Andhra HC (Pre-Telangana)
Nunna Venkateswarlu Alias ... vs The State Of Andhra Pradesh on 16 August, 1995
Equivalent citations: 1996CRILJ108
Author: Ramesh Madhav Bapat
Bench: Ramesh Madhav Bapat
JUDGMENT
1. Accused No. 1 in Sessions Case No. 180 of 1990 which was pending on the file of the Assistant Sessions Judge, Kothagudem is the appellant herein. He along with A-2 and A-3 were prosecuted in the said Court and were tried for an offence punishable under Section 304-B, I.P.C. On evidence, the learned Sessions Judge found that no offence was disclosed against A-2 and A-3 and therefore they were acquitted. A-1 was found guilty of the said charge and therefore he was convicted and sentenced to suffer R.I. for seven years and hence he preferred the present appeal.
2. A-1 happened to be the son of A-2 and A-3. A-2 is the father and A-3 is the mother of A-1. The accused appellant herein got married with the deceased Nunna Leelavathi in the year 1985. She died unnatural death on 12-6-1990 at Kothuru village as she was subjected to cruelty and harassment with demands to bring more dowry from her parents and to sell the land which was gifted to her by her father at the time of the marriage and pay the sale proceeds to them. Being unable to bear the cruelty and harassment. Leelavathi committed suicide by consuming pesticides poison on 12-6-1990 at about 3-30 p.m. at Kothuru village and she also administered poison to her son and therefore it is alleged by the prosecution that the deceased had committed suicide within seven years of her marriage along with A-1 and therefore all the accused are liable to be punished for an offence under Section 304-B, I.P.C.
3. In the present case, P.W. 1 happened to be the father of the deceased. P.W. 2 is the mother of the deceased. P.W. 3 is the brother of the deceased. P.Ws. 4 to 6 were the witnesses, who did not support the prosecution case. P.W. 7 is a Private Doctor, who had treated initially the deceased and her child. P.W. 8 is also a Private Doctor, who had treated the child of the deceased and declared him dead. P.W. 9 is the person, who settled the marriage between the deceased and A-1. He did not support the prosecution. P.W. 10 is a Washerman, who alleged to have taken a letter from A-1 to hand over the same to P.W. 1. P.Ws. 11 and 12 are mediators, who alleged to have attested the panchanama when the Police had seized the broken pieces of bangles and a plastic tin of pesticides. P.W. 13 is a panch witness, who had attested Ex. P. 7 inquest report of the deceased and Ex.P8 inquest report in respect of the child. P.W. 14 is the Mandal Revenue Officer, Julurupad, who had conducted the inquest over the dead bodies of the deceased and her child. P.W. 15 is the post-mortem Doctor, who had conducted the autopsy on the dead bodies of the deceased and her son and had issued post-mortem certificates Ex. P. 12 and Ex.P. 13 respectively. P.W. 16 is the Inspector of Police, who had recorded the first information Ex.P. 3 given by P.W. 1 and the rest of the investigation was done by P.W. 17.
4. The prosecution story can briefly be narrated as follows : As stated earlier, P.W. 1 happened to be the father of the deceased, who had filed Ex.P. 3 first information to P.W. 16. On the strength of Ex.P. 3, the Police missionary was set in motion.
5. The evidence of P.W. 1 was led in the lower court. He has stated in his evidence that the deceased Leelavathi was the only daughter and she was married to A-1 in the year 1985. He further stated that the marriage was performed at the residence of the accused. At the time of marriage, he gave Rs. 20,000/- to A-1 and gifted five acres of wet land to his daughter Leelavathi and presented 10 sovereigns of gold to his daughter Leelavathi. P.W. 1 further stated in his evidence that A-1 to A-3 belong to Kothuru village. After the marriage, his daughter joined her husband at Kothuru village which was at a distance of 10 miles from the village of P.W. 1. Her further stated in his evidence that Leelavathi was blessed with one daughter and one son. Their names are Sangeetha and Narendra respectively. A-1 stayed happily with his daughter Leelavathi for about two years. Subsequently A-1 to A-3 started harassing Leelavathi with a demand to sell away five acres of land gifted to her by him and to pay the sale proceeds to them. P.W. 1 further stated that he was cultivating the land and was paying about Rs. 2000/- every year to his daughter towards the value of the sale proceeds of the produce on the land gifted to her. He further stated in his evidence that on many occasions Leelavathi disclosed to him that A-1 to A-3 used to beat her and were telling to her to sell away five acres of land and bring sale proceeds. P.W. 1 further stated that he was prepared to sell the land but he was not finding the suitable customers and suitable price as the land is situated in a scheduled area. He also found another difficulty that the alienation of land in the scheduled area was prohibited.
6. P.W. 1 further stated that A-1 had written a letter to him as well as to his daughter. A-1 in the said letter had demanded money, gold etc. P.W. 1 has identified the letter written by A-1, which is now produced on record as Ex. P. 1. Ultimately not able to bear the harassment done by A-1 to A-3, the deceased Leelavathi administered poison to her son and she also consumed the poison and ultimately died unnatural death. He alleged to have filed the report with the Police Ex. P. 3. Thus, the Police missionary was set in motion.
7. While commenting upon the entire evidence, the learned counsel for the accused-appellant submitted at the Bar that even accepting the prosecution story as it is, no offence is disclosed under Section 304-B, I.P.C. and therefore it was contended by the learned counsel that the order of conviction and sentence recorded against the accused-appellant by the learned Sessions Judge is erroneous in law.
8. As against the arguments of the learned counsel for the accused-appellant herein, the learned Public Prosecutor submitted at the Bar that the prosecution has been able to prove that the deceased died within seven years of marriage. It is also proved by the prosecution that the deceased had to consume pesticides poison as she was not able to bear with the harassment and physical torture done to her and therefore submitted that the order of conviction and sentence recorded by the learned Sessions Judge be confirmed.
9. Now I proceed to scrutinise the evidence as brought on record so as to ascertain whether the prosecution has been able to connect the accused with the crime.
10. As stated earlier, after the death of the deceased, P.W. 14 Mandal Revenue Officer, Julurupad had conducted the inquest on the dead body of the deceased and also on the dead body of her son. The inquest panchanamas are produced on record as Exs. P. 7 and 8 respectively and they were attested by P.W. 13. Those panchanamas were proved by P.W. 13, after the inquest panchanamas, the dead bodies were sent by the Investigating Officer to P.W. 15 to conduct post-mortem examination. P.W. 15 happened to be the Medical Officer, Government Hospital Kothagudem. On 14-6-1990 at about 2-00 p.m. he received requisitions from the Mandal Revenue Officer and the Station House Officer for conducting the autopsy on the dead body of Leelavathi. He along with the other Doctor, Dr. M. S. Ranga Rao, conducted the autopsy and found that no external injuries on the person of the deceased Leelavathi. Body was swollen. Face, neck and abdomen were swoolen. Smelling a bad odour. The body was smelling pungent pesticide poison. He further found that the blood stained discharged from mouth and nose. Nails were blue in colour. Lungs were dark and congested. Liver was congested. Stomach was empty and was smelling pesticides. According to his opinion, the death was due to consumption of pesticide poison. The deceased died 36 to 48 hours prior to the date of autopsy. Accordingly he issued the post-mortem certificate Ex. P. 12. He further stated that on the same day he along with Dr. M. S. Ranga Rao conducted autopsy on the dead body of the boy named Narendra, aged about 1 1/2 yeas. The entire body was bluish in colour. According to their opinion, the death was due to poison. The post-mortem certificate was issued by them. It is marked as Ex. P. 13.
11. Considering the above opinion of the Doctors, I have no hesitation in holding that the deceased died because of poison within seven years of marriage.
12. Now the point for consideration is whether the deceased committed suicide because she was not able to bear the harassment done by A-1 to A-3.
13. In order to prove guilt home of the accused for an offence punishable under Section 304-B, I.P.C. the prosecution must prove that the deceased died within seven years of marriage because of harassment done to the deceased and if such death shall be called as a 'dowry death'.
14. Section 304-B, I.P.C. reads as under :
"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 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 extent to imprisonment for life."
The word 'dowry' is used in the sub-section understood with reference to under Section 2 of Dowry Prohibition Act, 1961. Section 2 of the Dowry Prohibition Act reads as under.
"2. Definition of "Dowry" :- In this Act, "Dowry" means any property or valuable security given or agreed to be given either directly or indirectly -
(a) by one party to a marriage to the other party to the marriage; or
(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahar in the case of persons to whom the Muslim Personal Law (Shariat) applies."
15. By looking to the definition of "Dowry", the prosecution must prove that the property or the valuable security must have been given or agreed to be given either directly or indirectly at the time of marriage or earlier to the marriage or subsequent to the marriage. In other words, the prosecution must prove that there was an agreement between the two parties where one party must agree to pay the valuables to the other party. Unless the agreement is proved on record, it is not possible to find the accused guilty of an offence punishable under Section 304-B, I.P.C.
16. The learned counsel for the accused-appellant herein relied upon a ruling reported in Ayyala Rambabu v. State of Andhra Pradesh, 1993 (1) ALT (Crl) 73(1). In that decision, the Division Bench of this Court held :
"That Section 2 - Dowry Death - Definition of Dowry - Which demands fall within the meaning of dowry to be punishable for dowry deaths under Section 304-B, I.P.C. stated - Even if all requirements of Section 304-B are satisfied, it is not 'dowry death' unless demand falls within the meaning of dowry under Section 2 of Dowry Prohibition Act - Demand made for amounts after marriage without any prior agreement between the parties to the marriage at the time of or before marriage for payment will not fall under dowry ....."
17. It was held by this Court that the prosecution has to prove that there was a prior agreement to pay some valuable security, money etc., Unless the prior agreement is proved, the accused is not liable to be punished for an offence punishable under Section 304-B, I.P.C.
18. This Court has also held in a ruling reported in Yadla Srinivasa Rao and two others v. The State of Andhra Pradesh, Cri. A. No. 1291 of 1992 (2), that if any property is gifted to the girl by her parents by way of 'Pasupu Kumkuma' and the demand of such articles or properties made by the accused will also not amount to a dowry as defined under Section 2 of the Dowry Prohibition Act. 'Pasupu Kumkuma' is never agreed or negotiated at the time of marriage. The property is gifted or money is paid by the father voluntarily to his own daughter by way of 'Shridhana' and if the Stridhana is not returned within a reasonable time and if demand of such Stridhana made is also not dowry as defined under Section 2 of the Dowry Prohibition Act (sic). Keeping in view the above ruling, I proceed to scrutinise the evidence as brought on record so as to ascertain whether the prosecution has been able to establish the guilt of the accused with the crime punishable under Section 304-B, I.P.C.
19. The prosecution mainly relied upon two letters, which have been identified by P.Ws. 1 to 3. The letter is alleged to have been written by the accused No. 1 in his own handwriting under his own signature. Ex. P. 1 is a letter alleged to have been written by the accused No. 1 to his father-in-law P.W. 1, which reads as under :
"When I came to your house, you promised to pay the money within twenty days. Already 25 days have elapsed till now. Are you not ashamed of ? You have no powers. If she says, everything is vested with your wife and son, you may ask them what you have promised to give, and what you are doing now, why should you promise me anything which you cannot fulfil ? I don't think that you will permit me to live with your daughter. That is why I came to a decision. I am revealing it to you now. If your daughter does not bring with her Rs. 2000/- which you owe me and the paddy sale proceeds of Rs. 1000/-. Total in all Rs. 3,000/- (Rupees three thousand only) along with the gold which you have promised to give i.e., thread and chain within 10 days, she will not lead a marital life with me, that is, I will issue a notice for divorce. This is the final decision I have taken. If the amount of Rs. 3,000/- and the gold are not brought to my house within 10 days, you cannot compel your daughter to live a marital life with me. I will send notice after ten days. I will consult the lawyer at Kothagudem on the 25th giving you 10 days time. There is no question of rethinking. No one can change this decision. This is my final warning to you. You should show this letter to your wife and son. Think well. If you think that your daughter can live in your house only by doing cultivation, that decision may be conveyed to me at the earliest. I will think about the future course of action. There is nothing more to write to the fools who inspite of being asked several times refuse to yield.
Your daughter who deserted and got separated from her husband knows my nature very well. You shall read and explain to her. Through her life she will live in Jannaru happily with her two children." Ex. P. 2 is a letter alleged to have been written by the accused No. 1 to his own wife when she was residing with her parents, which reads as under :
"It is 20 days since you left to your parents house. I am not aware of the developments there. When will you bring the money which you promised to bring ? When will your parents give that money to you ? I came to know that the paddy crop has not been cut. Why that paddy crop has not been cut till now ? This only shows lack of interest on us and our crop by your people in this matter. Except making empty promises, your people does not know how to fulfil them. Till now they have bluffed many times and it is not known how many times more they will bluff ? I do not know whether you are asking our money or not. Even though you are not ashamed of, I feel shame on my part to come to your house. I am unwilling to come to your house because you have deceived us many times. As I am aware of the facts now, I will not permit you to deceive me once again. I am not in need of the land there because I will not be doing anything while your people lack interest and do nothing. There is no value to what your father says. You may ask your junior paternal uncle or our well wishers to sell the land as and when there is a good offer. We do not want that land. My mother-in-law and father-in-law are showing scant respect to me. You have no capacity to ask. After agreeing to given money your elder brother pleaded his inability later. You did not ask him the me. You should tell him that the land which is in your name shall be transferred in his name and he shall sell that land. You will come here with Rs. 2000/-, sale proceeds of paddy and gold within two days i.e., within two days from the date of receipt of this letter. Otherwise circumstances will change. I am asking Rs. 2000/- since the last three years. The inmates of my house should feel ashamed as the amount of Rs. 2000/- is not paid since the last three years. Whether you trust me or your parents, and without bringing money whether you wish to stay there only, it is for you to decide within two days. It is useless either to abuse or beat your mother and father. I cannot reconcile to such fete. If we want to live at our house you shall bring the entire amount, gold and sale proceeds of paddy. We should not have any connection with them. If you heed their advice, you shall stay with them throughout your life. Be careful. Think well and decide. Do not delay. If you cannot understand this letter read it thrice and think well. No more to write.
Yours Sd. x x x N. Venkateswarlu."
20. By reading the above letters, it is evident that the accused-appellant herein had three demands. The first demand to bring the arrears of sale proceeds derived from the land which was gifted to the deceased by her father by way of 'Pasupukumkuma'. The second demand to sell away the said land and bring the sale proceeds and the third demand to bring gold from her father. By looking to the three demands, it is evident that these amounts or the articles or the valuables were never agreed to be paid by P.W. 1 at the time of the marriage negotiations. The evidence of P.Ws. 1 to 3, who are the material witnesses on the point are conspicuously silent. P.W. 1 stated that he gave Rs. 20,000/- by way of dowry. He gifted five acres of land to his daughter and he presented Ten sovereigns of gold to his daughter Leelavathi. In his evidence he has not stated that such demand was made and after fulfilling the demand, the marriage will be performed. In the absence of such positive evidence on record, it cannot be held that there was an agreement between the father of the deceased on the one hand and the accused No. 1 and his parents on the other hand. As stated above, the Division Bench of this Court specifically held that the agreement to pay the valuables at the time of marriage must be established. The said ingredient is totally absent in the evidence of P.Ws. 1 to 3. Under these circumstances, I hold that the prosecution has totally failed to establish that the accused-appellant herein is liable for punishment of an offence under Section 304-B, I.P.C.
21. There is no doubt that there was a constant harassment mentally and physically done to the deceased by A-1 for the reasons stated above. It is also proved from the evidence that the deceased died because of consuming pesticides poison. It is abundantly clear from the record that she was not able to bear the harassment done to her by A-1 and therefore she was driven to commit suicide. With these brief facts, I hold that the accused-appellant herein has committed an offence punishable under Section 498A, I.P.C. He has also abetted to commit suicide of his own wife by giving her constant torture and cruelty. Therefore, I hold that he is liable to be punished for the offence punishable under Sections 498-A and 306, I.P.C.
22. I therefore hold that the order of conviction and sentence recorded by the learned Sessions Judge against the accused-appellant herein for an offence punishable under Section 304-B, I.P.C. is erroneous and liable to be set aside. But the accused-appellant herein is found guilty of an offence punishable under Section 498-A, I.P.C. and also found guilty of an offence punishable under Section 306, I.P.C. Therefore, the accused-appellant herein is convicted under both the charges and sentenced to suffer R.I. for three years on each count and to pay a fine of Rs. 1000/- on each count in default to suffer R.I. for six months. The substantive sentences are made to run concurrently.
In the result, the Criminal Appeal is partly allowed.
23. Appeal partly allowed.