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2001 DIGILAW 1554 (AP)

MALYALA VISHWANATHA RAO v. State Of A. P.

2001-11-28

D.S.R.VERMA

body2001
D. S. R. VARMA, J. ( 1 ) THE appeal is directed against the judgment dated 11-2-1997 of the trial Court convicting the sole accused- appellant for the offences punishable under sections 304-B, 306 and 498-A of the Indian penal Code. By the said judgment, the accused-appellant was sentenced to undergo rigorous imprisonment for a period of ten years for the offence under Section 304-B ipc, to suffer rigorous imprisonment for a period of ten years and to pay a fine of rs. 10,000/-, in default, to suffer rigorous imprisonment for a period of one year for the offence under Section 306 IPC and to suffer rigorous imprisonment for a period of three years and to pay a fine of Rs. 5,000/-, in default to suffer simple imprisonment for a period of six months for the offence under Section 498-A IPC. All the above said sentences were directed to run concurrently. ( 2 ) THE case of the prosecution in brief is, that the deceased Sunanda, who is the wife of the accused-appellant, committed suicide due to harassment meted out to her at the hands of her husband/ accused by demanding dowry. At the time of marriage on 5-1-1985, the accused was paid Rs. 50,000/- dowry and three tholas of gold ornaments and 10 tholas of silver ornaments were given to the deceased sunanda by her father, PW1. After marriage, the deceased and the accused lived happily for sometime and thereafter the accused started demanding more amounts from her parents and used to beat her on several occasions. On this demand, PW1 paid rs. 12,000/- in the year 1986. Again on 4-5-1990 the accused wrote a letter demanding Rs. 50,000/- and threatened pw1 that if the amount was not paid, the deceased would be continuously beaten. Due to the said beating and also the unbearable harassment, the deceased left the company of the accused. Then the accused got issued a legal notice on PW1. Later on, the accused through mediation by elders joined the deceased Sunanda. Again the accused started beating frequently, for which the deceased wrote many letters to her father about the inhuman harassment meted out to her at the hands of the accused. Finally, she committed suicide by pouring kerosene on her body and set fire to herself. ( 3 ) IN order to prove the charges, the prosecution examined PWs. 1 to 13 and marked Exs. Finally, she committed suicide by pouring kerosene on her body and set fire to herself. ( 3 ) IN order to prove the charges, the prosecution examined PWs. 1 to 13 and marked Exs. P1 to P39. Nobody was examined on behalf of the defence. ( 4 ) THE evidence in brief is that, PW1-the father of the deceased stated that the accused used to demand money through his daughter even after the marriage and accordingly the accused humiliated her for which the deceased wrote so many letters and finally she was fed up with the harassment of the accused and committed suicide. PW2 is the nephew of the deceased and he corroborated the evidence of PW1. He further stated that at the request of PW1 he gathered the elders of the village and they questioned the accused about his behaviour towards the deceased for which the accused pleaded guilty. He further stated that the accused beat the deceased in his presence at the tonsure ceremony of PW1 s brother s son at Nizamabad and PW1 was also beaten by the accused. ( 5 ) PW3 is another daughter of PW1 and the sister of the deceased, who also corroborated the evidence of PW1. She also deposed about the harassment of the accused towards the deceased at the time of tonsure ceremony of PW1 s brother s son at Nizamabad. PW4 is a child witness and the daughter of the accused and the deceased, who deposed that she witnessed many times her father beating her sister as well as her mother (the deceased) in her presence. ( 6 ) PW5 is the Sarpanch of Yellareddipet, whose evidence was to the effect that PWs. 1 and 2 referred the dispute to him with regard to the conduct of the accused and the accused admitted his guilt and in that connection he executed an undertaking letter also. PW6 is the Upa- sarpanch of the same village and he corroborated the evidence of PW5 to some extent. However, he was treated hostile. ( 7 ) PW7 is the landlord of the house where the deceased lived along with the accused. He deposed to the effect that the accused used to beat the deceased and create nuisance in the house by quarrelling with his deceased wife regularly. However, he was treated hostile. ( 7 ) PW7 is the landlord of the house where the deceased lived along with the accused. He deposed to the effect that the accused used to beat the deceased and create nuisance in the house by quarrelling with his deceased wife regularly. ( 8 ) PW13 is the Scientific Officer, Forensic Science Laboratory, Hyderabad, who deposed that he verified and compared the handwriting letter alleged to have been written by the accused to the deceased with the admitted handwritings and opined that the above said disputed letter was in the handwriting of the same person who has written the admitted handwritings. But, at this juncture it has to be noted that these i admitted writings were not obtained before the Court. Therefore, the evidence of PW13 with regard to the admitted writings of the accused need not be taken into account. The letter said to have been written by the accused in Ex. P9 and the specimen letters in the handwriting of the accused are Exs. P19 to P23. ( 9 ) THE trial Court upon appreciation of the facts and circumstances and also the material evidence on record, found the accused guilty of the offences as stated above. ( 10 ) FIRST of all, it is necessary to deal with the offences said to have been committed by the appellant-accused under sections 304-B and 306 IPC. ( 11 ) IN this regard, it has to be noted that the marriage of the deceased with the accused-appellant was performed on 1-5-1985 and the death of the deceased took place on 6-8-1994, which means that the death of the deceased had taken place after a lapse of seven years. A reading of Section 304-B IPC makes it clear that where the death of the woman is caused by any burns or bodily injury otherwise than in normal circumstances within seven years of her marriage and if it is shown that soon before her death she was subjected to cruelty or harassment, such death shall be called as dowry death. From the above, it is further clear that in order to make out a case under Section 304-B IPC, one of the essential requisites is that the death of the deceased should have taken place within seven years from the date of marriage. From the above, it is further clear that in order to make out a case under Section 304-B IPC, one of the essential requisites is that the death of the deceased should have taken place within seven years from the date of marriage. In the instant case, obviously the death took place after a period of about 8 years. Therefore, prima facie, Section 304-B IPC is not attracted and the presumption under Section 113-B can be invoked only in a case where the death had taken place within seven years. Therefore, the trial Court was apparently wrong in giving a finding that the accused was responsible for the death of the deceased and be convicted for the offence under section 304-B IPC and accordingly the conviction and sentence recorded by the trial Court against the accused under section 304-B IPC is liable to be set aside and it is accordingly set aside. ( 12 ) COMING to the conviction and sentence recorded under Section 306 IPC, it is pertinent to notice the ingredients of section 107 IPC, which read as follows:"107. Abetment of a thing : A person abets the doing of a thing, who first : Instigates any person to do that thing; or, secondly : Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or thirdly : Intentionally aids, by any act or illegal omission, the doing of that thing. " ( 13 ) NONE of the ingredients of Section 107 IPC are present in the instant case. Further, as per Section 113-A of the indian Evidence Act, again the essential requisite is that the offence should have been taken place within seven years from the date of the marriage. Again, obviously here is a case where the death had taken place after seven years of the marriage. Therefore, I am of the view that neither the presumption under Section 113-A of the indian Evidence Act can be drawn nor the ingredients of Section 107 IPC are satisfied. Therefore, the finding of the trial court with regard to the conviction and sentence imposed upon the appellant-accused for the offence under Section 306 IPC is palpably not in accordance with law. Therefore, the finding of the trial court with regard to the conviction and sentence imposed upon the appellant-accused for the offence under Section 306 IPC is palpably not in accordance with law. Accordingly, the conviction and sentence recorded by the trial Court against the accused-appellant of the offence under section 306 IPC should also be set aside and it is accordingly set aside. The accused is entitled to the refund of Rs. 10,000/- which he is said to have deposited as fine before the Court below. ( 14 ) NOW the question that falls for consideration is whether on the basis of evidence on record, the accused is liable for any offence particularly under Section 498-AIPC. ( 15 ) PWS. 1 to 4 in one voice deposed that the accused had lived with the deceased happily for some time soon after the marriage and thereafter started demanding additional amount of Rs. 50,000/ -. In fact, already an amount of Rs. 12,000/- was paid by PW1 under the compelling circumstances and that the deceased was being beaten black and blue on several occasions and the accused was using filthy and unutterable language against PW1 before the deceased. So, the oral evidence is quite consistent with each other with regard to the harassment and also the demand of additional dowry. In fact, PW4, who is the daughter of the deceased, herself spoke about the harassment of her deceased mother at the hands of her own father. ( 16 ) IT is also on record that the deceased addressed some letters to PW1 during 24-4-1990 and 1-10-1993. Those letters were marked through PW1 as Exs. P5 to P8, P10 and P11. A perusal of those letters would only reveal the anguish of the deceased about the various incidents and methods of harassment caused by the appellant. The said harassment not only includes demand of additional dowry but also the filthiest possible language directed against PW1. Those exhibits would further reveal that the accused had uttered many times that he would kill the deceased and also his daughters if necessary and if his demand was not met with by PW1. The said harassment not only includes demand of additional dowry but also the filthiest possible language directed against PW1. Those exhibits would further reveal that the accused had uttered many times that he would kill the deceased and also his daughters if necessary and if his demand was not met with by PW1. Therefore, it is clearly established from these letters that the accused had been subjecting the deceased to both physical and mental agony, at least, demonstrably from the year 1990 till 1993 and the death had taken place for 10 months after the last letter was addressed by the deceased. ( 17 ) THE learned Counsel appearing for the appellant-accused submits that there was no harassment soon before the death of the deceased. This submission is not sustainable, because the letters exhibited are only tokens, which would demonstrate the attitude or harassment on the part of the accused. Just because the last letter was addressed by the deceased in the year 1993, that does not mean that a presumption can be drawn that the accused had been taking care of the welfare of the deceased subsequent to that. Further, a reading of section 498-A IPC also does not indicate that any such condition with regard to the harassment soon before the death of the deceased be proved. What all to be seen is, whether it can safely be inferred from the past established conduct of the accused, that the deceased was being subjected to harassment for variety of reasons including the demand of dowry and the same is whether sufficient to cause mental and physical agony to the deceased. The exhibits referred to above do again corroborate the oral evidence of PWs. 1 to 5 in this regard. ( 18 ) THEREFORE, from the above evidence on record, I am of the considered view that the accused can safely be connected with the offence punishable under Section 498-A ipc though not under Sections 304-B and 306 IPC. Accordingly I hold that the accused shall be convicted for the offence punishable under Section 498-A IPC and he is liable to be sentenced for the said offence. ( 19 ) THE next question is the qunatum of sentence. The trial Court had imposed the sentence of three years and a fine of rs. 5,000/- for the offence under Section 498-A IPC. ( 19 ) THE next question is the qunatum of sentence. The trial Court had imposed the sentence of three years and a fine of rs. 5,000/- for the offence under Section 498-A IPC. It is on record that the accused has three daughters. It is reported by the learned Counsel for the appellant that the eldest daughter is now studying I year intermediate, the 2nd daughter is studying vi Class and the 3rd daughter is in V Class. All the three daughters are now in the custody of PW1 - the maternal grandfather, who is a pensioner. The children of the accused and the deceased have no other support except the grandfather, who is aged. There must be somebody who should look after the welfare of the growing children. It is also reported by the learned Counsel for the appellant that the appellant has been taking care of the children by according financial support. He is a Registered Medical practitioner. If the accused-appellant is imprisoned for three years, the chances of continuity of sense of attachment between the children and the father would gradually diminish in all probability. The interest of the children and their safety in the society, in my view, is paramount. Further, during the course of imprisonment for three years, the three daughters who are just growing up and getting their senses may also be neglected in future. Such a possibility cannot be ruled out. Therefore, having regard to these circumstances, I am of the considered view that the sentence imposed against the accused has to be impressively cut down. Accordingly, I pass the order as under: ( 20 ) THE conviction and sentence recorded by the trial Court against the accused for the offences punishable under sections 304-B and 306 IPC are set aside and the fine amount of Rs. 10,000/- imposed by the trial Court for the offence under section 306 IPC, which the appellant-accused is said to have deposited, is directed to be refunded. ( 21 ) AS far as the offence under Section 498-A IPC is concerned, the sentence of imprisonment of three years recorded by the trial Court is reduced to a period of three months and the fine amount of rs. 5,000/- is reduced to Rs. 500/ -. However, the appellant-accused is directed to deposit a sum of Rs. 1,00,000/- under Section 357 cr. 5,000/- is reduced to Rs. 500/ -. However, the appellant-accused is directed to deposit a sum of Rs. 1,00,000/- under Section 357 cr. PC in favour of his three daughters and pw1, at the rate of Rs. 25. 000/- each. He shall deposit Rs. 25,000/- in favour of PW1 in the Savings Bank Account of PW1 and deposit Rs. 25,0007- each in favour of his three daughters in a fixed deposit for a term of 10 years by 31 st March, 2002, and report compliance to the Judicial First Class magistrate, Sircilla. In default, the conviction and sentence recorded by the trial Court for the offence under Section 498-A IPC shall stand confirmed. ( 22 ) THE appellant-accused is entitled to the refund of Rs. 4,500/- only after the compliance of earlier directions regarding the deposit of compensation. The children will be entitled to withdraw the amount after maturity of fixed deposits. ( 23 ) IT is made clear that while calculating the period of sentence of imprisonment of three months now imposed against the accused -appellant, set off shall be given to the period, which the accused had already undergone during the trial and during investigation. ( 24 ) AFTER undergoing the imprisonment, the appellant shall take care of his daughters in future like any other responsible father, as usual. ( 25 ) THE appeal is partly allowed to the extent indicated.