamma (LW.1) came to the Police Station and presented a report. Ex.P-14 is the report and he registered it as a case in Crime No.6 of 2007 for the offence under Section 304-B IPC and submitted copies of FIR to all the concerned for further investigation.
33. Turning to the evidence of PW.18, who was the Investigating Officer, he deposed that on 09.01.2007, he took up investigation from ASI, Chandragiri. He visited the spot on the same day. He sent a requisition to the MRO, Chandragiri to hold inquest over the dead body of the deceased. On that, the MRO, Chandragiri visited the spot at Jakkalavaripalle, hamlet of Lakshmipuram and held inquest over the dead body of deceased. He examined and recorded the statements of V. Nagamma (LW.1), D. Chinnaswamy (LW.2), PW.1, Kolla Chandrasekhar (LW.4), PW.2, PW.3 and P. Krishna Reddy (LW.7). Witnesses stated before him as in their 161 22 AVRB,J Crl.A. No.989/2010 Cr.P.C statements. PW.3 stated before him as in Ex.P-2. He conducted panchanama at the scene of offence, which is Ex.P-16. During the said panchanama, he seized a poison bottle from nearby the spot. MO.1 is white coloured plastic bottle. He prepared rough sketch, which is Ex.P-17. On 11.01.2007, he further examined and recorded the statements of PW.4, PW.5 and PW.15. They stated before him as in their 161 Cr.P.C statements i.e., Exs.P-3, P-4 and P.10. On 12.01.2007, he examined and recorded the statements of PW.6, PW.7, PW.8, PW.9 and PW.10. PW.9 and PW.10 stated before him as in Exs.P-5 and P-6. On 14.01.2007, as per his instructions, Head Constable-781, apprehended A-1 to A-4 and produced them before him at Chandragiri Police Station. He effected arrest of the accused. He sent A-1 to A-3 to III Additional Judicial First Class Magistrate, Tirupati and sent A-4 to Juvenile Court i.e., XVIII Metropolitan Magistrate Court, Hyderabad for remand. During inquest, MRO seized the wearing clothes of the deceased, blue colour jacket, white pavada and saree. MO.2 is blue coloured blouse. MO.3 is petty coat and MO.4 is saree. After obtaining the chemical analysis opinion with regard to the viscera and after obtaining final opinion from the Medical Officer, he filed charge sheet in this case. 23
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34. Admittedly, it is a case where PW.3, PW.4, PW.5, PW.9, PW.10, PW.12, PW.13 and PW.15 did not support the case of prosecution. The learned Special Public Prosecutor got marked the 161 Cr.P.C statements of them, which are Exs.P-2, P-3, P-4, P-5, P-6 and P-10 and the Investigating Officer deposed the same. Barring the evidence of the above witnesses, there remains the testimony of PW.1, PW.2, PW.6, PW.7 and PW.8 in support of the allegations in the case of prosecution is concerned. It is apposite to make a mention here that V. Nagamma (LW.1) is the mother of the deceased. It was she who lodged Ex.P-14 report, which was marked through the Investigating Officer. Arguments were advanced before the trial Court about non-examination of mother and father of the deceased. Unfortunately, the trial Court did not notice the fact that LW.1 was given up by the prosecution with a specific endorsement in the charge sheet that she died. There is no dispute that the father of the deceased was not examined. So, the prosecution could not examine the de-facto complainant i.e., LW.1 as she died during the course of trial. On account of the same, no adverse inference can be drawn against the case of the prosecution.
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35. Now, firstly, this Court has to look into as to whether the death of the deceased was within a period of 7 years from the date of her marriage. Admittedly, neither the prosecution nor the accused have come up with any version as regards the date of marriage of the deceased with accused No.1.
36. Coming to the testimony of PW.1, brother of the deceased, he deposed that the marriage of the deceased with accused No.1 was performed 5 years ago prior to her death. Her sister died about 3 years back. His date of examination before the trial Court was on 04.03.2010. Accused did not dispute the evidence of PW.1 that the marriage of the deceased with accused No.1 was performed 5 years prior to her death. Accused did not put forth any contra version during the course of cross-examination as if such marriage was performed beyond 7 years prior to her death.
37. Coming to the testimony of PW.2, sister of the deceased, she did not speak about when the marriage was performed. Even accused did not put forth any version that the marriage was performed beyond 7 years prior to her death.
38. Coming to the evidence of PW.7, junior paternal uncle of the deceased, he deposed that about 5 years prior to death, deceased 25 AVRB,J Crl.A. No.989/2010 was given in marriage to accused No.1. Even his evidence in this regard is not challenged by the accused. Accused did not put forth anything before PW.7 that the marriage was performed beyond 7 years prior to the death of the deceased.
39. Turning to the evidence of PW.8 in the chief-examination, he did not speak about when the marriage of the deceased with accused No.1 was performed. It is a fact that insofar as the so called accused No.4 is concerned, who was a juvenile at the time of alleged offence, separate trial was conducted before the Juvenile Court at Hyderabad in C.C. No.51 of 2008 in which PW.8 herein deposed. In that view of the matter, Exs.D-1 and D-2 were referred to PW.8, which were nothing but the relevant portions of his evidence before the Juvenile Court. During his cross-examination, he deposed that he did not know when the marriage of the deceased was performed with accused No.1. He did not state before the V Additional Chief Metropolitan Magistrate-cum- Principal Magistrate of Juvenile Justice Board at Hyderabad that the marriage was performed 10 years back as in Ex.D-2. As seen from Ex.D-2, it is the copy of deposition of PW.8 herein as PW.8 in C.C. No.51 of 2008, wherein he deposed that he did not know when exactly marriage took place but to his memory, it was about 26 AVRB,J Crl.A. No.989/2010 20 years ago. It is to be noted that no reliance can be placed upon such answers spoken by PW.8 during the course of his cross- examination in C.C. No.51 of 2008 for the reason that as on the date of death, the deceased was aged about 25 years and PW.8 deposed in the above said case on 29.08.2008 i.e., one year after death of the deceased. If that answer is taken into consideration, the marriage of the deceased must have been performed at her 5th or 6th year. So, it is quite improbable to assume that the marriage of deceased was performed when she was aged about 5 or 6 years. The learned Additional Sessions Judge did not place reliance on Exs.D-1 and D-2. So, the evidence of PW.8 is of no use to the defence of the accused to contend that he deposed that marriage was performed beyond 7 years prior to her death. PW.8 herein has deposed that he did not state before the learned Chief Metropolitan Magistrate that the marriage was performed 10 years back. Literally there was no such answer in Ex.D-2. What he deposed was that 20 years ago, marriage was performed to his knowledge, which is quite improbable. Under the circumstances the evidence of PW.8 is of no use to the defence of the accused.
40. Turning to the evidence of PW.18, Investigating Officer, during cross-examination, he deposed that none of the witnesses 27 AVRB,J Crl.A. No.989/2010 examined by him stated about the specific date of marriage between the accused and deceased. He volunteers that they have stated that the marriage was performed 6 years back. He denied that marriage of Varalakshmi was performed with accused No.1, 7 years back to the date of incident. It is to be noted that without challenging the evidence of PW.1, brother of the deceased, and PW.7, junior paternal uncle of the deceased, who categorically testified that the marriage was performed about 5 years prior to the death, accused cannot put forth a suggestion before PW.18 as if the marriage of the deceased was performed beyond 7 years prior to the death of the deceased. Even accused did not put forth any version as to the date of marriage.
41. Under the circumstances, I am of the considered view that PW.1, PW.2 and PW.7 are the proper persons to speak as to when the marriage was performed and their evidence is consistent that the marriage was performed between the deceased and accused No.1 within 7 years prior to her death. The evidence adduced by the prosecution in this regard is convincing. Simply because none of the witnesses stated about the date of marriage, it cannot be assumed that their evidence is false. Hence, I am of the considered view that there is satisfactory evidence to prove the fact that the 28 AVRB,J Crl.A. No.989/2010 death of the deceased was within 7 years prior to the date of marriage.
42. Another crucial aspect to be considered now is as to whether the death of the deceased was otherwise than in normal circumstances.
43. According to PW.1, he received phone call on 09.01.2007 from the house of the accused about the death of the deceased and then they filed the Police case suspecting that the accused might have caused her death. During cross-examination, he denied a suggestion that his sister died due to severe stomachache and ulcers. Coming to the cross-examination part of PW.2, she denied that her sister got severe stomach pain. Such a version was not suggested to PW.7, the junior paternal uncle of the deceased. During the cross-examination of PW.8, he denied that Varalakshmi died due to stomachache. It is to be noted that according to PW.1, Ex.P-1 is his statement of him before the MRO. Even PW.2 stated that she stated before MRO at the time of inquest that she does not know the reason for the death. As seen from Ex.P-1, PW.1 stated before MRO that he does not know as to how the deceased died but there were other allegations as regards the so called dowry harassment etc., made by the accused towards 29 AVRB,J Crl.A. No.989/2010 the deceased. It is to be noted that having come to know about the death of the deceased, PW.1 rushed to the village of the accused from Ongole. After lodging of complaint by the de-facto complainant, inquest was conducted. The case of death of the deceased was ascertained only after post-mortem examination. At the time of inquest under the cover of observation panchanama, Police claimed to have seized the insecticide tin. It does not mean that PW.1, PW.2 and PW.8 were supposed to state at the time of inquest about the cause of death of the deceased. The inquest report under Ex.P-7 coupled with the evidence of inquest panchayatdars i.e., PW.11, PW.12 and PW.13, conducting of inquest by PW.14 was proved. The Investigating Officer (PW.18) deposed about the seizure of empty tin pertaining to the pesticide at the time of inquest. The case of the prosecution is that unable to bear the torture of the accused, the deceased consumed insecticide poison and died. Nothing was suggested before PW.1, PW.2, PW.7 and PW.8 that the deceased did not commit suicide. The defence of the accused before PW.1, PW.2 and PW.8 is totally evasive. His contention is that the deceased died due to the stomach pain.
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44. Now, it is appropriate to look into the evidence of PW.16, Professor of Forensic Medicine in SVMC, Tirupati. His evidence is that he preserved viscera at the time of post-mortem examination and after receipt of the chemical analysis opinion regarding the viscera, he gave final opinion on 30.03.2007 that the deceased would appear to have died as a consequence of Organophosphate insecticide poison. As evident from Ex.P-12 - RFSL report and Ex.P-13 - the final opinion, cause of death of the deceased was due to Organophosphate insecticide poison. During the course of cross-examination of PW.16, accused did not dispute the case of death. His defence was confined with an anxiety to explain about the injuries sustained by the deceased i.e., ante-mortem in nature. He elicited from the mouth of PW.16 that there is possibility for sustaining injuries stated by him due to the struggle due to pain after consuming the insecticide poison. So, ultimately accused admitted suicide theory at the time of cross-examination of PW.16.
45. He elicited from the mouth of Investigating Officer during the course of cross-examination that he noted two houses in Ex.P-17 - rough sketch and the two belongs to the accused. It is a fact that accused No.1 and the deceased used to reside in the house of eastern side and accused Nos.2 and 3 used to reside on 31 AVRB,J Crl.A. No.989/2010 the western side. All the huts are very closely located. So, by virtue of the evidence of PW.18 - Investigating Officer, it is very clear that the defence theory is that accused No.1 and the deceased used to reside in the house of eastern side. There were ante-mortem injuries sustained by the deceased. Of course, cause of death was not due to ante-mortem injuries found on the dead body of the deceased. The defence of the accused is that those ante-mortem injuries might have been caused when the deceased was struggling after consumption of insecticide poison. It is to be noted that when accused No.1 and the deceased were residing together in a small house and the death of the deceased was during night after 08:00 p.m. what he was doing when the deceased was in the so called struggle violently after consumption of insecticide poison is not known. Prosecution need not prove the facts which are exclusively within the knowledge of accused No.1 in view of Section 106 of the Indian Evidence Act, 1872 (for short, „the Evidence Act‟).
46. The defence of the accused before PW.1, PW.2 and PW.8 is quite evasive attributing that the deceased died due to stomach pain. When the prosecution has come up with categorical evidence through PW.16, and got marked post-mortem report and chemical 32 AVRB,J Crl.A. No.989/2010 analysis opinion, accused had no say except to admit that the deceased committed suicide. Presence of ante-mortem injuries on the person of the deceased which were received by her prior to her death is a strong suspicious circumstance against the accused. In normal circumstances, when the deceased and accused No.1 alone were residing in the house at the time of death one has to assume that there was a possibility that the accused No.1 might have caused ante-mortem injuries. To escape from such a scenario, accused ventured to elicit from PW.16 that those injuries might have been possible when the deceased was struggling on account of pain after consumption of poisonous substance. If that be the case, reasonable reaction on the part of accused No.1 would be to provide necessary medical aid or to make necessary reasonable efforts to save the life of the deceased but accused No.1 maintained silence in this regard. Though, it is well established legal principle that accused can maintain silence until the prosecution discharge its burden but the facts which are within the knowledge of the accused are to be explained. Failure on the part of accused to explain how deceased received ante-mortem injuries leads to a conclusion that accused suppressed something with a guilty intention. This conduct on the part of the accused ads further strength to the case of prosecution. 33
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47. Having regard to the above, I am of the considered view that death of the deceased was within a period of 7 years after the marriage in the four corners of the house of accused No.1, when they were residing together. It is undoubtedly unnatural and nothing but under normal circumstances. So, the prosecution has categorically established this fact before the learned Additional Sessions Judge.
48. Now, another crucial thing to be considered here is as to whether the evidence on record proves that accused No.1 demanded additional dowry from the deceased as such harassed her or subjected her to cruelty within the meaning of Section 304-B IPC.
49. PW.1 claimed the fact that he came to know about the dowry harassment through his mother. He was no other than the brother of deceased. In a case of this nature, parents, siblings and kith and kin of the deceased are the natural witnesses. Further, the elders, if any, who conducted mediation to resolve the differences between the couple, are also the natural witnesses. Nothing is elicited from the evidence of PW.1 that he has no family connections with his father or the sister. He denied that his father abandoned him due to his attitude and that he is deposing false. 34
AVRB,J Crl.A. No.989/2010 Absolutely, if the evidence of PW.1 is false, he would have deposed that the deceased told him that she was subjected to dowry harassment. He claimed that his mother was telling the said fact to him. He deposed that he placed the matter 3 months prior to death before the elders and even after panchayat, she was subjected to harassment. So, according to the evidence of PW.1, he took some initiative to mediate the issue.
50. Coming to the evidence of PW.2, who is no other than the elder sister of the deceased, she deposed that accused used to demand dowry and beat his sister and sent her and in this regard mediation was held through the village elders. She was again sent back and later she went to the house of accused, where the accused again demanded her for additional dowry. During the course of cross-examination, she denied that no such harassment was there.
51. As seen from the evidence of PW.6, prior to the death, during the evening of 08.01.2007, deceased telephoned to him and asked him to come and take her to her parents house else she will die. He denied that he is deposing false.
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52. Another crucial witness is PW.7, junior paternal uncle of the deceased, who deposed that they have mediated the issue by gathering the elders and they pacified the matter with regard to additional dowry demand made by the accused. Subsequently, 3 months after the incident, he came to know that Varalakshmi died. Though he admitted that he is junior paternal uncle of Varalakshmi but on that count his evidence cannot be disbelieved. It is quite natural that the close relations of the deceased would take initiative in a case of this nature to resolve the differences between the couple in the event of any dowry or any other un- reasonable demands. Nothing is elicited during the course of cross-examination to disbelieve his testimony.
53. According to PW.8, he deposed about the demand made by the accused and Varalakshmi told him and asked him to come to her village to mediate the matter and he went to the village and held mediation. They left the deceased Varalakshmi at the house of accused after pacifying the issue. Two months thereafter somebody told him that Varalakshmi died. To brand the evidence of PW.8 as false, accused relied upon Ex.D-1. Ex.D-1 is the part of deposition of PW.8 in C.C. No.51 of 2008 before the Juvenile Court at Hyderabad where he deposed that there was beating of the 36 AVRB,J Crl.A. No.989/2010 accused with sticks etc. It is to be noted that simply because PW.8 improved the evidence in C.C. No.51 of 2008, his evidence herein which is not suffering with any improvements cannot be disbelieved. It is not the case of prosecution that the accused beat the deceased with sticks etc. In my considered view, basing on Ex.D-1, the case of the prosecution cannot be thrown out. So, the fact remained is that PW.7 and PW.8 were the persons who conducted some mediation to resolve the issue between the deceased and accused No.1. This Court having scanned the evidence does not find any circumstance to disbelieve their evidence. Insofar as the allegation that accused No.1 demanded additional dowry from the deceased and subjected her to harassment is concerned, there is satisfactory evidence adduced by the prosecution.
54. Admittedly, in view of the language employed in Section 304-B IPC as well as Section 113-B of the Evidence Act, relating to the presumption under dowry deaths, prosecution is bound to establish that such demands are made soon before her death. What is „soon before the death‟ is a question to be considered by this Court. The Hon‟ble Apex Court in The State of Andhra 37 AVRB,J Crl.A. No.989/2010 Pradesh v. Raj Gopal Asawa and others3, had an occasion to deal with how „soon before death‟ is to be ascertained in view of the provisions of Section 304-B IPC and Section 113-B of the Evidence Act. It is apposite to extract here the observations of the Hon‟ble Apex Court at Para No.11, which are as follows:
"11. A conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the 'death occurring otherwise than in normal circumstances'. The expression 'soon before' is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. 'Soon before' is a relative term and it would depend upon circumstances of each case and no strait- jacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression 'soon before her death' used in the substantive Section 304- 3 (2004) 4 SCC 470 = 2004 (1) ALD (Crl.) 642 (SC) 38 AVRB,J Crl.A. No.989/2010 B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression 'soon before' is not defined. A reference to expression 'soon before' used in Section 114. Illustration (a) of the Evidence At is relevant. It lays down that a Court may presume that a man who is in the possession of goods 'soon after the theft, is either the thief has received the goods knowing them to be stolen, unless he can account for his possession. The determination of the period which can come within the term 'soon before' is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression 'soon before' would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live-link between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence".
55. So, by virtue of the above, it is very clear that „soon before‟ is a relative term and it would depend upon the circumstances of each case and no straightjacket formula can be laid down as to what would constitute a period of soon before the occurrence. No definite period has been indicated. Soon before death is not defined. The Court has to decide as to what is soon before death, basing on the proximity test.
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56. According to the evidence of PW.2, PW.7 and PW.8 the act of accused No.1 in making demands to bring additional dowry is a continuing one. According to PW.7, 3 months after the mediation, he came to know that Varalakshmi died. According to PW.8, 2 months after mediation, he came to know that Varalakshmi died. PW.1 also deposed that 3 months prior to the death of the deceased, he placed the issue before the elders and even after that, his sister was being harassed. Evidence of PW.2 means that in spite of mediation also accused No.1 demanded for additional dowry. So, the evidence of PW.1, PW.2, PW.7 and PW.8 reveals that the demand made by accused No.1 with regard to additional dowry is continuing one. So, their evidence stands to the proximity test as laid down by the Hon‟ble Apex Court in Raj Gopal Asawa (3rd supra) as such the prosecution satisfactorily explained that there was a demand made by accused No.1 to bring additional dowry soon before the death of the deceased. The Hon‟ble Apex Court in Raj Gopal Asawa (3rd supra), while dealing with the definition of „dowry', under Section 304-B IPC, referred Section 2 of the Dowry Prohibition Act, 1961 and held as follows:
"8. Explanation to Section 304B refers to dowry "as having the same meaning as in Section 2 of the Act", the question is : what is the periphery of the dowry as defined therein?40
AVRB,J Crl.A. No.989/2010 The argument is, there has to be an agreement at the time of the marriage in view of the words "agreed to be given"
occurring therein, and in the absence of any such evidence it would not constitute to be a dowry. It is noticeable, as this definition by amendment includes not only the period before and at the marriage but also the period subsequent to the marriage. This position was highlighted in Pawan Kumar and Ors. v. State of Haryana (1998 CriLJ 1 144) .
9. The offence alleged against the respondents is under Section 304B IPC which makes "demand of dowry" itself punishable. Demand neither conceives nor would conceive of any agreement. If for convicting any offender, agreement for dowry is to be proved, hardly any offenders would come under the clutches of law. When Section 304B refers to "demand of dowry", it refers to the demand of property or valuable security as referred to in the definition of "dowry" under the Act. The argument that there is no demand of dowry, in the present case, has no force. In cases of dowry deaths and suicides, circumstantial evidence plays an important role and inferences can be drawn on the basis of such evidence. That could be either direct or indirect. It is significant that Section 4 of the Act, was also amended by means of Act 63 of 1984, under which it is an offence to demand dowry directly or indirectly from the parents or other relatives or guardian of a bride. The word "agreement" referred to in Section 2 has to be inferred on the facts and circumstances of each case. The interpretation that the respondents seek, that conviction can only be if there is agreement for dowry, is misconceived. This would be contrary to the mandate and object of the Act. "Dowry" definition is to be interpreted with the other provisions of 41 AVRB,J Crl.A. No.989/2010 the Act including Section 3, which refers to giving or taking dowry and Section 4 which deals with a penalty for demanding dowry, under the Act and the IPC. This makes it clear that even demand of dowry on other ingredients being satisfied is punishable. It is not always necessary that there be any agreement for dowry."
57. Turning to the decision of Hon‟ble Apex Court in Jagjit Singh (2nd supra), the Apex Court at Para No.14 dealt with as to what is „soon' before the death. The observations of the Hon‟ble Apex Court in this regard are as follows:
"14. We need only to advert to a recent judgment rendered by a Bench consisting of three learned Judges in Rajinder Singh v. State of Punjab {(2015) 6 SCC 477 : (2015) 3 SCC (Crl.) 225} only for the purpose of appreciating the words "soon before" occurring in Section 304-B IPC. This is what the Court has to see:
"24. We endorse what has been said by these two decisions. Days or months are not what is to be seen. What must be borne in mind is that the word "soon" does not mean "immediate". A fair and pragmatic construction keeping in mind the great social evil that has led to the enactment of Section 304-B would make it clear that the expression is a relative expression. Time-lags may differ from case to case. All that is necessary is that the demand for dowry should not be stale but should be 42 AVRB,J Crl.A. No.989/2010 the continuing cause for the death of the married woman under Section 304-B."
58. Turning to the decision cited by learned counsel for the appellant in Sher Singh (1st supra), the Hon‟ble Apex Court in fact extensively dealt with about the standard of proof on the part of prosecution to decide the offence under Section 304-B IPC. The Hon‟ble Apex Court at Para No.9 held as follows:
"9. The legal regime pertaining to the death of a woman within seven years of her marriage thus has numerous features, inter alia:
(i) The meaning of "dowry" is as placed in Section 2 of the Dowry Prohibition Act.
(ii) Dowry death stands defined for all purposes in Section 304-B IPC. It does exclude death in normal circumstances.
(iii) If death is a result of burns or bodily injury, or otherwise than under normal circumstances, and it occurs within seven years of the marriage and, it is 'shown' in contradistinction to 'proved' that soon before her death she was subjected to cruelty or harassment by her husband or his relatives, and the cruelty or harassment is connected with a demand of dowry, it shall be a dowry death, and the husband or relative shall be deemed to have caused her death.
(iv) .........
(v) ..........43
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(vi) .........
(vii) The consequences and ramifications of this 'deeming' will be that the prosecution does not have to prove anything more, and it is on the husband or his concerned relative that the burden of proof shifts as adumbrated in Section 113-B, which finds place in Chapter VII of the Evidence Act. This Chapter first covers 'burden of proof' and then "presumption", both being constant bed-fellows. In the present context the deeming or presumption of responsibility of death are synonymous."
59. Ultimately the Hon‟ble Apex Court in Sher Singh (1st supra), held as follows at Para No.26:
"26. .......................... It is for these reasons that we are of the opinion that the prosecution has not shown/presented and/or proved even by preponderance of probabilities that the deceased had been treated with cruelty emanating from or founded on dowry demands. It is in the realm of a possibility that the ingestion of aluminium phosphate may have been accidental."
60. Coming to the present case on hand, the prosecution adduced cogent evidence to prove the allegations with reference to Section 304-B IPC against accused No.1 beyond reasonable doubt. In this case, it is not that the prosecution sought to prove the guilt against the accused basing on preponderance of probabilities. 44
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61. As the prosecution succeeded in proving the allegations under Section 304-B IPC, it has the benefit of presumption under Section 113-B of the Evidence Act. The embodied statutory presumption either under Section 304-B IPC and further the specific statutory presumption under Section 113-B of the Evidence Act means that the Court shall presume that the death of the deceased is on account of the demands for additional dowry. Now, it is for the accused to prove contrary. Accused had evasive defence before PW.1, PW.2 and PW.8 that the deceased died on account of the stomach pain and ulcers. He is not dare enough to challenge the findings of PW.16, Professor of Forensic Medicine in SVMC, Tirupati that the cause of death was due to Organophosphate poison. He did not challenge the evidence of PW.16, Professor of Forensic Medicine in SVMC, Tirupati as to the presence of injuries on the person of deceased. He failed to explain what he was doing when the deceased was struggling for life after consumption of pesticide poison. It is not his defence that he was not present physically on the fateful day. The conduct of accused No.1 is nothing but with a guilty intention and maintaining silence in this regard is not sufficient on his part in view of Section 106 of the Evidence Act. It is a fact that the accused elicited from the mouth of PW.4 and PW.5 - hostile witnesses that the deceased was 45 AVRB,J Crl.A. No.989/2010 suffering with ill-health. It is very difficult to accept such a contention. No reliance can be placed on their evidence as they turned hostile to the case of prosecution. If the deceased was suffering with stomach pain on account of ulcers or something else that would have been borne out by the medical evidence. Accused did not file any piece of paper to show that the deceased was suffering with stomach pain or ulcers. Till the examination of PW.16, Professor of Forensic Medicine in SVMC, Tirupati, the contention of accused is that the deceased died due to stomach pain. Later, the accused admitted that the deceased died after consumption of the pesticide poison. Accused miserably failed to probabilize that the deceased was suffering with such a serious ill- health. So, the accused No.1, who lived with the deceased for a period of 5 or 6 years prior to her death, was the better person to explain as to the mental condition of the deceased at the time of offence. No semblance of explanation is forthcoming from the mouth of the accused in this regard.
62. In view of the above, I am of the considered view that accused miserably failed to rebut the presumption which is available in favour of the prosecution under Section 113-B of the Evidence Act. In the light of the above, I am of the considered view 46 AVRB,J Crl.A. No.989/2010 that the prosecution before the learned Additional Sessions Judge cogently established that the deceased died within a period of 7 years from the date of her marriage otherwise than in normal circumstances and the death of the deceased is nothing but un- natural and the prosecution further categorically established that she was subjected to dowry harassment by the deceased. So, the evidence on record clearly attracts and proves the charge under Section 304-B IPC against accused No.1 beyond reasonable doubt. Considering the same, the judgment of the learned Additional Sessions Judge in Sessions Case No.25 of 2008, dated 06.08.2010, is sustainable under law and facts as such the Appeal is devoid of merits.
63. In the result, the Criminal Appeal is dismissed confirming conviction and sentence imposed against the Appellant/accused No.1 in Sessions Case No.25 of 2008, dated 06.08.2010, on the file of the Court of Additional Sessions Judge-cum-IV Additional District and Sessions Judge, Chittoor at Tirupati.
64. The Registry is directed to take steps immediately under Section 388 Cr.P.C to certify the judgment of this Court including the trial Court record, if any, to the trial Court on or before 21.10.2023 and on such certification, the trial Court shall take 47 AVRB,J Crl.A. No.989/2010 necessary steps to forward a copy of this judgment to the appellant/accused No.1, who is lodged in Central Prison, Kadapa. A copy of this judgment be placed before the Registrar (Judicial), forthwith, for giving necessary instructions to the concerned Officers in the Registry.
Consequently, Miscellaneous Applications pending, if any, shall stand closed.
________________________________ JUSTICE A.V.RAVINDRA BABU Date: 13.10.2023 DSH