Andhra Pradesh High Court - Amravati
Pydipati Gangamma vs The State Of A .P. 3 Others on 6 February, 2020
Author: C.Praveen Kumar
Bench: C.Praveen Kumar
THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR
CRIMINAL REVISION CASE No.374 of 2008
ORDER:
Originally, A-1 to A-3 in Sessions Case No.308 of 2004 on the file of the learned V Additional Sessions Judge, Tirupati were tried for the offences punishable under Sections 498-A, 304-B, 302 read with 34 and 201 of the Indian Penal Code, 1860.
2. By its judgment, dated 23.01.2007, the learned V Additional Sessions Judge, Tirupati acquitted A-1 to A-3 for the offences punishable under Sections 498-A, 304-B, 302 read with 34 and 201 I.P.C. Challenging the same, the present Criminal Revision Case came to be filed under Sections 397 and 401 of the Code of Criminal Procedure, 1973 by the de facto complainant/P.W.1.
3. The case of the prosecution is that the marriage of A-1 with one V.Anuradha (hereinafter, referred to as "the deceased") took place on 16.11.2002 at Sorakayala Swamy Temple, Narayanavanam. After marriage, both of them lived happily for four months and thereafter, the accused used to ill-treat and harass the deceased for additional dowry of Rs.50,000/-, for purchase of a tractor. The deceased used to inform the same to her parents and brothers but they expressed their inability to pay the amount and used to send her back by consoling. It is said that 2 on 23.9.2003, the accused sent the deceased to the house of her parents to bring additional dowry of Rs.50,000/-. Accordingly, the deceased went to her parents' house and informed about the demand of additional dowry. She went back to the house of A-1 and informed him that her parents would talk to him regarding payment of additional dowry. It is said that on the intervening night of 23/24.9.2003, at about 1:30 A.M., the deceased committed suicide. The same was informed by A-2 to the parents of the deceased as A-2 is none other than the sister of the father of the deceased. On the basis of information received, the family members of the deceased came to the house of the accused and on suspicion, lodged a report which lead to registration of a case in Crime No.18 of 2003 for the offences punishable under Sections 498-A and 306 read with 34 I.P.C. The Sub-Inspector of Police along with his mediators proceeded to the hospital, conducted inquest over the dead body of the deceased in the presence of mediators. Ex.P-11 is the Inquest Report. Thereafter, the body was sent for post mortem examination. P.W.13, the Civil Assistant Surgeon, conducted autopsy over the dead body of the deceased and issued Ex.P-13 - Post Mortem Certificate. After completing the investigation, the police filed a charge sheet for the offences punishable under Sections 498-A, 306 and 201 read with 34 I.P.C. before the learned Judicial Magistrate of First Class, Nagari. 3
4. On appearance of the accused, copies of the documents, as required under Section 207 Cr.P.C., were supplied to the accused.
5. The case was committed to the Court of Sessions, Chittoor under Section 209 Cr.P.C. since the offences alleged were exclusively triable by the Court of Sessions. Accordingly, the same was made over to the Court of the learned V Additional Sessions Judge, Tirupati for trial and disposal in accordance with law wherein it came to be numbered as Sessions Case No.308 of 2004.
6. On appearance of the accused, charges under Sections 304-B, 498-A, 201 and 302 read with 34 I.P.C. came to be framed, read over and explained to them in Telugu to which, they pleaded not guilty and claimed to be tried.
7. To substantiate its case, the prosecution examined P.Ws.1 to 14 and got marked Exs.P-1 to P-20 and M.Os.1 to 3. After the closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C., with reference to the incriminating circumstances appearing against them in the evidence of the prosecution witnesses to which they denied. On behalf of the accused, D.W.1 was examined but no documents were marked.
8. Considering the evidence of P.Ws.1 to 5 and the evidence of the Doctor - P.W.13, the learned Sessions Judge acquitted all the 4 accused. Challenging the same, the present revision is filed by the informant.
9. Learned counsel for the revision petitioner mainly submits that since the death of the deceased took place within seven years of her marriage with A-1 and as the death was otherwise than under normal circumstances, presumption under Section 113B of the Indian Evidence Act, 1872 could be invoked to connect the accused with the offences punishable under Sections 304-B and 498-A I.P.C. He took me through the evidence of P.Ws.1 to 4 to show that the accused harassed the deceased for additional dowry of Rs.50,000/- for purchasing a tractor, which is consistent and corroborates the version of one another.
10. On the other hand, learned counsel for the accused would contend that the evidence available on record does not show that there was harassment soon before the death of the deceased and as such, the main ingredients to constitute an offence of demand of additional dowry is not made out. Even otherwise, he would contend that the amount demanded by the accused was for purchase of a tractor and the same cannot be treated as dowry. 5
11. The point that arises for consideration is:
"Whether the prosecution was able to make out a case against A-1 to A-3 for the offences punishable under Sections 498-A, 304-B, 201 and 302 read with 34 I.P.C.?"
12. POINT:-
First of all, it is to be noted that this is a revision against acquittal filed at the instance of P.W.1. In order to establish an offence under Section 304-B I.P.C., the prosecution has to establish that the death of the deceased was within seven years of her marriage; the death was otherwise than under normal circumstances and that there was a demand for dowry soon before her death. In the instant case, the death of the deceased took place within seven years of her marriage and the death was otherwise than under normal circumstances. In order to prove that it was otherwise than under normal circumstances and not a case of homicide, the evidence of the Doctor requires consideration.
13. P.W.13 is the Doctor who conducted post mortem examination over the dead body of the deceased. In the cross examination, she admits that she has not mentioned in Ex.P-14 that is a case of throttling. She admits that hyoid bone was in tact and the muscles inside the neck were also in tact. She further 6 admits that except the injuries on the neck, there were no other injuries on the dead body of the deceased. It is to be noted here that there was no thumb impressions on one side of the neck and also finger marks on the other side of the neck. Further, the Doctor did not find external injuries except blackish coloured injury below the cheek, which she took it as a scar mark and found it to be an abrasion. It is also to be noted here that according to Modi's Medical Jurisprudence, the distinguishing feature between a death by hanging and throttling is the presence of saliva. In case of hanging, normally, the saliva runs through the corner of the mouth and the same would be absent in the case of throttling. P.W.13 has not noted anything about saliva. Further, if really it was a case of throttling, definitely, there would be a fracture of hyoid bone, which is lacking. Even there is no fracture of larynx and trachea. P.W.13 admits that hyoid bone was in tact and there are no injuries under the neck muscles. In case of throttling, injury to the neck muscles is a common feature. Further, the carotid articles internal coats also get ruptured. Abrasions and echymosis round the edges of the ligature mark are also common. Ligature mark would be found around the neck. If fingers are used and neck is twisted, there would certainly be marks of thumb on one side of the neck and fingers on the other side of the neck. These symptoms were not noticed by P.W.13 in 7 the post mortem report. Having regard to the above findings, this Court is of the opinion that it is a case of suicide. The trial Court was right in holding that the death of the deceased was due to suicide and not a case of throttling.
14. At this stage, learned counsel for the revision petitioners would contend that even if it is not a case of suicide, still an offence punishable under Section 304-B I.P.C. is made out.
15. Now it has to be seen whether there was any harassment in connection with demand for dowry soon before the death of the deceased. P.Ws.1 to 5 are the witnesses examined by the prosecution to prove that there was demand for additional dowry and the said demand was soon before the death of the deceased. P.W.1, in her evidence, deposed that after marriage, the deceased joined the matrimonial home of A-1 and they lived happily for about four months. The house of accused and her house were situated in one and the same locality in Nindra Village. It is the case of prosecution that A-1 started harassing her daughter demanding cash of Rs.50,000/- for purchasing a tractor. P.W.1 in her evidence deposed that when the deceased came and requested her to pay the said amount, she expressed her inability. About 10 months after marriage, at about 7:30 P.M., the deceased came to her and stated that all the accused were demanding to pay 8 Rs.50,000/-. Then, she pacified the deceased and sent her to her matrimonial house stating that she would send her father on the next day. On the same day, at about 1:30 A.M., the deceased committed suicide. A-2 came to her house and informed that the deceased died.
16. P.W.2, who is the 1st wife of the father of the deceased, deposed in her evidence that after marriage, the deceased and A-1 lived happily for about four months. Subsequently, the accused started harassing her by demanding an amount of Rs.50,000/-. They expressed their inability to pay the same. Again, on one day, the deceased came to their house and expressed her fear in the hands of accused stating that the accused are demanding an amount of Rs.50,000/- and that they expressed their inability to pay the same. P.W.2 accompanied the deceased to her in-laws' house and dropped her there.
17. P.W.3, who is the brother of the deceased, in his evidence deposed on same lines as deposed by P.Ws.1 and 2 with regard to demand of dowry for purchase of tractor and they expressing their inability to pay the said amount. He further deposed that on 23.09.2003, the deceased died in the house of the accused and he observed some marks on the neck of the deceased. 9
18. P.W.4, who is another brother of the deceased, corroborated the evidence of P.Ws.1 to 3 and deposed that A-1 to A-3 were asking the deceased to bring a sum of Rs.50,000/- from her parents to purchase a tractor. P.W.4 asked the deceased to adjust with the accused stating that there is no money with them.
19. P.W.5 deposed that P.W.1 is his senior paternal aunt and P.Ws.3 and 4 are his cousins. The accused demanded the deceased to bring a sum of Rs.50,000/- from her parents. However, he deposed that he has no personal knowledge about the demand of dowry of Rs.50,000/- as he came to know about the demand of dowry through the parents of the deceased. The evidence of P.W.5 is hearsay and may not be much help to the prosecution.
20. The evidence of these witnesses, even assuming to be correct, would show that the accused was demanding the deceased to bring additional dowry of Rs.50,000/- for purchasing a tractor.
21. Before dealing with the issue, it has to be seen whether the offences alleged amount to an offence punishable under Section 304-B I.P.C., as the demand of additional dowry was for purchase of a tractor. It is to be noticed that this fact of demand of additional dowry of Rs.50,000/- was not mentioned by P.Ws.1 and 10 2 in their earlier statements. In fact, such a version was not reflected even in Ex.P-1. As seen from the record, P.W.1 lodged the report Ex.P-1 but did not mention that on the night of 23.09.2003, the deceased came to their house and told them that the accused were demanding additional dowry. Further, the evidence of the Investigation Officer also shows that P.Ws.1 and 2 did not speak before him when he recorded their statements under Section 161 Cr.P.C. that the accused demanded additional dowry of Rs.50,000/-. Therefore, the demand of additional dowry on 23.09.2003 by A-1 to A-3 was spoken to for the first time in the Court, which was only to show that there was harassment soon before the death of the deceased. Being a total improvement from what they have stated in their earlier statements, accepting this version would not arise.
22. Apart from that, even if it is believed that there was a demand of additional dowry of Rs.50,000/- for purchase of a tractor, since A-1 was a tractor driver, the same, in my view, may not fall within the meaning of 'dowry,' as defined under Sections 3 and 4 of the Dowry Prohibition Act, 1961. In Appasaheb and another Vs. State of Maharashtra's case1, the Hon'ble Apex Court held that where the accused demanded money for purchase of 1 A.I.R. 2007 SC 763 11 manure so as to do his agricultural operations or demanded money for the purpose of eking out his livelihood by doing business, the same cannot be treated as 'dowry' in terms of Section 3 of the Dowry Prohibition Act.
23. In view of the judgment of the Hon'ble Apex Court referred to above, it can be said that there was no demand for additional dowry soon before the death of the deceased. Apart from that, the evidence of P.Ws.1 and 2 would reveal that both of them did speak about A-1 repeatedly demanding additional dowry from the deceased. It has been found that even A-1 and the deceased liked each other and married. As stated, A-2 is none other than the paternal aunt of the deceased and sister of her father. If the demand of dowry is so unbearable and severe, nothing prevented P.Ws.1 and 2 to settle the disputes with A-2, who was living in a house, which was nearby. Further, as admitted by the witnesses, no dowry was paid to A-1 at the time of marriage being their nephew. They lived happily together for four months during which time, P.Ws.2 and 3 did not say anything against the accused. On the other hand, on 23.09.2003, when she accompanied, none of them spoke anything against the accused.
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24. Coming to the offence punishable under Section 498-A I.P.C., it would be useful to extract para No.40 of the impugned judgment, which reads as under:-
"According to me the evidence of PWs.1 to PW.4 is not sufficient to attract the definition of cruelty within the meaning of 498-A IPC and Sec., of Dowry Prohibition Act. It is in the evidence of PW.1 to PW.3 that A.1 is the nephew of the father of the deceased. A.1 and the deceased liked each other, married and lived for four months happily. It is also the evidence of PW.1 to PW.3 that the deceased went to her parents house for delivery of child and the deceased begot a girl who died. It is also the evidence of PW.1 to PW.3 that the deceased went to her husband A.1, four days before her death. On assessing the evidence of PW.1 to PW.3, the deceased was in her parents house for many months for delivery of her child. The deceased lived happily for four months in the house of A.1 and later she went to her parents house for delivery and returned to her matrimonial house only four days before her death. Ex.P.1 did not disclose that the deceased went to her parents house to ask for money of Rs.50,000/- as demanded by A.1. The evidence of PW.1 to PW.4 that the deceased came to their house in the night of 23.09.2003 and asked them to pay Rs.50,000/- to A.1 is a created story after the death of the deceased. The omission of the demand of additional dowry of Rs.50,000/- by A.1 to A.3 on the night of 23.09.2003 from the deceased in the report Ex.P1 is a material omission and it is fatal to the prosecution case. Moreover there are no injuries on the body of the deceased to speak that A.1 tortured the deceased for her failure to bring money from her parents. There is no whisper about any quarrel by the A.1 and the deceased on the night of 23.09.2003 soon before her death. The parents of the deceased are living in the same locality and they have not heard any quarrel between A.1 and the deceased soon before her death. Therefore, the evidence of PWs.1 to 4 is 13 not convincing and satisfaction to come to conclusion that A.1 ill-treated the deceased on the night of 23.09.2003 which compelled her to commit suicide. Perhaps the deceased is a sensitive woman and she might have resorted to such harsh steps of committing suicide. Therefore the evidence of PW.1 to PW.4 is not satisfactory and convincing that A.1 persistently demanded the deceased to bring Rs.50,000/- from her parents and ill-treated her to commits suicide. On bring Rs.50,000/- from her parents and ill-treated her to commit suicide. On assessing the evidence of PW.1 to PW.4 and the probabilities in the case, I am of the view that the evidence of PW.1 to PW.4 is not sufficient to find A.1 also guilty of the offences under Section 498-A, 304-B and Section 201 IPC".
In view of the inconsistencies and contradictions in the evidence of the witnesses and as the independent witness - P.W.5 did not support the case, the Court below was right in coming to a conclusion and acquitting the accused by extending benefit of doubt, which findings warrant no interference by this Court.
25. In K. Chinnaswamy Reddy vs State Of Andhra Pradesh2, the Hon'ble Apex Court held as under:-
"That it was open to a High Court in revision and at the instance of a private party to set aside an order of acquittal though the State might not have appealed. But such jurisdiction should be exercised only in exceptional cases, as where a glaring defect in the procedure or a manifest error of law leading to a flagrant miscarriage of justice has taken place. When s. 439(4) of the Code forbids the High Court from converting a finding of acquittal into one of conviction, it is not proper that the High Court should do the same indirectly by 2 AIR 1962 SC 1788 14 ordering a retrial. It was not possible to lay down the criteria for by which to judge such exceptional cases. It was, however, clear that the High Court would be justified in interfering in cases such as (1) where the trial court had wrongly shut out evidence sought to be adduced by the prosecution, (2) where the appeal court had wrongly held evidence admitted by the trial court to be inadmissible, (3) where material evidence has been overlooked either by the trial court or the court of appeal or, (4) where the acquittal was based on a compounding of the offence not permitted by law and cases similar to the above.
26. In State of Orissa Appellant v. Nakula Sahu and others Respondents3, the Hon'ble Apex Court held as under:
"9. So far as the first point is concerned, it is to be emphasised that although the revisional power of the High Court under S. 439 read with Sec. 435 of the Code the Criminal Procedure, 1898 is as wide as the power of Court of Appeal under S. 423 of the Code, it is now well settled that normally the jurisdiction of the High Court under Sec. 439 is to be exercised only in exceptional cases when there is a glaring defect in the procedure or there is a manifest error on a point of law which has consequently resulted in flagrant miscarriage of justice. Reference in this connection may be made to the decisions of this Court in Amar Chand Agarwalla v. Shanti Bose (1973) 4 SCC 10 : (AIR 1973 SC 799) and Akalu Ahir v. Ramdeo Ram (1973) 2 SCC 583 : (AIR 1973 SC 2145). In the latter case viz.
Akalu Ahir v. Ramdeo Ram (supra) this Court following its earlier decision in the Amar Chand Agarwalla v. Shanti Bose (supra) held that in spite of the wide language of S. 435 of the Code of Criminal Procedure, 1898 which empowered it to satisfy itself as to the correctness, legality or propriety of any findings, sentence or order recorded or passed by any inferior court situate within the limits of its jurisdiction and as to the regularity of any proceeding of such inferior court and in spite 3 AIR 1979 SUPREME COURT 663 15 of the fact that under S. 439 of the Code it can exercise inter alia the power conferred on a court of appeal under S. 423 of the Code the High Court is not expected to act under S. 435 or S. 439 as if it is hearing an appeal. The power being discretionary, it has to be exercised judiciously and not arbitrarily or lightly. Judicial discretion, as has often been said, means a discretion which in informed by tradition, methodised by analogy and disciplined by system".
27. It has been held by the Hon'ble Apex Court that in a revision against an acquittal at the instance of the informant, the scope of High Court is very limited and unless a strong case is made out showing that the judgment as perverse or contrary to law, interfering with the findings arrived at by the Court below would be improper and incorrect. Hence, I see no reason to interfere with the judgment, dated 23.01.2007, in Sessions Case No. 308 of 2004 passed by the learned V Additional Sessions Judge, Tirupati.
28. Accordingly, the Criminal Revision Case is dismissed.
Consequently, miscellaneous petitions pending, if any, in this Criminal Revision Case shall stand closed.
_______________________________ JUSTICE C.PRAVEEN KUMAR Date: 06.02.2020 AMD/SM 16 161 THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR CRIMINAL REVISION CASE No.374 of 2008 Date: 06.02.2020 AMD/SM