Andhra HC (Pre-Telangana)
Bejjanki Kishan vs State Of A.P. on 30 June, 2005
Equivalent citations: 2005(2)ALD(CRI)185, 2005CRILJ3780
Author: Bilal Nazki
Bench: Bilal Nazki, K.C. Bhanu
JUDGMENT
Bilal Nazki, Actg. C.J.
1. Heard learned senior counsel for the appellant and also the Public Prosecutor and perused the record.
2. The sole accused in Sessions Case No. 749 of 2001 before the IInd Additional Sessions Judge at Karimnagar, has filed this appeal, challenging the conviction and sentence passed against him for the offences under Section 304-B of I.P.C. and under Section 4 of Dowry Prohibition Act. Under Section 304-B of I.P.C., he has been sentenced to imprisonment for life and under Section 4 of the Dowry Prohibition Act, he has been sentenced to one year imprisonment and he has been fined with Rs. 1,000/-, in default, he has to undergo simple imprisonment for a period of three months.
3. On an allegation that the accused burnt his wife, charges were framed against the accused for the offences under Sections 498-A, 302 and 304-B of I.P.C. and under Section 4 of the Dowry Prohibition Act. The accused pleaded not guilty and claimed to be tried. Prosecution examined 13 witnesses and Exhibit 18 documents. Defence did not examine any witness.
4. The learned senior counsel for the appellant submits that the accused has been acquitted of the charges under Sections 498-A and 302 of I.P.C., but was convicted under Section 304-B of I.P.C. and Section 4 of Dowry Prohibition Act. He submits that once a person was acquitted of the offence under Section 498-A of I.P.C., he could not be convicted under Section 304-B of I.P.C. But we have seen from the judgment of the trial Court that the learned Sessions Judge was of the view that since he was convicting the accused under Section 304-B of I.P.C., there was no need to convict the accused under Section 498-A of I.P.C., as according to him, Section 304-B of I.P.C. was a major offence. We will not have to deal with this argument in view of what we are going to hold now on the basis of the evidence.
5. There are two sets of main witnesses in this case. P.Ws. 1, 2 and 3 are close relations of the deceased and prosecution has tried to establish through their testimony that there had been harassment on account of demand for dowry prior to the death of the deceased, by the accused. P.Ws. 4, 5 and 6 are the witnesses, who have spoken about the occurrence. The learned senior counsel submits that there is nothing in the evidence of P.Ws. 1, 2 and 3, which would satisfy the requirement of Section 304-B of I.P.C. that there had been demand for dowry immediately before the death of the deceased, that she was subjected to cruelty or harassment in connection with any demand for dowry. And similarly, P.Ws. 4, 5 and 6 have not spoken anything about the actual occurrence, and about the involvement of the accused in the offence. As a matter of fact, the testimony of these witnesses would show the conduct of the accused, who tried to save the deceased. Before coming to the evidence in detail, we are conscious that the ingredients of Section 304-B of I.P.C. are--
(1) the death should be unnatural.
(2) it should be within 7 years of the marriage, and (3) there should be harassment or cruelty by husband or his relatives for or in connection with any demand of dowry.
If all these three ingredients are proved by the prosecution, then the onus would be on the accused to show that he was not guilty. But if any of the ingredients of Section 304-B, I.P.C. was not satisfied, then the conviction under Section 304-B, I.P.C. cannot be sustained. In the present case, there is no doubt that two ingredients are satisfied i.e. death of the deceased had occurred within 7 years of the marriage and that the death was unnatural. The controversy is with regard to the third ingredient. In view of this discussion we analyze the testimony of P.Ws. 1, 2 and 3.
6. P.W. 1 is the cousin of the father of the deceased. He stated that the deceased was the daughter of Manda Balamallu, the complainant. The father of the deceased had two daughters and one son. The deceased was the elder daughter. The deceased had been given in marriage to the accused. The deceased died three years before. He stated that accused poured kerosene on her person and set her on fire. The marriage of the deceased had been celebrated four months earlier to her death. The father of the deceased had given to the accused, some ornaments as well as cash of Rs. 5,000/- at the time of marriage. After the marriage, the couple lived cordially and happily for about 1 1/2 to 2 months. Thereafter, the accused had been beating, ill-treating and harassing the deceased, forcing her to get further amount towards dowry, since he was himself not doing any work. After two months, the accused shifted to Karimnagar from his village and also brought the deceased with him. Even after shifting to Karimnagar, the accused was behaving with the deceased in the same way, beating, ill-treating and harassing, forcing her to get money from her parents.
7. The learned senior counsel appearing for the appellant submits that no source of knowledge with regard to these allegations against the accused was disclosed by this witness. He did not even say that this information was given by the deceased or any demand was made to him by the accused, or in his presence to anybody related to the accused. This witness further stated that four days earlier to her death, the deceased was brought to the village by her father. The accused came to the house of the father of the deceased to get back his wife, but before that, the father of the deceased had taken away his daughter to Karimnagar so that she was left at the house of the accused. When the accused came to the village, he created a scene and said why had his wife been brought to the village. He threatened that he would kill both of them i.e. the father of the deceased and the deceased. The persons present there, asked him to behave properly and advised him to go back as his wife must have already reached his home. Then he left the place. This was an occasion, where the accused had come to fetch his wife. Had he been demanding any dowry and harassing the deceased on account of non-payment of dowry, then at this stage, in the presence of many people, he would have made a mention of his demand, but at that time, he only complained as to why his wife had been brought to the village by his father-in-law. He did not make any demand with regard to dowry. Then he stated in his examination as to what happened thereafter, which relates to the death of the deceased and has nothing to do with the demand of dowry or harassment on account of dowry.
8. P.W. 2 is the sister of the deceased. She also made a general omnibus statement that the accused was ill-treating and harassing her sister, forcing to get money from her parents. She conceded that she had never visited her sister and accused when they were living at Karimnagar. There is no specific incident mentioned by this witness when the accused made demand of a dowry. She also referred to the incident, which happened at the house of the father of the deceased when the accused came there to get his wife. Even she did not say that the accused, at that point of time, made any demand for dowry.
9. P.W. 3 also stated that on the day of incident, the father of the deceased had, along with his daughter, gone to the house of the accused to Karimnagar. But in the meantime, in the absence of the father of the deceased and deceased, the accused came to the village and he behaved in a rude manner and created a scene and shouted. He was advised not to behave in such a manner and he left the place. He further stated that he learnt that the couple was not living cordially as the accused was ill-treating and harassing the deceased for getting more amount of dowry. This statement was also not substantiated as to wherefrom he got this knowledge. This is merely a hearsay evidence and even he has not stated from whom he had heard. Therefore, we agree with the learned senior counsel for the appellant that there is no evidence on record to show that there was harassment on account of demand of dowry immediately prior to the death. Therefore, the important ingredient of Section 304-B, I.P.C. was not satisfied. Therefore, in our view, the appellant could have not been convicted under Section 304-B, I.P.C.
10. Then comes another set of witnesses P.Ws. 4, 5 and 6, who were present at the place of occurrence around the time of occurrence. These witnesses merely stated that the accused and deceased were quarrelling with each other. On the other hand they also testified that the accused was seen extinguishing the fire when the deceased was on a varandah outside her house during the night. Accused also made arrangements to take the deceased to a hospital at Karimnagar, where he was advised to take the deceased to a better hospital at Warrangal. He did not have money to shift the deceased, but he borrowed an amount of Rs. 200/- from P.W. 4. The learned counsel submits that this conduct of the appellant shows that he had not committed the offence for which he was charged. The learned counsel further submits that since P.Ws. 4, 5 and 6 have spoken nothing about the dowry or demand for dowry or harassment on account of demand for dowry, their evidence may not at all be relevant because the accused had already been acquitted of the offence under Section 302, I.P.C. We agree with the learned counsel for the appellant. Since we have held that there was no evidence to suggest that there was demand for dowry at any stage by the accused, therefore the conviction under Section 4 of Dowry Prohibition Act can also not be sustained.
11. For these reasons, we allow the appeal, set aside the conviction and sentence passed by the trial Court. The appellant shall be set at liberty forthwith, if not required in any other case. Appellant is entitled for refund of fine amount paid, if any.