Andhra Pradesh High Court - Amravati
Mulluri Shaik Khader Villi, vs The State Of Ap Rep By Its Pp Hyd., on 27 July, 2020
Bench: M.Satyanarayana Murthy, B Krishna Mohan
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
AND
THE HON'BLE SRI JUSTICE B.KRISHNA MOHAN
CRIMINAL APPEAL Nos.922 and 1198 OF 2012
COMMON JUDGMENT:(Per Hon'ble Sri Justice M.Satyanarayana Murthy) Accused No.1 in Sessions Case No.108 of 2012 on the file of the VII Additional District and Sessions Judge, Madanapalle, preferred criminal appeal No.922 of 2012 under Section 374 (2) of Criminal Procedure Code (for short "Cr.P.C.") questioning the conviction and sentence passed in calendar and judgment dated 05.09.2012, whereby accused No.1 was found guilty for the offence punishable under Sections 498-A and 304-B of Indian Penal Code (for short "I.P.C.") and under Section 4 of the Dowry Prohibition Act (for short "D.P.Act"), accused No.1 was sentenced to undergo rigorous imprisonment for a period of 3 years for the offence punishable under Section 498-A of I.P.C., further sentenced to undergo rigorous imprisonment for a period of 10 years for the offence punishable under Section 304-B of I.P.C. and also sentenced to undergo rigorous imprisonment for a period of 3 months for the offence punishable under Section 4 of the D.P.Act while acquitting him for the offence punishable under Section 302 of I.P.C. and under Section 3 of the D.P.Act.
P.W.2 - Shaik Jaffarvali in the said Sessions Case filed criminal appeal No.1198 of 2012 under Section 372 of Cr.P.C. questioning the acquittal of accused No.2 - Malluri Shaik Ahamad Basha and accused No.3 - Malluri Shaik Shameem for the MSM,J and BKM,J CrlAs_922 and 1198_2012 2 offence punishable under Sections 498-A, 304-B and 302 of I.P.C. and under Sections 3 and 4 of the D.P.Act.
The parties in the present appeals will be hereinafter referred to as accused and prosecution for convenience of reference and to avoid confusion.
Since both the appeals are against the calendar and judgment dated 05.09.2012 in S.C.No.108 of 2012, we deem it appropriate to decide both the appeals by common judgment.
Accused No.1 - Malluri Shaik Khadar Vali is the son of accused No.2 - Malluri Shaik Ahamad Basha and accused No.3 - Malluri Shaik Shameem. All the three accused allegedly committed murder of Malluri Shaik Riyajunnisa, who was the wife of accused No.1 and daughter-in-law of accused Nos.2 and 3.
The marriage of Malluri Shaik Riyajunnisa, daughter of P.W.2 - Shaik Jaffarvali and sister of P.W.3 - Shaik Inthiyaz was performed on 14.11.2019 in Bharath Kalyanamandapam, Angallu village of Kurabalakota Mandal as per the religious custom. The parents of Malluri Shaik Riyajunnisa P.W.2 - Shaik Jaffarvali and Shaik Reddi Bee paid cash of Rs.2,25,000/-, presented 15 tulas of gold jewels and household articles i.e. iron safe, cot and clothes worth Rs.1,00,000/- to accused Nos.1 to 3 as per their demand as dowry. After the marriage, Malluri Shaik Riyajunnisa joined company of accused No.1 to lead marital life at the house of accused No.2 and 3. They looked after her well for about two months. Thereafter, they started harassing Malluri Shaik Riyajunnisa, wife of accused No.1 and daughter-in-law of accused Nos.2 and 3 without satisfying with the dowry paid and presentations, as she failed to meet the illegal demand for payment MSM,J and BKM,J CrlAs_922 and 1198_2012 3 of additional dowry of Rs.16,00,000/- for purchasing house site, since her parents are earning substantially at Doha, Qatar. As Malluri Shaik Riyajunnisa failed to meet the illegal demand of accused, they intensified harassment in different kinds both physically and mentally. The accused did not allow her to talk to anybody in the street, not allowed her to go to their grand father (complainant), and not even provided sufficient nutritious food. The accused not provided proper medical treatment to Malluri Shaik Riyajunnisa when she was carrying pregnancy. Totally the accused neglected Malluri Shaik Riyajunnisa. However, she delivered a pre-matured male child in 7th month, about 3 days before her death and the child died. Subsequently, Malluri Shaik Riyajunnisa died. The accused Nos.1 to 3 are responsible for her ill-treatment in different ways as narrated above and they all caused death of Malluri Shaik Riyajunnisa, who is the wife of accused No.1 and dauther-in-law of accused Nos.2 and 3.
On the basis of report vide Ex.P.1 of P.W.1 - Shaik Syed Lal, who is the grand father of the deceased Malluri Shaik Riyajunnisa, Sub-Inspector of Police, registered a case in Crime No.85 of 2011 for the offence punishable under Section 498-A and 304-B read with Section 34 of I.P.C. and under Sections 3 and 4 of the D.P.Act on 19.12.2010 at 09.00 p.m., issued Ex.P.8 - F.I.R.
On receipt of express F.I.R., P.W.11 - Sub-Inspector of police, Kalakada Police Station took up investigation, visited scene of offence on 20.12.2010, examined the witnesses, recorded their statements under Section 161 (3) of Cr.P.C., observed scene of offence in the presence of mediators, prepared rough sketch of the scene of offence, marked as Ex.P.9. On the request of P.W.11 -
MSM,J and BKM,J CrlAs_922 and 1198_2012 4 S.Deenadayal, Sub-Inspector of police, P.W.10 - G.Venkata Seshaiah, Tahsildar, Kalakada Mandal, held inquest over the dead body of Malluri Shaik Riyajunnisa on 20.12.2010 from 10.30 a.m. to 01.30 p.m., after completion of inquest, dead body was sent to the Government Hospital, Piler for conducting autopsy over the dead body. P.W.12 - Dr.R.Raja Saheb, along with another Doctor conducted autopsy over the dead body of Malluri Shaik Riyajunnisa, preserved the viscera contents obtained from her dead body, in a sealed bottle and sent to R.F.S.L for examination and report. Later, P.W.11 - Sub-Inspector of Police, examined the witnesses P.W.6 - Patan Ansar Khan and Tarigonda Habeeb and recorded their statements on 21.12.2010. He also seized Ex.P.11 - Wedding card, Ex.P.5 - Nikah certificate issued by the Muthavalli of Jamiya Masid, Angallu Village of Kurabalakota Mandal under the cover of police proceedings.
After analysis, Dr.A.Thulasiramudu, Assistant Director, R.F.S.L., Tirupati sent his report in file No.TPT/TOX/2/2011 dated 18.02.2011, opined that no poisonous substance was found in them and issued R.F.S.L. report, Ex.P.13. On the basis of Ex.P.13, R.F.S.L. report, P.W.12 - Dr. R.Raja Saheb, issued Ex.P.7 final report opining that the deceased would appear to have died of severe asphyxia and that the death took place about 24 to 36 hours prior to post-mortem examination. Investigating Officer served a questionnaire, Ex.P.14 to P.W.12 - Dr. R.Raja Saheb and another doctor, for clarification. To the 1st question that in the present case "what will be a probable cause for asphyxia leading to death", P.W.12 - Doctor replied that (1) loss of blood during the delivery process or after delivery (2) Nutritional deficiency leading MSM,J and BKM,J CrlAs_922 and 1198_2012 5 to gross anemia, thereby causing asphyxia. To the 2nd question that there is any possibility of smothering by closing mouth and nose by force leading to cause severe asphyxia and then death, Doctor replied that "possible". To the 3rd question that the injuries mentioned in the post-mortem certificate are possible during the above incident, they replied "possible". To the 4th question - "will any disease or condition will lead to such severe asphyxia causing death", they replied that gross anemia as mentioned in the answer No.1. Bleeding during delivery cause anemia.
Based on the answers given to the questionnaire, P.W.11 - investigating officer came to the conclusion that the cause of death was cruelty. After completion of investigation, P.W.13 - Sub- Divisional Police Officer, Madanapalle, filed the charge sheet before the Judicial Magistrate of First Class, Vayalpad, for the offence punishable under Sections 498-A, 304-B read with Section 34 of I.P.C. and Section 3 and 4 of Dowry Prohibition Act, who in turn registered the same as P.R.C.No.14 of 2011 and after complying with Section 207 Cr.P.C., committed the case to the Sessions Division under Section 209 of Cr.P.C. as the offence punishable under Section 304-B of I.P.C. is exclusively triable by Court of Sessions. On committal, learned Principal Sessions Judge registered the same as S.C.No.108 of 2012 and made over to VII Additional District and Sessions Judge, to try the accused for various offences and dispose of the same in accordance with law.
Upon hearing, the learned Public Prosecutor and the learned counsel for the accused, the Sessions Court framed the charges for the offence punishable under Sections 498-A, 304-B and alternatively 302 of I.P.C. and Sections 3 and 4 of Dowry MSM,J and BKM,J CrlAs_922 and 1198_2012 6 Prohibition Act against accused Nos.1 to 3, read over and explained to them, they pleaded not guilty and claimed to be tried.
During trial, the prosecution has examined P.Ws.1 to 13 and got marked Exs.P.1 to P.14 and M.O.1 to substantiate its case. After closure of prosecution evidence, the accused were examined under Section 313 Cr.P.C, explained the incriminating material that appeared against them in the testimony of prosecution witnesses, but they denied the same and examined D.Ws.1 to 4 and got marked Exs.D.1 to D.8.
Upon hearing the argument of learned Additional Public Prosecutor and Defence Counsel, the Court below found accused No.1 guilty and convicted him as stated supra while acquitting accused Nos.2 and 3.
Aggrieved by the conviction and sentence passed by the Court below in Sessions Case No.108 of 2012, the criminal appeal No.922 of 2012 is preferred by accused No.1 on various grounds, whereas P.W.2 - Shaik Jaffarvali, father of the deceased Malluri Shaik Riyajunnisa claiming for the victim preferred criminal appeal No.1198 of 2012 questioning the acquittal of accused Nos.2 and 3 for the charges framed against them.
The main grounds raised in the criminal appeal No.922 of 2012 are that the demand was allegedly made two months prior to the date of death of deceased Malluri Shaik Riyajunnisa and the same cannot be said to be "soon before her death" to draw the presumption under Section 113-B of the Evidence Act, thereby recording conviction against accused No.1 for the offence punishable under Section 304-B of I.P.C. is an illegality when he was found not guilty for the offence punishable under Section 302 MSM,J and BKM,J CrlAs_922 and 1198_2012 7 of I.P.C. The trial Court also failed to consider the evidence on record in proper perspective, since, the alleged act of demand of dowry is not soon before the death of Malluri Shaik Riyajunnisa, moreover making demand for payment of amount for meeting necessary and domestic needs do not attract the offence punishable under Section 304-B of I.P.C. unless followed by any element of cruelty or harassment. But the trial Court on an erroneous appreciation of evidence found accused No.1 guilty for the offence punishable under Sections 498-A and 304-B of I.P.C. and under Section 4 of the D.P.Act. P.Ws.1 to 4 and 6 did not speak anything abut the specific harassment meted out by Malluri Shaik Riyajunnisa in the hands of the accused. In the absence of specific instance, the evidence of P.Ws.1 to 4 and 6 cannot be relied upon to record conviction, that too, the alleged demand is not a proximate cause which is not mentioned in Ex.P.1 and it is only an improvement at the subsequent stage. Therefore, finding recorded by the trial Court against the appellant/accused No.1 is illegal and not based on any reliable evidence.
The Doctor, who conducted post-mortem examination also testified that the deceased Malluri Shaik Riyajunnisa died due to severe asphyxia on account of loss of blood, which resulted in anemia and anemia was possible due to heavy bleeding and lack of blood. Therefore, the death of Malluri Shaik Riyajunnisa cannot be said to be homicidal or unnatural death within 7 years of her marriage and on account of her failure to meet illegal demand for payment of dowry soon before her death, she was subjected to cruelty and harassment by accused Nos.1 to 3. Therefore, the conviction and sentence recorded by the trial Court against MSM,J and BKM,J CrlAs_922 and 1198_2012 8 accused No.1, appellant in Crl.A.No.922 of 2012 is illegal and requested to set aside the same finding him not guilty for the offence punishable under Section 498-A and 304-B of I.P.C. and under Section 4 of the D.P.Act.
P.W.2 - Shaik Jaffarvali, father of the deceased Malluri Shaik Riyajunnisa, filed Criminal Appeal No.1198 of 2012 challenging the acquittal of accused Nos.2 and 3 on the ground that the evidence available on record directly pointing out the complicity of accused Nos.2 and 3; and when accused No.1 was found guilty based on the evidence of P.Ws.1 to 4 and 6, acquittal of accused Nos.2 and 3 based on the same evidence for various charges is an error committed by the Court below and that the consistent evidence available on record directly pointing out the complicity of accused Nos.2 and 3, therefore, accused Nos.2 and 3 also responsible for the death of Malluri Shaik Riyajunnisa, but the trial Court did not appreciate the evidence in proper perspective, committed serious error in acquitting accused Nos.2 and 3 for the offence punishable under Sections 498-A, 304-B and 302 of the I.P.C. and under Section 3 and 4 of the D.P.Act. while finding accused No.1 guilty for various charges and requested to set aside the order of acquittal finding accused Nos.2 and 3 guilty for the offence punishable under Sections 498-A, 304-B and 302 of the I.P.C. and under Section 3 and 4 of the D.P.Act.
Smt. D. Sangeetha Reddy, learned counsel for the appellant in Crl.A.No.922 of 2012, contended that absolutely there is no evidence to establish that the deceased Malluri Shaik Riyajunnisa was subjected to harassment for her failure to meet the illegal demand soon before her death and no specific instance MSM,J and BKM,J CrlAs_922 and 1198_2012 9 of harassment or cruelty spoken by any of the witnesses P.Ws.1 to 4 and 6 to rope the accused with the offence punishable under Sections 498-A, 304-B or 302 of I.P.C. and under Sections 3 and 4 of the D.P.Act. Moreover, the medical evidence is consistent and the cause of death was due to excessive bleeding after delivery of pre-mature child and not on account of alleged ill-treatment. Therefore, the question of drawing presumption under Section 113-B of the Evidence Act to find accused No.1 guilty for the offence punishable under Section 304-B of I.P.C. does not arise. Apart from that no complaint was lodged before the death of Malluri Shaik Riyajunnisa complaining such cruelty for her failure to meet the illegal demand for payment of Rs.16,00,000/- to purchase house site at Madanapalle, having kept quiet for substantial period, suddenly report was lodged by P.W.1 making serious allegations though her death was due to excessive bleeding after delivery of pre-mature child. Therefore, recording of conviction against accused No.1 for the offence punishable under Sections 498-A and 304-B of I.P.C. and under Section 4 of the D.P.Act, which is the subject matter of Criminal Appeal No.922 of 2012 is an error apparent on the face of record. She also further contended that when there was no evidence against accused Nos.2 and 3, acquittal of accused Nos.2 and 3 cannot be reversed merely because accused No.1 was found guilty for the offences under Sections 498-A and 304-B of I.P.C. and under Section 4 of the D.P.Act. In support of her contentions, she placed reliance on the judgment of the Apex Court in "Baijnath v. State of Madhya Pradesh1"
1
AIR 2016 SC 5313 MSM,J and BKM,J CrlAs_922 and 1198_2012 10 Sri D.Kodanda Rami Reddy, learned counsel for the appellant in Criminal Appeal No.1198 of 2012, would contend that when accused No.1 was found guilty based on the evidence on record, acquittal of accused Nos.2 and 3 on the basis of same evidence is a serious illegality, even otherwise the material on record would clinchingly establish that Malluri Shaik Riyajunnisa was subjected to harassment soon before her death, which is an offence punishable under Section 498-A of I.P.C., but the trial Court did not consider the evidence in proper perspective, acquitted accused Nos.2 and 3 for the charges framed against them. It is further submitted that the evidence of P.Ws.1 to 4 is directly pointing out the complicity of accused Nos.2 and 3, more particularly their wilful conduct in not providing nutritious food and medical care, which is sufficient to conclude that they committed offence punishable under Sections 304-B and 498-A of I.P.C. and under Sections 3 and 4 of the D.P.Act. The trial Court on an erroneous appreciation, acquitted accused Nos.2 and 3 for the said charges and requested to set aside the same on re-appreciating the evidence on record and record conviction against accused Nos.2 and 3 and sentence them in accordance with law.
Sri K.Srinivas Reddy, learned Public Prosecutor for the State, supported the conviction and sentence passed against accused No.1 while supporting the case of P.W.2, appellant in Criminal Appeal No.1198 of 2012 while requesting to pass appropriate orders.
Considering rival contentions, perusing the material available on record, the points that arise for consideration are:
MSM,J and BKM,J CrlAs_922 and 1198_2012 11
1) Whether the death of deceased Malluri Shaik Riyajunnisa is homicidal due to her failure to meet the illegal demand for payment of dowry soon before her death?
2) Whether accused No.1 or accused Nos.2 and 3
subjected Malluri Shaik Riyajunnisa to any kind of harassment for her failure to meet the demand of additional dowry of Rs.16,00,000/- for purchase of house site at Madanapalle and gold jewellery? If so, whether such act of the accused would constitute offence punishable under Section 498-A of I.P.C. and Under Section 4 of the D.P.Act.?
3) Whether conviction of accused No.1 for the offence punishable under Sections 498-A and 304-B of I.P.C. and under Section 4 of the D.P.Act and acquittal of accused Nos.2 and 3 for the offence punishable under Sections 498- A, 304-B and 302 of I.P.C. and under Section 3 and 4 of the D.P.Act and accused No.1 for the offence punishable under Section 302 of I.P.C. and under Section 3 of the D.P.Act, is in accordance with law? If not, liable to be set aside?
P O I N T No.1:
The case of the prosecution as narrated above is that the cause of death was due to asphyxia. Strangely, the prosecution invented a theory that due to loss of blood after delivery of MSM,J and BKM,J CrlAs_922 and 1198_2012 12 premature male child, Malluri Shaik Riyajunnisa died due to asphyxia. Ex.P.6 - Inquest report, Ex.P.7 - post mortem report and Ex.P.14 - questionnaire are not consistent with the oral evidence of P.Ws.9 and 12. Therefore, taking advantage of certain aspects elicited in the cross-examination of P.W.12 - Dr.R.Raja Saheb, learned counsel for the appellant/accused No.1 contended that the cause of death was due to asphyxia on account of loss of blood, but not on account of asphyxia by smothering, whereas learned Public Prosecutor contended that the cause of death was due to asphyxia due to smothering, and not on account of loss of blood after delivery of premature male child. In view of this controversy, it is appropriate to advert to the oral evidence of Doctors - P.Ws.9 and 12, Ex.P.6 inquest report, Ex.P.7 - Post-mortem report, Ex.P.14 - questionnaire, and the oral evidence of D.W.1 - Dr.Asha Neeraja and Exs.D.2 to D.8 to decide the cause of asphyxia since the cause of death of Malluri Shaik Riyajunnisa i.e. due to asphyxia is not in dispute.
After the death of Malluri Shaik Riyajunnisa, complaint was lodged with the police by P.W.1 - Shaik Syed Lal, grandfather of the deceased Malluri Shaik Riyajunnisa making serious allegations, more particularly about the murder of his granddaughter by name Malluri Shaik Riyajunnisa by accused Nos.1 to 3. After issue of Ex.P.8 - F.I.R., investigation was taken up by P.W.13 - S.Rama Krishnareddy, Sub-Divisional Police Office, and on his instructions, P.W.11 - Sub-Inspector of police made a requisition to P.W.8 - Revenue Inspector and P.W.10 - Tahsildar to held inquest over the dead body of the deceased Malluri Shaik Riyajunnisa. Accordingly, P.W.8 - Mude Hanuman MSM,J and BKM,J CrlAs_922 and 1198_2012 13 Naik, Revenue Inspector held inquest over the dead body of the deceased Malluri Shaik Riyajunnisa in the presence of blood relations and panchayathdars. On the basis of statement of witnesses, the cause of death was due to harassment in connection with additional dowry and opined that the cause of death was due to harassment, Ex.P.6 is the inquest report. But in the cross-examination, P.W.8 did not disclose the name of scribe of Ex.P.6 - Inquest report, but holding inquest over the dead body of Malluri Shaik Riyajunnisa is not in dispute. In the cross-examination of P.W.8, learned counsel for the accused elicited that the nature of wounds were noted in column No.7 of Ex.P.6 - Inquest report. But P.W.8 could not mention whether the wounds are healed or not followed by a suggestion that the injuries mentioned in column No.7 of Ex.P.6 - inquest report are not the injures found on the person of the deceased Malluri Shaik Riyajunnisa and that he was not present at the time of holding inquest over the dead body of the deceased Malluri Shaik Riyajunnisa, but those suggestions were denied by P.W.8 specifically. Thus, the evidence of P.W.8 is consistent as to holding inquest over the dead body of Malluri Shaik Riyajunnisa and injuries noted in column No.7 of Ex.P.6 - inquest report. In column No.7 of Ex.P.6 - inquest report, the following injuries were noted by P.W.8.
"Both ears are blacken. Below the left ear there is a black contusion. Black Contusions on the back and on lips. A burnt injury on left fore hand."
Based on the injuries found on the dead body of the deceased Malluri Shaik Riyajunnisa, blood relations in the MSM,J and BKM,J CrlAs_922 and 1198_2012 14 presence of mediators and P.W.8, opined that the death of deceased Malluri Shaik Riyajunnisa was occurred due to harassment for her failure to meet the demand for dowry. Curiously, in column No.9 of Ex.P.6 - Inquest report, P.W.8 noted as follows:
".................. As per condition of the dead body and as the deceased ears are blacken, white stripes found on back side and burnt injury on her left hand, we suspected the accused that they killed the deceased. After post mortem examination, the cause of death will be determined whether it is dowry harassment death or murder."
Similarly, in column No.15 of Ex.P.6 - Inquest report, injuries found on the dead body of the deceased Malluri Shaik Riyajunnisa were repeated again and the relevant portion of column No.15 is extracted hereunder for better appreciation.
"............ found the dead body with injuries that her both ears are blacken, abrasion below left ear and white stripes on her back, and found the absconding of her husband, parents in law and sisters in law, they suspect that the deceased's husband, in-laws and sisters in law might have been killed her."
Thus, the apparent cause of death from a bare look at the Ex.P.6 - Inquest report is that the death was due to murderous assault by the husband of the deceased Malluri Shaik Riyajunnisa and her relatives including in-laws and sisters-in-law and on account of injuries found on the dead body of Malluri Shaik Riyajunnisa.
P.W.9 - Dr. V.Hemavathi and P.W.12 - Dr.R.Raja Saheb are the doctors, who conducted post-mortem examination on the dead body of Malluri Shaik Riyajunnisa. They found only one external injury i.e. contusion of 6 x 6 cm., over both sides of the face on cheeks. Except the said injury, they did not find any other external injury. After conducting post mortem examination, they opined MSM,J and BKM,J CrlAs_922 and 1198_2012 15 that Malluri Shaik Riyajunnisa appears to have died of asphyxia and approximate time of death was 24 to 36 hours prior to post- mortem examination. Ex.P.7 is the post-mortem examination issued by P.W.12 - Dr.R.Raja Saheb. P.W.8 - Dr. V.Hemavathi admitted that asphyxia is possible due to smothering.
In the cross-examination of P.W.8 - Dr. V.Hemavathi, learned counsel for the accused could elicit that post-mortem certificate was prepared on the basis of the notes prepared by P.W.12 - Dr. R.Raja Saheb. Blood clots in uterus are signs of delivery 7 to 10 days prior to her death. Police sent the copy of inquest report prior to commencement of post mortem examination and there is a mention in the copy of inquest report that the deceased Malluri Shaik Riyajunnisa gave pre-matured birth to a child at her 7th month pregnancy. P.W.8 - Dr.V.Hemavathi further stated that asphyxia is possible due to acute heavy bleeding and lack of blood. In case of loss of blood a person will appear to be anaemic. In case of smothering there would be marks of violence on the face of the deceased.
The questionnaire marked as Ex.P.14 is also confronted to P.W.9 - Dr. V.Hemavathi and P.W.12 - Dr.R.Raja Saheb by the learned counsel for the accused, where P.Ws.8 and 12 stated that loss of blood during delivery process and after delivery and nutrition deficiency leading to gross anemia causing asphyxia (in case of pre-matured delivery), deficiency of oxygen in the blood causes asphyxia and that red blood cells carry oxygen to the brain through blood.
At this stage, after obtaining permission from the learned Sessions Judge, the Additional Public Prosecutor re-examined MSM,J and BKM,J CrlAs_922 and 1198_2012 16 P.W.9 - Dr.V.Hemavathi as there is ambiguity and could elicit that as per questionnaire P.W.9 and P.W.12 - Doctors expressed their opinion that asphyxia is not possible due to deficiency in nutrition.
P.W.12 - Dr. R.Raja Saheb stated that the cause of death was due to asphyxia as per the opinion expressed in Ex.P.7 - post- mortem report. He also admitted specifically that as per the answers given by him to question No.2 that in the present case there is possibility of smothering by closing mouth and nose by force leading to cause severe asphyxia and then death. Similarly to question No.3 that the injuries mentioned in the post-mortem certificate are possible during the course of incident, he answered as "possible". Therefore, on the basis of examination-in-chief and questionnaire marked as Ex.P.14 coupled with Ex.P.7 - post- mortem certificate, the cause of death was due to asphyxia on account of smothering. But the evidence of P.W.9 is silent as to whether asphyxia was due to smothering or not. Similarly, in Ex.P.7 - post-mortem certificate also the cause of asphyxia was not mentioned.
In the cross-examination of P.W.12 - Dr.R.Raja Saheb, it is specifically stated as follows:
"In this case it is clearly evident that the death might have been occurred as a result of heavy loss of blood during the labour process which is due to or may be due to deficiency of nutrition leading to anemia, in turn anemia will enhance more bleeding during the process of expulsion of the products conception i.e. fetus or some products of conception from the uterus, due to delay in involution of uterus. During the process of P.M. examination we note down all the findings in the notes after that we will give a report Ex.P.7 was made with my hand writing in the presence of other duty doctor Hemavathi. She also signed the same."
The medical evidence of P.W.12 - Dr.R.Raja Saheb is inconsistent with the evidence of P.W.9 - Dr.V.Hemavathi and MSM,J and BKM,J CrlAs_922 and 1198_2012 17 findings recorded in Ex.P.7 - post-mortem certificate. But in the earlier part of the cross-examination, the cause of asphyxia was different. P.W.12 specifically stated that heavy loss of blood, results in anemia and thereby causing deficiency of oxygen supply to the tissues of the body especially to the vital organs like brain, kidneys. As a result of loss of blood, there was no sufficient supply of oxygen to vital organs because blood is the carrier of oxygen to all the tissues in the body, as a result of the deficiency of oxygen, death can occur for want of oxygen. The same can be called as death due to asphyxia.
The evidence of P.W.12 - Dr. R.Raja Saheb in the cross- examination is ambiguous and did not give a specific opinion as to the reason for asphyxia and is changing from one opinion to the other, which is not expressed in Ex.P.7 - post-mortem certificate, which was recorded after conducting post-mortem examination. In view of the ambiguity, learned Additional Public Prosecutor obtained permission of the trial Court and cross-examined P.W.12 at length. In the re-examination by Additional Public Prosecutor, P.W.12 - Dr.R.Raja Saheb stated that it is mentioned in the post- mortem report (Ex.P.7) about the fetus and he mentioned abut the cut section of uterus in the post-mortem certificate. He has not mentioned in post-mortem certificate about the recent delivery or abortion. He also admitted that normal bleeding of about 100 to 150 ml. of blood during the process of delivery will be compensated by the body itself. The usual loss of blood in anemic patient can be corrected by transmission of blood. He also admitted that when there is possibility of smothering by more persons, there will be more supportive findings like bruises, abrasions also on the hands, MSM,J and BKM,J CrlAs_922 and 1198_2012 18 back of the neck, nose, face and back of the chest and even on the front of the chest. Smothering after sedation of the person, the above findings need not be there. When the person is in deep sleep, if the smothering is done all the above mentioned findings may not be there. As he is not a forensic expert, he has not gone through so many journals of forensic science regarding medico legal cases, reports, which will substantiate the findings whether it must be there or not, and he cannot give his opinion; and as he is a medical graduate, he can give his opinion as per his knowledge and definitely some signs of smothering will be there unless the person is sedated.
Again, P.W.12 - Dr. R.Raja Saheb was cross-examined by the learned counsel for the accused, but could elicit nothing.
At this stage, Exs.P.7 - post-mortem certificate and Ex.P.14
- questionnaire are relevant to decide the cause of death. Injuries noted and the opinion expressed by the Doctor in Ex.P.7 - post- mortem certificate are extracted hereunder for better appreciation.
"Injury: Contusion of 6 x 6 Cm. over both sides of the face on cheeks. Opinion: The deceased would appear to have died of sever asphyxia and time of death is about 24-36 hours prior to post-mortem examination."
Question Nos.2 and 3 and answers to the said questions given by P.W.12 - Dr.R.Raja Saheb in Ex.P.14 - questionnaire are also extracted hereunder for better appreciation:
"Question No.2: In this case there is any possibility of smothering by closing mouth and nose by force leading to cause severe asphyxia and then death?
Answer: Possible.
Question No.3: In this case the injuries mentioned in the post-mortem certificate are possible during the above incident? Answer: Possible."
MSM,J and BKM,J CrlAs_922 and 1198_2012 19 In view of the answers given by P.Ws.9 and 12 - Doctors, the cause of death was asphyxia and possibility of asphyxia due to smothering cannot be ruled out.
The Doctors (P.Ws.9 and 12), who conducted post-mortem examination are not even conversant with forensic terms and simply mentioned that the cause of death was asphyxia as discussed in the earlier paragraphs. P.W.12 clearly stated that he is not a forensic expert and he does not know about forensic examination being a medical graduate as he was not a specialist in forensic sciences. Therefore, the opinion of P.W.9 - Dr.Hemavathi and P.W.12 - Dr. R.Raja Saheb though consistent with the cause of death, for one reason or the other, their evidence is not clear as to what was the cause of asphyxia.
In view of evidence of P.W.9 - Dr.Hemavathi and P.W.12 - Dr. R.Raja Saheb, it is necessary to advert to the definition of asphyxia and cause of asphyxia with reference to Modi's Medical Jurisprudence, which is authoritative book on Medical Jurisprudence and Toxicology.
There are three different kinds of asphyxia.
(i) Asphyxia is a mode of death caused by interference with respiration, in which the cells fail to receive or utilize oxygen(hypoxia) together with a failure to eliminate excess of CO2 (hypercapnia). The classical signs of asphyxia are visceral congestion, petechiae, cyanosis and fluidity of blood, but are now considered to be nonspecific as they can occur in deaths from other causes also.
(ii) Manual strangulation, also known as throttling, is a type of asphyxial death where the perpetrator uses his hand to MSM,J and BKM,J CrlAs_922 and 1198_2012 20 encircle and compress the front and side of the neck. It is a common method of homicide, most often encountered when the physical size and strength of the assailant exceeds that of the victim. The usual victims are females, children, aged people and those cases where the victim may be incapacitated due to drugs or caught unaware because of the suddenness of the act.
(iii) Traumatic asphyxia is different from other types of mechanical asphyxia, where mechanical fixation of the chest wall leading to restricted respiratory movements and prevention of inspiration; as compared to obstruction of air entry into the lungs that occur in other types of mechanical asphyxia. It occurs in two main conditions. The chest and upper abdomen are compressed by an unyielding substance or object so that chest expansion and diaphragmatic lowering are prevented. Common examples are getting buried underneath sand, earth, coal, avalanche and entrapment beneath motor vehicles, heavy machinery. The second type is crushing in crowds. It can also occur when one person kneels or sits with the whole weight of his body upon another for a protracted period.
Traumatic asphyxia and mechanical asphyxia are not relevant for deciding the issue before this Court, since the Post Mortem report marked as Ex.P5 coupled with the evidence of P.W.7 discloses that cause of death of deceased was asphyxia by smothering.
Asphyxia by smothering is caused by blocking air entry into the lungs by simultaneous closure of the nose and mouth. They are usually homicidal, rarely suicidal and very rarely accidental.
MSM,J and BKM,J CrlAs_922 and 1198_2012 21 Bruises or abrasions on the cheeks, around the mouth, lips or lesions within the lips or mouth are the features of smothering.
In Modi's Medical Jurisprudence and Toxicology, 23rd Edition, smothering or closure of the Mouth and Nostrils is elaborated as follows:
(i) Smothering or Closure of the Mouth and Nostrils Infants are often accidentally smothered by being overlaid by their mothers when they are drunk. This is more common among the lower classes of women in England. In India, such cases are rare, as infants are generally not allowed to sleep on the same bed with their mothers, but are placed in separate cradles. However, they are sometimes smothered by inexperienced mothers who press them too closely to the breast when suckling. A common method of killing infants, children and weak adults is to close the mouth and the nostrils by means of the hand, bedclothes, soft pillows or mud.
Cases have been recorded of adults being accidentally smothered by plaster of paris at the time of taking a cast or mould, or by falling face downwards into vomited matter, flour, cement, ashes, sand or mud, especially when drunk or during an epileptic fit.
Plastic bag suffocation has been reported from various countries. Deaths have occurred in course of autoerotic misadventures by use of plastic bag placed over the head. Some addicts use plastic bags in a similar manner to sniff or inhale narcotic vapours or anaesthetics. Chemical analysis is essential in all the cases of plastic bag asphyxias occurring in teenagers; for otherwise the proper diagnosis of poisoning by inhalation of narcotic vapours may be missed. A thorough search of the scene for the solvents (acetone, benzene, toluene, naphtha, carbon tetrachloride) should also be made and the relatives questioned.
[ In Modi's Medical Jurisprudence and Toxicology, 23rd Edition, several factors were pointed out to decide whether suffocation was suicidal, homicidal or accidental.
MSM,J and BKM,J CrlAs_922 and 1198_2012 22
(ii) Whether Suffocation was Suicidal, Homicidal or Accidental Suicidal suffocation is very rare, though a few cases of suicide among prisoners and insane persons have been recorded. They are said to have suffered their throats with rags, pieces of blankets, and hay. A few cases of women using a common plastic bag to commit suicide by trying them over their head and neck have been reported. Accidental death may be caused in children who cover their head with these bags during play.
Homicidal suffocation by pressure on the chest is sometimes resorted to in India, but in the case of adults, it is often combined with smothering or throttling, and it is usually an act or more than one person. A form of homicidal suffocation practiced in Northern India is known as 'Bansdola' although it is not so common now as it used to be formerly. In this form, the victim's chest is squeezed so forcibly between two strong wooden planks or bamboos, one being placed across the upper part of the chest and the other across the back of the shoulders, that the respiratory act is interfered with, the muscles are lacerated and the ribs are fractured. If the force applied is very severe, the lungs may be crushed and lacerated.
Accidental suffocation is frequent and is produced as described above and by being buried under the sand or the earth while digging deep pits; here the respiratory tract is packed with sand or earth.
The Apex Court in "Subramaniam Vs State of Tamil Nadu2"
based on the Modi's Medical Jurisprudence and Toxicology, while extracting the passages from the above book and more particularly with reference to Post Mortem appearances (of external and internal) and drawn difference between homicidal suffocation and suicidal suffocation.
"Post-mortem appearances are external and internal 2 (2009)14SCC415 MSM,J and BKM,J CrlAs_922 and 1198_2012 23
(i) External Appearance The external appearance may be due to the cause producing suffocation, or to asphyxia.
(a) Appearance due to the Cause Producing Suffocation: In homicidal smothering, affected by the forcible application of the hand over the mouth and the nostrils, bruises and abrasions are often found on the lips and on the angles of the mouth, and alongside the nostrils. The inner mucosal surface of the lips may be found lacerated from pressure on the teeth. The nose may be flattened, and its septum may be fractured from pressure of the hand, but these signs are, in Modi's experience, very rare. There may be bruises and abrasions on the cheeks and the molar regions, or on the lower jaw, if there has been a struggle. Rarely, fracture or dislocation of the cervical vertebrae may occur if the neck has been forcibly wrenched in an attempt at smothering with the hand. No local signs of violence will be found, if a soft cloth or pillow has been used to block the mouth and nostrils.
In compression of the chest, external signs of injury may not be present, but the ribs are usually fractured on both the sides. In homicidal compression of the chest brought about by the hands or knees of a murderer or by some other hard material, bruises and abrasions, symmetrical on both sides, are usually found on the skin together with extravasation of the blood in the subcutaneous tissues. Rarely, along with the ribs the sternum is also fractured. It should, however, be remembered that the traumatic asphyxia produces variable findings. In a fair person, purple suffusion of skin above the point of compression is apparent in severe fixation of the chest by mechanical compression. There may not be any external or internal signs where the pressure is slight or evenly distributed.
(b) Appearance due to asphyxia: The face may be pale or suffused. The eyes are open, the eyeballs are prominent, and the conjunctivae are congested and sometimes there are petechial hemorrhages. The lips are livid, and the tongue MSM,J and BKM,J CrlAs_922 and 1198_2012 24 sometimes protruded. Bloddy froth comes out of the mouth and the nostrils. The skin shows punctiform ecchymoses with lividity of the limbs. Rupture of the tympanum may occur from a violent effort at respiration.
(ii) Internal Appearance:
Rags, mud or any other foreign matter may be found in the mouth, throat, larynx or trachea, when suffocation has been caused by the impaction of a foreign substance in the air-passages. It may also be found in the pharynx or the oesophagus. The mucous membrane of the trachea is usually bright red, covered with bloody froth and congested. The lungs are congested and emphysematous. They may be lacerated or contused even without any fracture of the rib, if death has been caused by pressure on the chest. Punctiform subpleural ecchymoses (Tardieu spots) are usually present at the root, base, and the lower margins of the lungs, but they are not characteristic of death by suffocation, as they may also be present in asphyxia death from other causes. They are also found on the thymus, pericardium, and along the roots of the coronary vessels. The lungs may be found quite normal, if death has occurred rapidly. The right side of the heart is often full of dark fluid blood, and the left empty. The blood does not readily coagulate; hence, wound caused after death may bleed. The brain is generally congesting, and so are the abdominal organs, especially the liver, spleen and kidneys"
In his opinion, to come to a definite conclusion it is very essential to look for evidences of violence in the shape of external marks surrounding the mouth and nostrils or on inside the mucosal surface, or on the chest. According to the learned author, circumstantial evidence should always be taken into consideration to establish the proof of death from suffocation. In regard to the medico-legal question as to whether the suffocation was suicidal, homicidal or accidental, the learned author stated:
"Homicidal suffocation by pressure on the chest is sometimes resorted to in India, but in the case of adults, it is MSM,J and BKM,J CrlAs_922 and 1198_2012 25 often combined with smothering or throttling, and it is usually an act of more than one person.....
A form of homicidal suffocation practiced in Northern India is known as `Bansdola', although it is not so common now as it used to be formerly. In this form, the victim's chest is squeezed so forcibly between two strong wooden planks or bamboos, one being placed across the upper part of the chest and the other across the back of the shoulders, that the respiratory act is interfered with, the muscles are lacerated and the ribs are fractured. If the force applied is very severe, the lungs may be crushed and lacerated.
Keeping in mind the internal and external appearances in case of death due to asphyxia and difference between Suicidal asphyxia, Homicidal or Accidental, we have to examine whether the cause of death of Malluri Shaik Riyajunnisa was homicidal smothering leading to suffocation and death.
As per Modi's Medical Jurisprudence, asphyxia could not be caused due to anemia. It appears that P.W.12 - Dr.R.Raja Saheb though public servant for the reasons best known to him supported the case of defence indirectly in the cross-examination. Though, his evidence is consistent from the beginning that death was due to asphyxia by smothering as per the answer to question No.2 in Ex.P.14 questionnaire, he suddenly changed his version regarding cause of anemia and testified only to support the accused before the trial Court. When the evidence of witness in the examination-in-chief based on certificate he issued and the questionnaire he answered, marked as Ex.P.7 and P.14, the evidence in the cross-examination is highly doubtful and the evidence of P.W.12 - Dr.R.Raja Saheb in chief-examination is supported by Ex.P.7 - post-mortem certificate and Ex.P.14 -
MSM,J and BKM,J CrlAs_922 and 1198_2012 26 questionnaire, the same can be believed to decide the cause of death and reason for asphyxia.
As discussed above, in Ex.P.6 - Inquest report, several injuries were noted in column Nos. 7 and 15, but P.W.9 - Dr.Hemavathi and P.W.12 - Dr.R.Raja Saheb did not note those injuries in the post-mortem examination, more particularly in Ex.P.7 - post mortem certificate for one reason or the other. Even otherwise, the injury noted in Ex.P.7 - post-mortem certificate i.e. contusion of 6 x 6 cm., over both sides of the face on cheeks, would occur only when strangled while she was smothered to obstruct passage of air and cause of death was due to asphyxia by any 3rd party. If really, heavy loss of blood, results in anemia and there by causing deficiency of oxygen supply to the tissues of the body especially to the vital organs like brain, lungs, kidneys, the question of sustaining injuries on both cheeks or on the face of the deceased Malluri Shaik Riyajunnisa does not arise. Scene of offence is in the house of accused No.1 himself and she delivered pre-matured male child just few days before her death and it is the case of accused that there was excessive bleeding at the time of delivery or post delivery, which is not disputed by either of the parties. But causing asphyxia due to heavy bleeding is unbelievable in view of the internal and external findings noted by P.W.9 - Dr.V.Hemavathi and P.W.12 - Dr.R.Raja Saheb in Ex.P.7 - postmortem certificate and Ex.P.14 - questionnaire. The evidence of P.Ws.9 and 12 with regard to reason for asphyxia is not believable taking into consideration of their answers to the questionnaire marked as Ex.P.14 and based on passages from MSM,J and BKM,J CrlAs_922 and 1198_2012 27 Modi's Medical Jursiprudence and Toxicology and principle laid down in Subramaniam Vs. State of Tamil Nadu (referred supra).
One of the contentions of the learned counsel for the appellant/accused No.1 is that the deceased Malluri Shaik Riyajunnisa was suffering from deficiently of nutritious food, which lead to anemia and died due to excessive bleeding. To support this contention, he referred the evidence of D.W.1 - Dr.Asha Neeraja, who allegedly treated the deceased Malluri Shaik Riyajunnisa. According to the evidence of D.W.1 - Dr.Asha Neeraja, she examined the deceased Malluri Shaik Riyajunnisa on 14.06.2010, 22.07.2010, 09.10.2010, 26.10.2010 and 03.12.2010 i.e. at the early stage of pregnancy i.e. during 6th month pregnancy and confirmed the pregnancy. Ex.D.2 is the record pertaining to the treatment dated 14.06.2010 and 22.07.2010. Ex.D.3 is the record pertaining to the treatment dated 26.10.2020 and 03.12.2010. Ex.D.4 is the prescriptions dated 09.10.2010. Ex.D.5 is the prescription dated 26.10.2010. Ex.D.6 is the blood investigation report dated 26.10.2010. Ex.D.7 is the scan report dated 09.10.2010. Ex.D.8 is the receipt dated 26.10.2010 for the blood investigations conducted in her hospital. Ex.D.6 assumes importance in view of the specific contention raised by the learned counsel for the appellant/accused No.1. Ex.D.6 discloses that the result of HIV antidody test is "non-reactive". But no finding is recorded as to the deficiency of blood or iron. Therefore, the documents marked as Exs.D.2 to D.8 are of no use to establish that she suffered from anemia, which resulted in death due to asphyxia, more particularly due to excessive bleeding at or after delivery of pre-matured male child.
MSM,J and BKM,J CrlAs_922 and 1198_2012 28 On consideration of entire material available on record, more particularly the injuries recorded in Ex.P.6 - Inquest report and Ex.P.7 - Post-mortem certificate clinchingly establish that the cause of death was due to asphyxia by smothering. In case, the deceased Malluri Shaik Riyajunnisa died due to anemia because of loss of blood as stated by P.W.12, the question of finding injuries on both cheeks and other injures noted in Ex.P.6 - Inquest report does not arise. Therefore, the injuries on the body of the deceased Malluri Shaik Riyajunnisa would have caused only during struggle when she was smothered to block air passage. The resistance may be minimal due to delivery of pre-matured male child just before 2 or 3 days prior to the date of death. Hence, we hold that the cause of death was due to asphyxia by smothering, but not due to loss of blooding as stated by P.W.12 - Dr.R.Raja Saheb. As such it is homicidal death. The point is answered accordingly. P O I N T Nos.2 and 3:
The trial Court though framed charges for the offences punishable under Sections 498-A and 304-B alternatively Section 302 of I.P.C. and under Sections 3 and 4 of the D.P.Act, acquitted all the accused for the offence punishable under Section 302 of I.P.C. while finding accused No.1 guilty for the offence punishable under Sections 498-A and 304-B of I.P.C. and under Section 4 of the D.P.Act. No appeal is preferred by the State or by the Victim against the acquittal of accused No.1 for the offence punishable under Section 302 of I.P.C. Hence, the finding recorded by the Sessions Court for the charge under Section 302 of I.P.C. attained finality and this Court while exercising power under Section 374 (2) of I.P.C. cannot interfere MSM,J and BKM,J CrlAs_922 and 1198_2012 29 with such unchallenged finding recorded by the trial Court while deciding the appeal filed by accused No.1 for different offences.
The offence punishable under Section 304-B of I.P.C. is commonly known as "dowry death", which reads as follows:
"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.
(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.
The appellant/accused No.1 is no other than the husband of Malluri Shaik Riyajunnisa and accused Nos.2 and 3 are in- laws, but the trial Court recorded a specific finding that accused Nos.2 and 3 have not been residing along with accused No.1 in the matrimonial home at Kalakada village by the time of death of Malluri Shaik Riyajunnisa and they were residing at Madanapalle even from five or six months prior to the death of Malluri Shaik Riyajunnisa, and acquitted them. Aggrieved by the acquittal of accused Nos.2 and 3, a separate appeal is filed by the victim. Therefore, it is appropriate to decide both the appeals by reappreciating the evidence available on record and come to an independent conclusion uninfluenced by the findings of the trial Court.
MSM,J and BKM,J CrlAs_922 and 1198_2012 30 To constitute an offence punishable under Section 304-B of I.P.C., the main ingredients to be established are
(a) that soon before the death of the deceased she was subjected to cruelty and harassment in connection with the demand of dowry.
(b) the death of the deceased woman was caused by any burn or bodily injury or some other circumstance which was not normal.
(c) such death occurs within seven years from the date of her marriage.
(d) that the victim was subjected to cruelty or harassment by her husband or any relative of her husband.
(e) such cruelty or harassment should be for or in connection with demand of dowry.
(f) it should be established that such cruelty and harassment was made soon before her death. (vide: Kashmir Kaur v. State of Punjab3") Similarly, in "Baljit Singh v. State of Haryana4" the Supreme Court laid down only three ingredients, they are as follows:
(a) that a married woman had died otherwise than under normal circumstances;
(b) such death was within 7 years of her marriage; and
(c) the prosecution has to establish that there was cruelty and harassment in connection with demand for dowry soon before her death.
Hence, to convict the accused for the offence punishable under Section 304-B of I.P.C., the prosecution has to establish all the ingredients laid down in Baljit Singh v. State of Haryana (referred supra). In the event of failure to prove any of the ingredients, the accused are entitled for acquittal.
The cause of death of Malluri Shaik Riyajunnisa was unnatural and death was due to asphyxia by smothering as held in point No.1. Therefore, first ingredient that the death was unnatural and not in normal circumstance was established. The 3 AIR 2013 SC 1039 4 AIR 2004 SC 1714 MSM,J and BKM,J CrlAs_922 and 1198_2012 31 death occurred within seven years from the date of her marriage was also established. The prosecution also established that there was cruelty and harassment in connection with demand for dowry. But it has to be examined whether such cruelty and harassment was made soon before her death.
The word "soon before her death" assumes much importance to decide the complicity of the accused for the offence punishable under Section 304-B of I.P.C. Thus, if such harassment and cruelty of woman was not soon before her death, the same would not fall within the ambit of Section 304-B of I.P.C.
In the event of establishing the above ingredients, the Court can draw the legal presumption that it was a dowry death caused by the husband and his relatives. Though the burden of proof is on the prosecution under Section 304-B of I.P.C., the proof of harassment and cruelty in connection with demand for dowry and such harassment was caused soon before her death is sufficient to shift the burden on the accused to prove that the accused was not subjected the deceased to cruelty. The expression "soon before her death" used in Section 304-B of I.P.C. and Section 113-B of the Evidence Act assumes much importance since the proximity or interval between cruelty and death should not be much. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the concerned death. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it MSM,J and BKM,J CrlAs_922 and 1198_2012 32 would be of no consequence (Vide: Mustafa Shahdal Shaikh v. State of Maharashtra5") Similarly, in "Kaliyaperumal v. State of Tamil Nadu6"
and "Yashoda v. State of Madhya Pradesh7" the Apex Court elaborated the language used in Section 304-B of I.P.C. and Section 113-B of the Evidence Act and held that the expression 'soon before her death' used in the substantive Section 304B IPC and Section 113B 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. 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.
In dowry death cases and in most of such offences direct evidence is hardly available and such cases are usually proved by circumstantial evidence. Section 304-B of I.P.C. and Section 113-B of the Evidnece Act enact a rule of presumption, i.e., if death occurs within seven years of marriage in suspicious 5 AIR 2013 SC 851 6 AIR 2003 SC 3828 7 (2004) 3 SCC 98 MSM,J and BKM,J CrlAs_922 and 1198_2012 33 circumstances. This may be caused by burns or any other bodily injury. Thus, it is obligatory on the part of the prosecution to show that death occurred within seven years of marriage. If the prosecution would fail to establish that death did not occur within seven years of marriage, this section will not apply (Vide "Ratan Lal v. State of Madhya Pradesh8" and "S.V.Satyanandam v. Public Prosecutor, A.P. High Court9") In "Vipin Jaiswal v. State of A.P.10" the Apex Court considered the scope of word "dowry" and held that the demand was made six months after the marriage for payment of Rs.50,000/- to purchase computer and to start own business and that the death occurred much later, consequently the demand would not fall under Section 2 of the D.P.Act. In the said judgment, the Apex Court relied on "Appasaheb v. State of Maharashtra11", wherein the Apex Court held as follows:
In view of the aforesaid definition of the word "dowry" any property or valuable security should be given or agreed to be given either directly or indirectly at or before or any time after the marriage and in connection with the marriage of the said parties. Therefore, the giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential. Being a penal provision it has to be strictly construed. Dowry is a fairly well known social custom or practice in India. It is well settled principle of interpretation of Statute that if the Act is passed with reference to a particular trade, business or transaction and words are used which everybody conversant with that trade, business or transaction knows or understands to have a particular meaning in it, then the words are to be construed as having that particular meaning. (See: Union of India v. Garware Nylons Ltd. (AIR (1996) SC 3509) and Chemicals and Fibres of India v. Union of India (AIR (1997) SC
558).
8
1994 Cri L J 1684 9 AIR 2004 SC 1708 10 (2013)3 SCC 684 11 (2007) 9 SCC 721 MSM,J and BKM,J CrlAs_922 and 1198_2012 34 Learned Counsel for the appellant/accused No.1 relied on "Baijnath v. State of Madhya Pradesh" (referred supra), wherein the Apex Court held as follows:
"This Court while often dwelling on the scope and purport of Section 304B of the Code and Section 113B of the Act have 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 Alias Sawinder Kaur and Anr. v. State of Punjab (2011) 11 SCC 517 and echoed in Rajeev Kumar v. State of Haryana (2013) 16 SCC 640. In the latter pronouncement, this Court propounded that one of the essential ingredients of dowry death Under Section 304B of the Code is that the accused must have subjected the woman to cruelty in connection with 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 113B of the Act. It referred to with approval, the earlier decision of this Court in K. Prema S. Rao v. Yadla Srinivasa Rao (2003) 1 SCC 217 to the effect that to attract the provision of Section 304B 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".
Learned Counsel for the appellant/accused No.1 relied on "Baljinder Kaur v. State of Punjab12" wherein the Apex Court held that there must be material to show that "soon before her death" the woman was subjected to cruelty or harassment "for or in connection with dowry". The facts must show the existence of a proximate live link between the effect of cruelty based on dowry demand and the death of the victim. "Soon before death" is a relative term and no strait-jacket formula can be laid down fixing any time-limit. The determination of the period which can come within the term "soon before death" is left to be determined by the Courts depending upon the facts and circumstances of each case. 12
(2015) 2 SCC 629 MSM,J and BKM,J CrlAs_922 and 1198_2012 35 Considering the law laid down by the Apex Court and this Court in various judgments referred supra, it is clear that unless the prosecution establishes the ingredients referred supra, more particularly that the deceased was subjected to cruelty soon before her death for her failure to meet the demand of dowry or in connection with dowry, the accused cannot be convicted.
Turning to the facts of the present case, the main witnesses are P.W.1 - Shaik Syed Lal, P.W.4 - Shaik Fairoz, and P.W.5 - G.Ashok Kumarreddy, who are residents of nearby village in the State of Andhra Pradesh and P.W.2 - Shaik Jaffarvali, father of the deceased Malluri Shaik Riyajunnisa was residing at Doha, Qatar.
A bare look at Ex.P.1 - complaint, which set the criminal law into motion, the marriage of the deceased Malluri Shaik Riyajunnisa was performed with accused No.1 on 14.11.2009 and P.W.2 - Shaik Jaffarvali paid Rs.2,25,000/- besides presentation of other articles worth Rs.1,00,000/-. The said fact was supported by the evidence of P.W.2 - Shaik Jaffarvali, P.W.3
- Shaik Imtiyannisa, P.W.4 - Shaik Fairoz, and P.W.5 - G.Ashok Kumarreddy. P.Ws.1, 4 and 5 explained the harassment the deceased Malluri Shaik Riyajunnisa meted out in the hands of the accused. The death of the deceased Malluri Shaik Riyajunnisa took place on 19.12.2010 i.e. within a span of one year one month from the date of marriage.
P.W.1 - Shaik Syed Lal, testified about the payment of dowry besides presentation of other articles worth Rs.1,00,000/- as per their religious custom, which are known as "Jahaz" articles. The deceased Malluri Shaik Riyajunnisa was physically MSM,J and BKM,J CrlAs_922 and 1198_2012 36 weak as her marriage was performed at the age of 17 years and after delivery of pre-matured male child, she suffered heavy bleeding. Prior to marriage, accused No.2 took P.W.2 - Shaik Jaffarvali, father and Shaik Reddy Bee, mother deceased Malluri Shaik Riyajunnisa to Rayachoti and purchased gold ornaments worth Rs.1,98,000/- for presentation of the same at the marriage of Malluri Shaik Riyajunnisa. Chandra Haram, Silver anklet chains, Silver toe-rings etc., were purchased by accused No.2. P.W.1 admitted that accused Nos.1 to 3 did not purchase any house site at Madanapalle two months after the marriage of accused No.1 with Malluri Shaik Riyajunnisa and they do not require Rs.16,00,000/- as referred in his examination-in-chief. Even if the admission referred in Ex.P.1 and examination-in- chief of P.W.1 are accepted, the demand for Rs.16,00,000/- was made two months after the marriage of accused No.1 with Malluri Shaik Riyajunnisa, so it relates back to 14.01.2010. Therefore, there is a gap between the death of Malluri Shaik Riyajunnisa and the alleged demand of Rs.16,00,000/- as additional dowry and there is no proximity between the alleged demand and death of Malluri Shaik Riyajunnisa. Even otherwise, after the said demand, she conceived and gave birth to a pre-matured male child during 7th month pregnancy. As such, there is no live link or proximity of time between the alleged demand of Rs.16,00,000/- and death of Malluri Shaik Riyajunnisa. When the prosecution failed to establish the live link or proximity between the death and the alleged demand, if alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman MSM,J and BKM,J CrlAs_922 and 1198_2012 37 concerned, it can safely be held that the deceased Malluri Shaik Riyajunnisa was not subjected to cruelty or harassment soon before her death by applying the principle laid down by the Apex Court in "Kaliyaperumal v. State of Tamil Nadu" and "Yashoda v. State of Madhya Pradesh" (referred above).
P.W.2 - Shaik Jaffarvali, father and P.W.3 - Shaik Imtiyaz, sister of the deceased Malluri Shaik Riyajunnisa respectively. They testified about the payment of Rs.2,25,000/- as dowry in cash besides presentation of Gold and other articles at the time of marriage of Malluri Shaik Riyajunnisa with accused No.1. It is also stated that accused No.1 demanded for payment of Rs.16,00,000/- for purpose of purchasing house site at Madanapalle over telephone and the date of demand was not spoken by P.W.2 to find out whether there is any live link between the alleged demand and death of Malluri Shaik Riyajunnisa. In the cross-examination of P.W.2, nothing was elicited to discredit the testimony of P.W.2 except suggesting that the accused were falsely implicated in the present case.
P.W.3 - Shaik Imtiyaz, sister of the deceased Malluri Shaik Riyajunnisa improved the case of the prosecution alleging that the accused did not provide nutritious food, but she is specific about payment of Rs.2,25,000/- as dowry and presentation of other items and that her parents went to Doha, Qatar two months after the marriage, from then the accused harassed Malluri Shaik Riyajunnisa and demanded Rs.16,00,000/- as additional dowry with an intention to purchase house site to construct a house etc., and that her parents did not pay Rs.16,00,000/-. In the cross-examination, she admitted that no MSM,J and BKM,J CrlAs_922 and 1198_2012 38 complaint was lodged with the police by either of the witnesses when the accused allegedly demanded Malluri Shaik Riyajunnisa for payment of Rs.16,00,000/- and subjected her to cruelty for her failure to meet the said demand.
Therefore, the evidence of P.W.3 is not specific as to the date of demand to find out the proximity between the death of Malluri Shaik Riyajunnisa and the alleged demand. Similarly, P.W.4 - Shaik Firoz is the junior paternal aunt of Malluri Shaik Riyajunnisa by courtesy who testified about the payment of Rs.2,25,000/- and presentation of other articles. She used to look after the welfare of Malluri Shaik Riyajunnisa and that after the parents of the deceased left to Qatar, accused No.1 demanded Rs.16,00,000/- for purchase of house site. Her evidence is also not specific as to the date of demand of Rs.16,00,000/- and harassment of deceased by accused No.1 or accused Nos.2 and 3.
More curiously, in the cross-examination, P.W.4 admitted that she did not visit the house of the deceased Malluri Shaik Riyajunnisa one month prior to her death. Therefore, she had no knowledge about the demand made by accused No.1 or any other accused for payment of dowry and subjecting the deceased Malluri Shaik Riyajunnisa to harassment and cruelty for her failure to meet the illegal demand atleast within one month. Hence, the material on record is sufficient to conclude that there is no proximity of time or live link between the alleged demand and death of the deceased Malluri Shaik Riyajunnisa. Hence, by applying the law laid down by the Apex Court in "Kaliyaperumal v. State of Tamil Nadu" and "Yashoda v.
MSM,J and BKM,J CrlAs_922 and 1198_2012 39 State of Madhya Pradesh" (referred above), it is difficult to conclude that it was dowry death punishable under Section 304-B of I.P.C. On the other hand, facts on hand are sufficient to conclude that the incident of cruelty is earlier in time and has become stale enough not to disturb mental equilibrium of Malluri Shaik Riyajunnisa. Hence, the alleged demand, immediately two months after the marriage, for payment of Rs.16,00,000/- and subjecting her to cruelty is inconsequential. Thereby, the prosecution miserably failed to establish one of the main ingredients to constitute offence punishable under Section 304-B of I.P.C. But the trial Court on erroneous appreciation of evidence came to the conclusion that accused No.1 committed offence punishable under Section 304-B of I.P.C. without recording any finding as to the proximity of time between the alleged harassment for failure to meet the demand of dowry of Rs.16,00,000/- and death of the deceased Malluri Shaik Riyajunnisa. The trial Court also failed to consider the evidence on record with reference to the law laid down by the Apex Court in "State of Andhra Pradesh v. M.Madhusudhan Rao13", wherein it was held that harassment simpliciter is not cruelty, unless committed for purpose of coercing a woman or any other person related to her to meet an unlawful demand for property and in "Tarsem Singh vs. State of Punjab14" it was held that one of the essential ingredients to constitute dowry death in Section 304-B of I.P.C. is that woman must have been soon before her death subjected to cruelty or harassment, committed an error in convicting accused No.1 for 13 2008 (2) ALD (Cri.) 917 (SC) 14 2009 (1) ALD (Cri.) 252 (SC) MSM,J and BKM,J CrlAs_922 and 1198_2012 40 the offence punishable under Section 304-B of I.P.C. As observed in the earlier paragraphs, the death of Malluri Shaik Riyajunnisa is homicidal death, but, the Trial Court found the accused not guilty for the offence punishable under Section 302 I.P.C. In the absence of any separate appeal against the acquittal of Accused No.1, this Court will not disturb the finding already recorded. Hence, the finding of the trial Court is set aside while holding that the prosecution miserably failed to establish by cogent and satisfactory evidence that accused No.1 committed offence punishable under Section 304-B of I.P.C. Consequently, accused No.1 is acquitted for the offence punishable under Section 304-B of I.P.C.
Consistent evidence on record is clear that accused No.1 received Rs.2,25,000/- as dowry at the time of marriage besides other articles presented at the time of marriage. The word "dowry" is defined under Section 2 of the Dowry Prohibition Act, it does not include "Jahaz" articles since they are customary in Muslim religion. Therefore, receipt of Rs.2,25,000/- alone constitute dowry. Mere receipt of dowry is not sufficient to constitute an offence punishable under Section 498-A of I.P.C. If accused subjected his wife or daughter-in-law for her failure to meet the illegal demand for payment of dowry to cruelty either physical or mental, which constitutes an offence punishable under Section 498-A of I.P.C. It is evident from the material on record, more particularly, the oral evidence of P.Ws.1 to 3 and 4 that the deceased Malluri Shaik Riyajunnisa was subjected to cruelty for her failure to meet the illegal demand for payment of Rs.16,00,000/- to purchase house site at Madanapalle after two MSM,J and BKM,J CrlAs_922 and 1198_2012 41 months from the date of marriage and failure to provide food, not allowing her to contact anybody constitutes both physical and mental cruelty within the meaning of cruelty as per explanation to Section 498-A of I.P.C. According to it, any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman, constitutes an offence punishable under Section 498-A of I.P.C.
In the facts of the present case, the evidence on record would disclose that she was not allowed to contact any of the neighbours including relatives i.e. P.Ws.1, 3 and 4 though her parents are residing at Doha, Qatar. Such wilful conduct amounts to mental cruelty. Similarly, failure of the accused to provide sufficient food to Malluri Shaik Riyajunnisa would affect the life and health of the deceased also constitutes cruelty within the ambit of Section 498-A of I.P.C. The evidence on record was not shattered in the lengthy cross-examination of witnesses to discredit the testimony of P.Ws.1 to 4. Therefore, the trial Court rightly found accused No.1 guilty for the offence punishable under Section 498-A of I.P.C. as the deceased Malluri Shaik Riyajunnisa was subjected to cruelty for her failure to meet the illegal demand of Rs.16,00,000/- as demanded by accused No.1 alone.
Section 4 of the D.P.Act provides penalty for demanding dowry, which is as follows:
"If any person, after the commencement of this Act, demands directly or indirectly, from the parents or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment which may extend to six months, or with fine which may extend to Rs.5,000/-, or with both."
MSM,J and BKM,J CrlAs_922 and 1198_2012 42 In view of our foregoing discussion, no further discussion is required regarding the offence punishable under Section 4 of the D.P.Act. Therefore, the trial Court rightly found accused No.1 guilty for the offence punishable under Section 4 of the D.P.Act, as the undisputed facts established that P.W.2 paid Rs.2,25,000/- as dowry to Accused No.1 on his demand.
So far as accused Nos.2 and 3 are concerned, they are residing at Madanapalle, which is far-off place to the scene of offence, hence, the question of accused Nos.2 and 3 subjecting the deceased Malluri Shaik Riyajunnisa to cruelty cannot be accepted. Therefore, the acquittal of accused Nos.2 and 3 for the offence punishable under Sections 498-A, 304-B and 302 of I.P.C. and under Sections 3 and 4 of the D.P.Act cannot be disturbed even after reappraisal of entire evidence.
In view of our foregoing discussion, the conviction and sentence passed against accused No.1 for the offence punishable under Sections 498-A of I.P.C. and under Section 4 of the D.P.Act are hereby confirmed while setting aside the conviction and sentence recorded against accused No.1 for the offence punishable under Section 304-B of I.P.C. Accordingly, accused No.1 is acquitted for the offence punishable under Section 304-B of I.P.C. Further, the acquittal of accused Nos.2 and 3 for the offence punishable under Sections 304-B and 498-A of I.P.C. and under Sections 3 and 4 of the D.P.Act is hereby confirmed.
In the result, the criminal appeal No.922 of 2012 is allowed- in-part. The calendar and judgment dated 05.09.2012 passed in Sessions Case No.108 of 2012 by the VII Additional District and Sessions Judge, Madanapalle, against accused No.1 for the MSM,J and BKM,J CrlAs_922 and 1198_2012 43 offences punishable under Section 498-A of I.P.C. and under Section 4 of the D.P.Act are hereby affirmed, while setting aside the conviction and sentence passed against accused No.1 for the offence punishable under Section 304-B of I.P.C. and accused No.1 is acquitted for the offence punishable under Section 304-B of I.P.C. However, the Criminal Appeal No.1198 of 2012 is dismissed confirming the acquittal of accused Nos.2 and 3 recorded in Sessions Case No.108 of 2012 by the VII Additional District and Sessions Judge, Madanapalle, for the offence punishable under Sections 304-B and 498-A of I.P.C. and under Sections 3 and 4 of the D.P.Act.
Consequently, miscellaneous applications pending if any, shall stand closed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY ______________________________ JUSTICE B.KRISHNA MOHAN 27.07.2020 Ksp