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2001 DIGILAW 1529 (AP)

SUNDARAPALLI SRINIVAS v. State Of A. P.

2001-11-23

D.S.R.VERMA

body2001
D. S. R. VARMA, J. ( 1 ) THIS criminal appeal is filed by the accused convict against the judgment of the learned III Additional sessions Judge, Kakinada rendered in sessions Case No. 301 of 1995 dated 9-5-1997 convicting him for the offence under section 304-B of IPC and sentencing him to undergo (a) seven years rigorous imprisonment for the offence under Section 304-B of IPC; (b) five years rigorous imprisonment and to pay a fine of Rs. 15,000/- in default to suffer simple imprisonment for one year for the offence under Section 3 of the Dowry prohibition Act; and (c) two years rigorous imprisonment and to pay a fine of Rs. 5,000/- in default to suffer simple imprisonment for three months for the offence under section 4 of the DOWRY PROHIBITION ACT, 1961. The learned Judge further directed the sentence of imprisonment to be run concurrently. Further out of the fine amount imposed under Section 3 of the Dowry prohibition Act an amount of Rs. 11,000/- was ordered to be paid to PWs. 1 and 2 the parents of the deceased. ( 2 ) THE case of the prosecution in brief is that the marriage between the appellant- accused and the deceased Sundarapalle nagalakshmi was performed on 21-2-1992 and at the time of marriage Rs. 11,000/- towards dowry and a gold ring as gift to the accused were presented by the father of the deceased. The couple lived at Mathuranagar, kakinada and within six months of the marriage the accused started harassing the deceased that dowry of Rs. 11,000/- given to him was insufficient and by stating further that he would have got Rs. 30,000/- and started demanding for payment of additional dowry amount. He started imputing the character of his wife stating that he was not responsible for her pregnancy. A dispute was raised before the elders i. e. , pws. 4 and 5 who admonished the accused and sent the deceased along with her father for delivery. Thereafter the deceased gave birth to a female child. The accused did not come to see his child. PW1 sent his deceased daughter along with PW3 who happened to be sister of the deceased. PW3 stayed at the house of the accused along with the deceased for one week. Ten days prior to the date of the offence the accused along with his wife went to the house of pws. PW1 sent his deceased daughter along with PW3 who happened to be sister of the deceased. PW3 stayed at the house of the accused along with the deceased for one week. Ten days prior to the date of the offence the accused along with his wife went to the house of pws. l and 2 at Thanuku and demanded for payment of Rs. 10,000/- and PW1 expressed his inability to pay that much amount. However he borrowed a sum of Rs. 10,000/- and gave it to the accused and after staying for a few days he went along with his deceased wife to his place. On 16-6-1994 the elder brother of the accused informed pw1 that his daughter committed suicide by hanging upon which PW1 went along with his wife, daughter to Kakinada and saw the dead body of his daughter and got suspicion upon the accused and gave a report to the police who registered the case under Section 304-B of IPC and Sections 3 and 4 of the DOWRY PROHIBITION ACT, 1961. The accused was arrested on 26-7-1994. ( 3 ) IN order to establish the guilt of the accused, the prosecution has examined pws. 1 to 15 and marked Exs. P1 to P15 and mos. 1 and 2. No witnesses were examined nor any documents were marked for the defence. ( 4 ) PWS. 1, 2 and 3 are the father, mother and sister of the deceased respectively. PWs. 4 and 5 are the village elders who arranged the marriage and also conducted conciliations subsequently during the disputes. PW6 is other village elder to whom PW1 reported about the conduct and ill-treatment of the accused towards the deceased daughter and who went along with PW1 and talked to the accused. PWs. 7 and 8 are the neighbours. PW8 who spoke about the fact that the accused used to ill- treat her and about harassment meted to her by the accused. PW14 is the doctor who conducted autopsy over the dead body of the deceased. The evidence of other witnesses is not very relevant. ( 5 ) IT is necessary to scan the evidence on record. PW1 the father of the deceased states that the deceased was given in marriage to the accused in the year 1992 and at the time of marriage he agreed to give Rs. The evidence of other witnesses is not very relevant. ( 5 ) IT is necessary to scan the evidence on record. PW1 the father of the deceased states that the deceased was given in marriage to the accused in the year 1992 and at the time of marriage he agreed to give Rs. 11,000/- as dowry and paid the same at the time of marriage. Apart from that, he gave her half sovereign of gold ring and other articles towards lanchanams. For about six months the couple lived happily. Later the accused started harassing the deceased and used to beat her on the ground that the dowry was inadequate and that there were some alliances for him offering rs. 30,000/ -. His daughter used to inform this harassment to her parents. He complained to the mediators PWs. 4 and 5, the accused did not give proper reply. His daughter became pregnant but the harassment persisted and even he used to suspect her pregnancy and used to allege that he was not responsible for her pregnancy. The deceased came to her parents house with six months pregnancy and informed her parents that the accused was suspecting her chastity and denying the paternity and also used to beat her. Thereupon he went to the accused along with FW. 6 to raise a dispute. The accused denied the responsibility for the pregnancy of the deceased and started using abusive language. Thereupon PW1 brought the deceased to their house. Subsequently she begot female child. Though the accused was informed he did not care to come and see his wife and daughter. Therefore the deceased remained at his house till the new born baby completed one year. Since there was no response even after some letters were addressed to the accused PWs. 2 and 3 took the deceased to the house of the accused. However, PW3 the sister of the deceased stayed along with the deceased for some time to help her. However, ten days prior to the death the deceased and the accused came to their house. The accused demanded payment of Rs. 10,000/- but he could give only one thousand rupees. Thereafter the accused and the deceased stayed for about a few days and left his house leaving baby with him. However, ten days prior to the death the deceased and the accused came to their house. The accused demanded payment of Rs. 10,000/- but he could give only one thousand rupees. Thereafter the accused and the deceased stayed for about a few days and left his house leaving baby with him. Later the elder brother of the accused came to his house along with somebody and informed that his daughter committed suicide by hanging. Immediately himself, PWs. 2, 3 and 4 along with others went to the house of the accused. They received message in the afternoon at 3 p. m. , and they reached the house of the accused at 11 p. m. and they found the deceased lying in the room with a cloth around her neck and also found number of injuries on her body and on seeing her body he got suspicion that it was not a case of suicide and gave a report to the police and Ex. Pl is the report. Exs. P2 to P8 are the photographs with negatives. In the cross-examination PW1 states that by the time they went to the house of the accused a constable who was present opened the door and asked to see the dead body. The accused was also present at his house along with his brothers and parents. He questioned the accused as to the presence of the injuries on the private parts of the deceased. The accused was working as driver in the floor mill and he will be going to his duty in the morning and would return to home at about 10 p. m. or 11 p. m. Except the above nothing else could be elicited from the cross-examination by the defence. ( 6 ) THE evidence of PW2 also runs on the same lines and corroborates the evidence of PW1 on all material aspects. ( 7 ) PW4 is the person, who arranged the marriage of the deceased with the accused. He further deposed that Rs. ( 6 ) THE evidence of PW2 also runs on the same lines and corroborates the evidence of PW1 on all material aspects. ( 7 ) PW4 is the person, who arranged the marriage of the deceased with the accused. He further deposed that Rs. 11,000/- was the dowry agreed and the same was paid at the time of the marriage and that after some time the accused started harassing the deceased on the ground of insufficiency of dowry and whenever he used to go to kakinada he used to visit the house of the accused and that the deceased used to inform him about the harassment by the accused and also beat her for demand of additional money. He used to advise the accused that the additional payment is not in the capacity of her parents. His further deposition is again in corroboration with the evidence of PW1 on all material aspects. PW5 is an independent witness who also was a party along with PW4 in fixing the marriage and further he supports the version of PW4 along with other witnesses without any deviation. PW6 is another caste elder to whom PW1 made a complaint about the conduct of the accused upon which he along with PWs. 1, 2, 4 and 5 went to the accused and asked both the accused and the deceased made a complaint against each other. PW1 complained about the harassment of the accused and after one week he came and told that the deceased was killed. ( 8 ) FROM the above oral evidence on record, it is clear that the deceased was being subjected to harassment for additional dowry persistently and also was being subjected to cruelty doubting her chastity. The fact of agreement with regard to the payment of dowry for a sum of Rs. 11,000/- and other articles is spoken to specifically not only by PWs. 1, 2, and 3 but also supported by mediators PWs. 4 and 5. Further the evidence of PWs. 1 to 3 was also corroborated in all material aspects by PWs. 4 and 5 who are independent witnesses. PW4 is a relative of PW1. He acted only as mediator over the marriage alliance between the accused and the deceased. PW5 is an independent person who acted as mediator to the alliance. 4 and 5. Further the evidence of PWs. 1 to 3 was also corroborated in all material aspects by PWs. 4 and 5 who are independent witnesses. PW4 is a relative of PW1. He acted only as mediator over the marriage alliance between the accused and the deceased. PW5 is an independent person who acted as mediator to the alliance. They spoke categorically about the agreement of quantum of dowry at the time of marriage and also payment of the same at the time of the marriage and also further spoke about the ill-treatment by the accused. In pursuance of the complaints received from PW1 and the deceased they as responsible persons being the mediators to the marriage and in the interest of both the deceased and the accused approached the accused and tried to give a quietus to the situation but there was no change in the attitude of the accused. Therefore, the entire evidence of PWs. l to 6 is consistent and corroborative with the evidence of each other on all material aspects. ( 9 ) NOW it is necessary to examine the evidence of the doctor PW14 who conducted autopsy and found the following injuries:" (1) Erossions caused by red ants are seen on many parts of the body, particularly on the front aspects of both the elbows. (2) A pressure abrasion of 40 cms in length with variation of 2 to 3-1/2 cms width is present on and below the thyroid cartilage going backwards horizontally and completely encircle the neck with a knot on the left side of the neck, 6 cms below the left ear. The base of the ligature mark is pale and the edges are abraded. On reflection of the skin over the neck, the tissues above and below the ligature mark are eachymosed, haemorrhagic spots are seen in the thyroid gland, larynx and tracheal mucosa congested. The above injuries are ante-mortem in nature. Ligaure material: One end of multi coloured polyester saree is tied around the neck with a knot on left side below the ear. The other end is free, which measures 396 cms from the knot, the part of the saree which encircles the neck is measuring 30 cms". The above injuries are ante-mortem in nature. Ligaure material: One end of multi coloured polyester saree is tied around the neck with a knot on left side below the ear. The other end is free, which measures 396 cms from the knot, the part of the saree which encircles the neck is measuring 30 cms". PW14 opined that the death of the deceased might have been caused on the night of 15/16-6-1994 as partly digested food found in the body and death might be 2 to 3 hours after she took food in the night and it was finally opined that the death was homicidal but not suicidal. ( 10 ) FROM the above evidence on record it is to be seen that admittedly the brother of the accused informed PW1 that the deceased had committed suicide by hanging but by the time PWs. 1, 2, 3 and other witnesses went to the scene of offence it was found that the body was lying on the floor with a saree tied to her neck with a knot tied. The conspicuous injury found was a pressure abrasion of 40 cms in length with variation of 2 to 3 cms width was present on and below the thyroid cartilage going backwards horizontally with a knot on the left side of the neck. ( 11 ) MR. C. Praveen Kumar, learned Counsel appearing for the appellant strenuously contended that it is a case of homicide as opined by the doctor and further as per the observation report Ex. P9 there is a gap between the roof and the wall of the house. The house is a singular room tenement and so there is a possibility by somebody to sneak in the gap of the roof and wall into the house and might have attempted to rape and committed the murder also. In such case, the accused appellant cannot be held responsible for the offence under Section 304-B IPC. He further contended that only in case of suicide section 304-B will be attracted because the death of the deceased person can be presumed under Section 113 of the Indian evidence Act to be a dowry death, when the demand of additional dowry and consequential harassment was successfully established. He further contended that only in case of suicide section 304-B will be attracted because the death of the deceased person can be presumed under Section 113 of the Indian evidence Act to be a dowry death, when the demand of additional dowry and consequential harassment was successfully established. According to him, in the instant case, as the doctor opined categorically that it is a case of homicidal death and the cause cannot directly be connected with the offence and he cannot be held to be responsible for the offence under section 304-B IPC. Illustratively he argues that though there was harassment for additional dowry, in the absence of the accused, if somebody sneaked into his house and committed murder of his wife the appellant cannot be held responsible for the offence under Section 304-B IPC because according to him, harassment is one aspect and the death is the other. In case where the death cannot directly be connected with the harassment and when the death could have been caused in a different manner by somebody Section 304-B IPC cannot be attracted. I cannot agree with this contention. Section 304-B IPC reads thus:"304-B: Dowry Death : (I) Where the death of a woman is caused by any burns or bodily injury or occurrence otherwise than under normal circumstances within seven years of her marriage and it is seen that 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 or such husband or relative shall be deemed to have caused her death. Explanation :for the purposes of this subsection, dowry shall have the same meaning as in Section 2 of the Dowry Prohibition act, 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. Explanation :for the purposes of this subsection, dowry shall have the same meaning as in Section 2 of the Dowry Prohibition act, 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. A reading of the said provision makes it very clear that the essential ingredients of the said section are (1) death of a woman shall be caused by any burns or bodily injuries; (2) or occurrence otherwise than under normal circumstances; (3) within seven years of the marriage; (4) lady subject to cruelty or harassment soon before her death by her husband or any relative; (5) and such cruelty or harassment must be in connection with any demand for dowry. The presence of the above ingredients would render a death of a married lady as dowry death. " ( 12 ) IN the instant case, as the doctor opined that the death of the deceased was homicidal thereby essentially implies that the death was because of bodily injuries as contemplated in the section. It is a death otherwise than under normal circumstances. ( 13 ) BROADLY, normal circumstances are that the wife and the husband must have been living together under the same roof, preceded by demand for additional dowry and consequent upon such harassment, if the wife dies because of any burns or other bodily injuries or committed suicide it can be brought into the fold of Section 304-B ipc. The expression otherwise than pnder normal circumstances read with the other expression or by bodily injury would indicate that Section 304-B IPC can be attracted not only in the case of suicide but also in the case of homicide depending upon the facts and circumstances. ( 14 ) THE strong circumstances against the accused in this present case are that admittedly the accused was living with the deceased in the same house since about a week or ten days. Earlier to that PWs. 1, 2, 3 and 4 brought the deceased and left her at the house of the accused and so the fact that the accused was living with the deceased in the same house cannot be denied. He was an employee somewhere and leaves the house in the morning and comes back at about 10 p. m. , in the night time. He was an employee somewhere and leaves the house in the morning and comes back at about 10 p. m. , in the night time. There is no proper explanation offered by the accused even during the examination under Section 313 Cr. PC examination that there was a scope for somebody to sneak into his house and commit the murder. This defence was taken only by way of putting some suggestions to the witnesses. ( 15 ) IN such case, the burden is heavily cast upon the accused to offer a proper explanation as to how that could have happened and should have led any oral evidence in order to establish his innocence. Admittedly the offence was committed on the intervening night of 15/16-6-1994. In such case the accused who normally comes back at about 10 p. m. , can reasonably be expected to be in the company of his deceased wife. In order to prove his innocence the accused ought to have stated specifically that he was not present at the time of offence in the house. Otherwise in the normal course the presumption is that the accused and the deceased being husband and wife are presumed to be in the company of each other particularly during night time. The contention of the learned counsel for the appellant is that there is scope for murder by somebody and hence it amounts to Section 302 IPC but not section 304-B of IPC. ( 16 ) FROM the entire cross-examination for the defence it could be seen that it is not the specific case of the defence that the accused was not at all present in the intervening night of 15/16-6-1994 and therefore he cannot be held responsible for the homicide death of the deceased and thereby could plead that could be either by suicide or homicide caused by somebody else and therefore he can make an attempt to detach the death of the deceased with that of the harassment. In other words it is essential for the accused in case of homicidal death to get himself detached from the responsibility of the murder in order to prove that the death was not in connection with the demand of additional dowry. To put in a different way the death must be in connection with the demand of dowry. In other words it is essential for the accused in case of homicidal death to get himself detached from the responsibility of the murder in order to prove that the death was not in connection with the demand of additional dowry. To put in a different way the death must be in connection with the demand of dowry. Therefore, it is essential for the accused to disconnect the cause of death with the demand of dowry. In the present case no attempt has been made by the defence or by the accused by offering any plausible explanation. Section 113 of the Indian evidence Act reads as follows:"113-B: Presumption as to dowry death : when the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. Explanation :for the purposes of this section "dowry death" shall have the same meaning as in Section 304-B of the Indian penal Code". A reading of the above provision indicates that it is sufficient if a woman had been subject to cruelty or harassment in connection with demand of dowry, soon before the death. This presumption under Section 113-B of the Indian Evidence Act is always rebuttable. This is a provision introduced in the Evidence Act by the Legislature only with reference to the Section 304-B IPC. Therefore, the general principle is that the burden of proof lies heavily on the accused by adducing any such oral or documentary evidence. ( 17 ) COMING to the facts of the case for a moment it is to be seen that the death of the deceased is on the intervening night of 15/16-6-1994. ( 18 ) THE other circumstance that was pointed out by the accused during the course of examination under Section 313 Cr. PC that he came to his house back at 10 p. m. , in the night and there was no response from inside. Therefore, he peeped inside from above the wall of the house and found the deceased hanging dead. Then with the help of neighbours he managed to open the door and brought the dead body on to the floor. Therefore, he peeped inside from above the wall of the house and found the deceased hanging dead. Then with the help of neighbours he managed to open the door and brought the dead body on to the floor. Except this no other evidence was let in by the accused in order to prove that he really called the neighbours and sought their help to bring down the hanging body of the deceased. In fact this issue need not be discussed for the simple reason that even if it was a suicide by the deceased the appellant cannot have an escape inasmuch the harassment for additional dowry amount has been successfully established, and as section 304-B read with Section 113-B of the Evidence Act would automatically come into play. ( 19 ) BUT it appears that the accused wanted to take the defence that his wife was murdered by somebody else and he is not a party to it and further since he was not a party to that and when there is a likelihood that a stranger could kill his wife, the same cannot be imputed to him. However, as already discussed there is no evidence contra on record on behalf of the accused to prove that he was not responsible for killing of the deceased and it was done only by some unknown person or persons. Further, it is to be noted that no property was lost after the death of the deceased nor the medical evidence do suggest that there was any rape. But it appears from the inquest report that there was physical violence applied against the deceased before she was strangulated. Therefore, all the above circumstances do suggest that violence against the deceased which resulted in the death was applied only by the accused. If that be the case, though it is a murder it amounts to cause of bodily injury occurred otherwise than in the normal circumstances as postulated under section 304-B IPC. ( 20 ) FOR the foregoing reasons, I am of the considered view that the accused alone is responsible for the death of the deceased and the same is connected with the demand of dowry. Accordingly I hold that the impugned judgment is based on material evidence on record. Hence I do not find any reason to interfere with the said finding of the lower Court. Accordingly I hold that the impugned judgment is based on material evidence on record. Hence I do not find any reason to interfere with the said finding of the lower Court. ( 21 ) IN the result, the criminal appeal is dismissed confirming the conviction and sentence recorded by the lower Court against the appellant accused.