Devadasu Shyam Prasad v. State Of A.P., Rep By Public Prosecutor

THE HON'BLE SRI JUSTICE M.S. RAMACHANDRA RAO CRIMINAL APPEAL No.1850 of 2004 JUDGMENT:

This Criminal Appeal is filed challenging the judgment dt.09-08-2004 in S.C.No.136 of 2001 of the Assistant Sessions Judge at Sathupally convicting the appellants of offence punishable under Section 304-B IPC.

2.

The brief facts of the case are:

The marriage of one Devadasu Devakaruna (herein after referred to as "the deceased") was performed with 1st appellant in 1996 by her parents P.Ws.1 and 2. It is alleged that P.Ws.1 and 2 gave Rs.14,000/- as dowry and that Rs.1,000/- was due and could not be paid by them to accused on account of unavoidable circumstances. It is alleged that the deceased lead marital life with A1 and a son was born. It is alleged that subsequently, the 1st appellant/A-1 and his parents, who are appellant Nos.2 and 3 (A-2 and A-3) harassed the deceased mentally and physically for the balance dowry amount of Rs.1,000/- and necked her out from their house. It is further alleged that the matter was reported before elders who settled the matter and parents of deceased promised to pay the balance amount of Rs.

1,000/- within short period and asked the accused to look after the deceased properly. It is alleged that in spite of giving assurance, the accused again started harassing the deceased mentally and physically, because of which on the night of 14-10-1999 the deceased committed suicide by jumping into a tank on the outskirts of village of Rudrakshapalli and died. P.W.1 gave a report on 15-10-1999 at 15.00 hours, upon which P.W.12 registered Cr.No.100 of 1999 under Sections 498-A and 306 IPC and took up investigation.

prepared Ex.P-5 rough sketch of the scene of offence and got an inquest conducted through the Mandal Revenue Officer P.W.10, who prepared inquest report Ex.P-4 on 15-10-1999 by 5.30 p.m. Thereafter P.Ws.6 and 7 signed the inquest report. Thereafter postmortem on the dead body of the deceased was got conducted by P.Ws.8 and 11 on 16-10-1999. Ex.P-6 is the postmortem examination report and Ex.P-7 is the Final Opinion wherein it was opined that the deceased had died due to asphyxia and due to drowning.

3.

The Judicial Magistrate of First Class, Sathupally took cognizance of the offence under Section 304-B IPC and the matter was committed to the Court of Sessions and was numbered as S.C.No.136 of 2001. Thereafter it was made over to the Court of Assistant Sessions Judge at Sathupally, who framed charge under Section 304-B IPC against A-1 to A-3. When the charges were read over and explained to them in Telugu, they pleaded not guilty and claimed to be tried. 4.

During trial, P.Ws.1 to 12 were examined and Exs.P-1 to P10 were marked on behalf of prosecution. 5.

After closure of prosecution evidence, accused were examined under Section 313 Cr.P.C. and the incriminating material in the evidence of prosecution witnesses was put to them. They denied the prosecution evidence.

6.

By judgment dt.09-08-2004, the Court below convicted A-1 to A-3 of offence under Section 304-B IPC and sentenced them to undergo rigorous imprisonment for a period of 7 years. 7.

Challenging the same, this appeal is filed by A-1 to A-3. 8.

The learned counsel for appellants contended that there are

no specific allegations in the evidence of prosecution witnesses about any acts of cruelty committed by accused towards the deceased; that there were only general allegations of harassment towards the deceased without any specific acts of cruelty or harassment by appellants on the deceased being mentioned; assuming for the sake of argument that certain demands for balance of amount of dowry were made, mere making of such a demand, unless followed by an element of cruelty or harassment, would not attract the provisions of Section 304-B IPC. He further contended that P.W.

1 admitted that there were no toilets in the house of A-1 to A-3 where the deceased resided; for answering calls of nature, A-1 to A-3 as well as the deceased used to go outside their house to an open place near the tank in question, where the deceased was found dead; that it is possible that the deceased had accidentally fallen into the tank when she went to answer a call of nature and died there. He further contended that there is a delay in forwarding the F.I.R. by P.W.12 to the Magistrate and although the F.I.R. is alleged to have been dispatched on 15-10-1999 at 15.00 hours, it reached the Magistrate in the Court of Judicial Magistrate of First Class, Sathtupally on the next day at 10-30 a.m. although distance between the police station and the said Court is only 200 yards; this suggests that after due deliberations, the F.I.R.

was prepared to implicate the accused with a view to extract money from them. The learned counsel for appellants relied upon the decisions in Vipin Jaiswal Vs. State of Andhra Pradesh and Yallamanda Chand Basha and others Vs. State of Andhra Pradesh.

9.

The learned Public Prosecutor, on the other hand,

contended that the evidence on record establishes the guilt of accused beyond reasonable doubt and that the Court below has given cogent and valid reasons for convicting the accused, and there is no warrant to interfere with the findings of the Court below.

10.

According to the prosecution case, it was P.W.1, who lodged the report Ex.P-1 with police at 15.00 hours on 15-101999 but P.W.1, the father of deceased, stated that he came to know about the death of deceased on 15-10-1999 between 12 noon and 1 p.m. and his family was informed by one Babu of Rudrakshapalli about her death by falling in the tank. He stated that by the time he went to the tank, the body of the deceased was fished out from the tank. In chief-examination he stated that he gave Ex.P-1 report to police, but in cross-examination he stated that he did not know reading and writing and he did not know who scribed it. He stated that his thumb impression was no doubt found on Ex.P-1.

He stated that after he affixed his thumb impression, he handed over the same to elders, that it was with the elders and he did not know what happened to Ex.P-1 subsequently. He denied that he visited the police station and stated that he did not present any report to police. He claimed that he did not know the contents in Ex.P-1. He also stated in the cross-examination that he saw the dead body of his daughter in the tank at about 3 p.m. on 15-10-1999.

11.

This evidence of P.W.1 throws a doubt as to whether he is the one who handed over Ex.P-1 to police and about the timing of the knowledge to P.Ws.1 and 2 about the death of deceased. Even according to P.W.1, the dead body had to be fished out from the tank and this would have taken some time. According to

P.W.1, the police came to the tank at 5 p.m. and then only the dead body was taken out of the tank and P.W.1 claimed that he himself dragged the dead body of deceased to the shore of the tank. So if P.W.1 had seen the dead body of his daughter at 3 p.m. on 15-10-1999, he could not have given the report at 3 p.m. on the same day to police in the police station. Therefore, the receipt of Ex.P-1 report at 15.00 hours on 15-10-1999 by P.W.12 appears to be doubtful.

12.

That apart, in the charge sheet it is mentioned that the report Ex.P-1 was received on 16-10-1999 although Ex.P-1 is said to have been received according to P.W.12 at 15.00 hours on 15-10-1999. This discrepancy is not explained by prosecution. Moreover, the F.I.R. Ex.P-10 was submitted the Judicial Magistrate of First Class, Sathupally on 16-10-1999 at 10.30 a.m. even though the distance between the Police Station of Sathupally and the Court of Judicial Magistrate of First Class, Sathupally, as admitted by P.W.12, is only 200 yards. This delay in forwarding the F.I.R. to the Magistrate of 18 hours (15.00 hours on 15-10-1999 to 10.30 hours on 16-10-1999) gives rise to a suspicion that the contents of F.I.R. were probably concocted in this intervening period by police at the instance of P.Ws.1 and 2 to implicate the accused 13.

Although in Ex.P-1 there is an allegation that the deceased had died due to harassment made by A-1 to A-3 and they are responsible for her death, there are improvements in the evidence of P.Ws.1 to 3 that A-1 to A-3 had murdered the deceased and thrown her dead body into the tank. This also throws a doubt as to the veracity of the prosecution witnesses.

P.W.1 has stated that the total dowry was settled at Rs.15,000/- at the time of marriage of deceased with A-1, out of which they had paid Rs.14,000/- to A-1 and the balance of Rs.1,000/- remained to be paid, but the same was not paid to A-1. He also stated that the marriage took place in 1996 and later a male child was born to his daughter. He no doubt stated that his daughter was harassed by A-1 to A-3 for the balance amount of Rs.1,000/- because of which she died, but he admitted that prior to her death, he did not give any report to police stating that A-1 to A-3 were harassing his daughter by ill-treating her and demanding her to bring the balance dowry amount. He also stated that the deceased did not give any report at any time to police on those lines.

14.

P.W.2 also deposed in the similar manner. While P.W.1 had not mentioned anything about the period when harassment took place prior to the death of deceased, P.W.2 mentioned in her evidence that 3 days prior to her death, there was a demand for payment of Rs.1,000/-, the balance dowry by A-1 to A-3. In fact P.W.2 stated that she gave the report Ex.P-1 to police, which is belied by the evidence of P.W.12 who had deposed that it was P.W.1 who had given Ex.P-1. She also denied that neither herself nor her daughter, while alive, gave any report to police stating that A-1 to A-3 harassed her demanding to bring the balance dowry. It was suggested to both P.Ws.1 and 2 that in order to extort money from A-1 to A-3 they had made the allegation of dowry harassment.

15.

P.W.3 stated on the same lines as P.W.2, but claimed that the police had reduced his statement into writing and obtained his signature on it. This is contrary to Section 162(1) Cr.P.C.

which directs that no statement made by any person to a Police Officer in the course of an investigation shall, if reduced to writing, be signed by the person making it. He also stated that the contents of his statement were not read over to him by police. It was suggested to him that the deceased had died accidentally falling into the tank, but he denied it. 16.

P.W.4 is a resident of Rudrakshapalli, who stated in his evidence that A-1 to A-3 used to look after the deceased properly while she was alive. He claimed that he did not know P.W.1 gave any dowry amount to A-1 in connection with the marriage of deceased with A-1. He stated that on 15-10-1999 in the morning it was said in the village that the deceased died, and on coming to know of it, he went to the house of P.W.1 and informed him of the death of deceased. He stated that he did not know the reason for the death. He was declared as hostile and was cross-examined by the learned Additional Public Prosecutor. He denied that he stated to the police as in Ex.P-2. In Ex.P-2, a statement recorded under Section 161 Cr.P.C. by police, he is said to have alleged that the deceased died on account of harassment by A-1 to A-3 for dowry. 17.

P.W.5 is a resident of Gandhinagaram Village and he was working as a farm servant under L.W.10, a resident of Rudrakshapalli village. He claimed that he noticed the dead body of deceased in the tank but did not inform anybody of the said fact. He also denied that he was examined by police. He was declared as hostile and was cross-examined by the learned Additional Public Prosecutor. He denied to have stated to the

police as in Ex.P-3. Ex.P-3 is statement of this witness recorded by police under Section 161 Cr.P.C. where he is alleged to have stated that when he went on 15-10-199 to the tank to answer call of nature, he found a saree and chappal on the bund, which he recognized to be belonging to the deceased and that he informed the same to one Immanuel.

18.

P.W.6 is a witness at the inquest and had signed Ex.P-4 inquest report. He stated that he did not know the contents of Ex.P-4. He claimed that deceased was his daughter by courtesy. 19.

P.W.7 is another witness to the inquest report Ex.P-4. She claimed that she noticed blood at the nostrils of deceased and also impressions of beating on the back of the body and marks around her neck. Ex.P-6 postmortem report as well as Ex.P-7 final opinion of the doctors, who performed postmortem, do not mention the injuries mentioned by P.W.7. Even P.W.8, one of the doctors who performed postmortem categorically stated that there were no external injuries or marks on the body of deceased. Her evidence is corroborated by P.W.11, another doctor who also stated that there were no external injuries on the body of deceased. In view of the evidence of P.Ws.8 and 11, and Exs.P-6 and P-7, it is not possible to believe the evidence of P.W.7 that there were external injuries on the body of deceased. 20.

Section 304-B States :

"304-B. Dowry death:- (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to

have caused her death.

Explanation:-For the purposes of this sub-section, "dowry" shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."

21.

The ingredients that are required to be provide in a case under Section 304-B IPC were identified by the Hon'ble Supreme Court in M.Srinivasulu Vs. State of A.P., and the following were enlisted:

"(i) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance. (ii) Such a death should have occurred within seven years of her marriage (iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband.

(iv) Such cruelty or harassment should be for or in connection with demand of dowry.

(v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death."

22.

The evidence of the prosecution witnesses referred to above indicates that A-1 had married the deceased in 1996 and out of the total amount of Rs.15,000/-, only Rs.14,000/- was paid and the balance of Rs.1,000/- was unpaid and because of this, the accused had harassed the deceased and caused her death. P.W.1 had only stated that A-1 to A-3 had become hostile towards the deceased and had sent her to their house and he sent her back to the house of A-1 to A-3 and consoled that he would repay the amount, and told the accused that he would repay the amount within short time. This incident was adverted to by both P.ws.2 and 3, but no specific acts of cruelty or

harassment are mentioned by prosecution witnesses P.Ws.1 to 3.

23.

The Supreme Court of India in Vipin Jaiswal (1 supra) held that the essential ingredients of offence under Section 304-B IPC is that accused, had subjected the deceased to cruelty as defined in Explanation to Section 498-A IPC. It held that for the Court to draw the presumption under Section 113B of the Evidence Act, 1872, the prosecution must show that the accused had caused dowry death as defined in Section 304-B IPC and the prosecution has to prove besides the demand of dowry, harassment or cruelty caused by the accused to the deceased soon before her death. The Supreme Court in the said case acquitted the accused of charge under Section 498-A r/w 304-B IPC on the ground that only general allegations of harassment were made by accused towards the deceased and specific acts of cruelty or harassment by accused on deceased were not spoken to by prosecution witnesses. The principle laid down in the said case squarely applies to the present case. 24.

In Yallamanda Chand Basha (2 supra), a Division Bench of this Court has held that where the prosecution witnesses had not mentioned any acts of cruelty or harassment and their evidence suggests that there were only demands of amounts from time to time which were being complied with, the provisions of Section 304-B IPC were not attracted. It held that mere making of demand of amounts, unless followed by an element of cruelty or harassment, would not attract Section 304-B IPC. In the absence of specific acts of cruelty or harassment, mere making demand of amounts would not attract the provisions of Section 304-B IPC.

25.

In the present case, since no acts of cruelty or harassment are specifically referred to by prosecution witnesses soon before her death, and having regard to the delay in forwarding the F.I.R. to the Magistrate by police and uncertainty about the time of discovery of the body of deceased, I am of the opinion that the prosecution had failed to establish that the accused had committed the offence under Section 304-B IPC beyond reasonable doubt.

26.

The Court below has not considered the evidence on record in this perspective. It erroneously held that even if the delay in sending the F.I.R. to the Magistrate is not explained, it would not be fatal to the prosecution case and quoted the judgment in Haripal Singh Vs. State of Haryana, wherein the delay was explained by stating that efforts were being made to save the life of the victim who was seriously injured. The said decision is not applicable to the present case wherein the deceased was discovered to have died. I do not agree with the finding of the Court below that the delay in sending the F.I.R. to the Court is not fatal to the prosecution case when there is no explanation for such delay. I also do not agree with the finding of the Court below that the evidence of P.Ws.

1 to 3, 6 to 11 proved that the accused had harassed the deceased for balance dowry amount and that because of this she herself drowned in the tank by committing suicide. General allegations of harassment made by prosecution witnesses are not sufficient to convict the accused under Section 304-B IPC as held in the above decisions.

rooms in the house of A-1 to A-3 and accidentally fell into the tank and died. The absence of any injuries on her body also suggests this prospect.

27.

In this view of the matter, I am of the opinion that the Court below had erroneously convicted the accused for the offence under Section 304-B IPC.

28.

Therefore, this Criminal Appeal is allowed, and the judgment dt.09-08-2004 in S.C.No.136 of 2001 of the Assistant Sessions Judge, Sathupally is set aside and the appellants/accused are acquitted of the charge under Section 304-B IPC. They are entitled to be set free and the bail bonds, if any executed by them shall stand cancelled.

29.

As a sequel, the miscellaneous petitions, if any pending, shall stand closed.

___________________________________ JUSTICE M.S. RAMACHANDRA RAO Date : 08-04-2015 Vsv/*