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2003 DIGILAW 1377 (AP)

Mohd. Dowlath v. State Of A. P.

2003-11-07

K.C.BHANU

body2003
K. C. BHANU, J. ( 1 ) THIS appeal is directed against the judgment, dated 20-9-1999, (or 20-12-99) in S. C. No. 86/1996, on the file of V Additional Metropolitan Sessions Judge, hyderabad, whereby the learned Sessions judge found A-l and A-2 guilty and sentenced A-1 to suffer rigorous imprisonment for seven years under Section 304/304-B. IPC, A-l and A-2 to suffer rigorous imprisonment for two years each under Sections 498-A and 201, I. P. C. wlth a fine of Rs. 500. 00 each in default of payment of which to suffer simple imprisonment for three months each under Section 498a, I. P. C. with a direction to ruri thle substantive sen tences concurrently. ( 2 ) THE Prosecution case in brief is that the 2nd daughter of P. W. 2, Syada Tasleena shanaz, who was the deceased in this case, was given in marriage to A-l. A-2 is the mother of A-l. At the time of the marriage, the accused demanded Rs. 50,0007- cash and other articles, P. W. 2 paid a sum of Rs. 25,000. 00 and gave some household articles. Eight days after the marriage, A-l and A-2 started harassing the deceased on the pretext that the (deceased did not know domestic work. They beat her and abused her. One month thereafter,, the deceased came to her mother s house with marks of violence on her face and body. She told her mother that she was being daily beaten by A-1 and A-2 and demanding her to get Rs. 50,000. 00 and if she failed to bring the amount, they would kill her. On 24-1 -1995 A-1 came to the house of P. W. 2 and requested her to send the deceased to his house. P. W. 2 refused to send the deceased and asked A-l to bring his elders. He again came on the next day and persuaded P. W. 2 to send the deceased with him. He even threatened that if the deceased was not sent to his house, he would contract second marriage. Though P. W. 2 was not willing to send the deceased, the deceased expressed her willingness to go along with her husband. Accordingly the deceased went with her husband to her matrimonial house on 26-1- 1995. On 27-1-1995, the father pf A-1 along with a Constable came to the. house of P . Though P. W. 2 was not willing to send the deceased, the deceased expressed her willingness to go along with her husband. Accordingly the deceased went with her husband to her matrimonial house on 26-1- 1995. On 27-1-1995, the father pf A-1 along with a Constable came to the. house of P . W. 2 and informed her that the deceased died. P. W; 1 lodged Ex. P-l with the police. The police conducted investigation. The dead body was sent to post-mortem examination. After completion of investigation, a charge-sheet was flled. Charges under Sections 498-A 302 and 201,i. P. C. were framed. The accused denied their guilt and claimed to be tried. The Prosecution examined 18 witnesses and marked 20 documents, besides M. Os. 1 to 6. On appreciation of the evidence on record the learned sessions Judge convicted and sentenced the accused as aforesaid, aggrieved by which the accused preferred this appeal. ( 3 ) P. W. 13 is an inquest mediator when the Mandal Revenue Officer conducted inquest over the dead body of the deceased. As seen from Ex. P-7- inquest report, the cause of death was due to the injuries sustained by the deceased; P. W. 14 is the doctor who conducted autopsy over the dead body of the deceased and found as many as 26 injuries including contusions and abrasions. He opined that the cause of death was asphyxia due to pressure over the neck. He issued Ex. P-8 post-mortem certificate. The accused did not cross-examine this witness at all. Therefore, his evidence remained unchallenged. From the evidence on. record, it has been established beyond ,all reasonable doubt that the death of the deceased was homicidal in nature. ( 4 ) THE trial Court accepted the evidence of P. Ws. 2, 3, 7 and 15 and convicted and sentenced the accused as aforesaid. There is no direct evidence in this case. The entire case rests upon circumstantial evidence. The law as regards the circumstantial evidence is well settled by a catena of decisions of the apex Court. In State of Rajasthan v. Rajaram, 2003 AIR SCW 4097 : (2003 Cri lj3901) it has been held in paragraph 16 as follows: "a reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 : (1984 cri LJ 1738 ). In State of Rajasthan v. Rajaram, 2003 AIR SCW 4097 : (2003 Cri lj3901) it has been held in paragraph 16 as follows: "a reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 : (1984 cri LJ 1738 ). Therein, -while dealing with circumstantial evidence, it has been held that onus was on the prosecution to, prove that the chain is complete and the infirmity or lacuna in prosecution annot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be; fully established. They are: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive "nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. " ( 5 ) A1 was convicted under Section 304-B IPC in spite of the fact that there was no charge against him. The law with regard to the cases involving dowry death is also settled. The Apex Court in Kallyaperumal v. State of Tamil Nadu, 2003 AIR SCW 4387 : (2003 Cri LJ 4321) has held in Paragraph 5 as below : "a conjoint reading of Section 113-B of the Evidence Act and Section 304-B, IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the death occurring otherwise than in normal circumstances . The expression soon before is very relevant where Section 1-13-B of the Evidence Act and section 3o4-B, IPC art pressed into service. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the death occurring otherwise than in normal circumstances . The expression soon before is very relevant where Section 1-13-B of the Evidence Act and section 3o4-B, IPC art pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. soon before is a relative term and it would depend upon circumstances of each case and no straightjacket formula can be laid down as to what would Constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression soon before her death used in the substantive Section 304-B, IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression soon befpre is not defined. A reference to expression soon before used In Section 114, Illustration (a) of the Evidence Act is relevant. It lays down that a Court may presume that a man who is in the possession of goods soon after the theft, is either the thief has received the goods knowing them to be stolen, unless he can account for his possession. 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. ( 6 ) LEARNED counsel for the appellants contended that the conviction of A1 under section 304-B, IPC without specific charge is illegal. 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. ( 6 ) LEARNED counsel for the appellants contended that the conviction of A1 under section 304-B, IPC without specific charge is illegal. To support his contention, he relied upon a decision in Shamnsaheb M. Multtani v. State of Karnataka, 2001 SCC (Cri) 358 : 2001 Cri LJ 1075. In Paragraphs 31 and 34 it has been held as under : "now take the case of an accused who was called upon to defend only a charge under Section 302, IPC. The burden of proof never shifts on to Mm. It ever remains on the prosecution which has to prove the charge beyond all reasonable doubt. The said traditional legal concept remains unchanged even now. In such a case the accused can wait till the prosecution evidence is over and then to show that the prosecution has failed to make out the said offence against him. No compulsory presumption would go to the assistance of the prosecution in such a situation. If that be so, when an accused has no notice of the offence under Section 304-B, IPC, as he was defending a charge under Section 302, IPC,alone, would it not lead to agravemiscarriageof justice when he is alternatively convicted under Section 304-B, IPC and sentenced to the serious punishment prescribed thereunder, which mandates aminimum sentence of imprisonment for seven years. In such a situation, if the trial Court finds that the prosecution has failed to make out the case under Section 302, IPC, but the offence under Section 304-B, IPC has been made out, the Court has to call upon the accused to enter on his defence in respect of the said offence. Without affording such an opportunity to the accused, a conviction under Section 304-B, IPC would lead to real and serious miscarriage of justice. Without affording such an opportunity to the accused, a conviction under Section 304-B, IPC would lead to real and serious miscarriage of justice. Even if no such count was included in the charge, when the Court affords him an opportunity to discharge his burden by putting him to notice regarding the prima facie view of the court that he is liable to be convicted under section 304-B, IPC, unless he succeeds in disproving the presumption, it is possible for the Court to enter upon a conviction-of the said offence in the event of his failure to disprove the presumption. " ( 7 ) AS rightly contended by the learned counsel for the appellants, without framing charge under Section 304-B, IPC specifically, an accused cannot be convicted, because for the offence under this Section if the Prosecution proves that the death of the deceased is homicidal and she died within seven years of her marriage and was subjected to cruelty soon before her death, the burden shifts on to the accused to prove that he is not responsible for the death of the deceased. Therefore, at the threshold the contention of the learned counsel for the appellants can be accepted in view of the authoritative pronouncement of the Apex Court. ( 8 ) THE entire case rests upon the evidence of P. Ws. 2, 3, 7, 8 and 15, P. W. 2 is the mother and P. Ws. 3, 7 and 15 are brothers and P. W. 8 is the sister of the deceased. Thus, they are closely related to the deceased. But relationship is by itself no ground to disbelieve the evidence, if otherwise their evidence is trustworthy and reliable. P. W. 2 stated that the accused demanded Rs. 50,. 000. 00 and some other gold ornaments and she paid Rs. 25,000. 00 besides ornaments at the time of the marriage. Eight days after the marriage, both the accused started harassing and ill-treating the deceased on the pretext that she did not know domestic work. P. W. 2 arranged a dinner on the Occasion of the "first Friday Function". At that time, the deceased informed p. W. 2 that the accused were beating her. When P. W. 2 further enquired, the deceased told her that she was being beaten daily by al and A2 and they were demanding her to get Rs. 50,000. P. W. 2 arranged a dinner on the Occasion of the "first Friday Function". At that time, the deceased informed p. W. 2 that the accused were beating her. When P. W. 2 further enquired, the deceased told her that she was being beaten daily by al and A2 and they were demanding her to get Rs. 50,000. 00 and they threatened that they would kill her if she failed to bring that amount. About 15 days thereafter, the deceased came to the house of P. W. 2 with marks of violence on her face and body. On 24-1-1994 Al came to the house of P. W, 2 and requested her to send the deceased to his house, but P. W. 2 refused to send the deceased unless he brought elders. On the next day Al came again and compelled to her send the deceased. He threatened that he would contract second marriage if the deceased was not sent along with him. In spite of that P. W. 2 refused to send her daughter, but the deceased expressed her intention to go to the house of her husband. Accordingly the deceased was sent tp the house Of Al on 26-1-1995 along with asmathullah, the younger son of P. W. 2. On the next day, the father of A1 and a Constable came to her house and informed her that the deceased died. She went to the house of the accused and saw the dead body. ( 9 ) P. W. 3 stated that he was informed by his younger brother that the accused were demanding Rs. 15,000. 00 from the deceased and threatening that they would kill her. He also stated that the deceased came to the house with injuries on her face. On enquiry by P. W. 2, the deceased told her that the accused demanded her that she should bring Rs. lo,000. 00. P. Ws. 5, 7, 8 and 15 also stated in the same lines. They speak about the demand of Rs. 15,000. 00. Admittedly they were not present at the time of or immediately after the incident. Their evidence would only go to show there was motive for the accused to kill his wife, because he was threatening the deceased to get money. The evidence of these witnesses does not incriminate anything against A1 for the offence under Section 304, IPC. 15,000. 00. Admittedly they were not present at the time of or immediately after the incident. Their evidence would only go to show there was motive for the accused to kill his wife, because he was threatening the deceased to get money. The evidence of these witnesses does not incriminate anything against A1 for the offence under Section 304, IPC. ( 10 ) P. W. 1 is the person to whom the accused is alleged to have made an extrajudicial confession on the basis of which he lodged Ex. Pl complaint. But he didnot support the case of the Prosecution. Therefore, his evidence and the recitals in Ex. Pl cannot be used to incriminate anything against the accused. The learned Sessions Judge placed an implicit reliance on the recitals in ex. Pl. The learned Judge observed, "as already discussed in earlier paras the evidence of P. W. 1 and the panch witnesses is scrutinized and on scrutiny in order to arrive the truth it is established that the evidence of p. W. 1 though hostile is consistent with regard to the version of the para to the extent of fix. PI. . . . . ". There cannot be any dispute that the recitals in Ex. PI cannot be used for any purpose other than for contradiction or corroboration. Ex. P1 cannot be used as substantive evidence. ( 11 ) P. WS. 4 to 6 are projected as witnesses to speak about the incident. They did not support the case of the Prosecution. Nothing has been elicited in their cross-examination to connect the accused with the crime. P. Ws. 9 and 10 are mediators for the scene of observation report and rough sketch. They too did not support the Prosecution case. P. Ws. 11 and 12 are projected as witnesses to speak about the arrest of Al and his confession leading to certain recoveries. They also did not support the prosecution. P. W. 17 is the Mandal Revenue Officer who was examined to identify the signature of the Mandal Revenue Officer who conducted inquest over the dead body of the deceased. Except marking the inquest report, his evidence does not lead to any conclusion about the guilt of the accused. P. W. 18 is the Investigating Officer. He only deposed about the investigation conducted by him. Except marking the inquest report, his evidence does not lead to any conclusion about the guilt of the accused. P. W. 18 is the Investigating Officer. He only deposed about the investigation conducted by him. ( 12 ) LEARNED Public Prosecutor vehemently contended that A1 and his wife were present in the house the deceased sustained several injuries, and therefore the onus lies on Al to explain the circumstances leading to the death of the deceased, and his failure to do so would only lead to a conclusion that he alone was responsible for the offence. In support of her contention, she relied upon a decision in Babu Raveendran v. Babu bahaleyan, 2003 SCC (Cri.) 1569 wherein the Apex Court has held in Paragraph 18 as follows : "now the question which remains to be considered is, who is responsible. As already noticed, the accused and the deceased were closeted inside the room. There is no evidence of an intruder. In such a situation, the circumstances leading to the death of the deceased are shifted to the accused It is he who knows in what manner arid in what circumstances the deceased had met her end and. as to how the body with strargeulation marks found its way into the nearby well. All the aforesaid circumstances, taken together cumulatively lead and unerringty point only to the guilt of the accused ( 13 ) THE above decision has no application to the facts of the present case. In the present case, P. W. 2 admitted that the family of the accused consisted of 12 members and all were living together. Admittedly A1 was working as Taxi Driver. The incident in question took place at about 3. 30 p. m. There is no evidence on record that he was present at that time in the house. Therefore, the facts in the decision cited above are entirely different from the facts in this case. The evidence on record at best reveals that there was motive for the accused to kill the deceased for money, but the motive alone is not a ground to convict them. The Prosecution has to prove all the circumstances beyond all reasonable doubt. At this juncture, it is relevant to quote the following observa tions of the Apex Court in Krishnan v. State 2003 AIR SCW 3688 : 2003 Cri LJ 3705. The Prosecution has to prove all the circumstances beyond all reasonable doubt. At this juncture, it is relevant to quote the following observa tions of the Apex Court in Krishnan v. State 2003 AIR SCW 3688 : 2003 Cri LJ 3705. "doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over-emotional response. Doubts must be actual and substsuitial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason arid common sense. It must grow out of the evidence in the case. " ( 14 ) THE evidence on record at the most raises a suspicion against the accused. But the suspicion however strong cannot take the place of legal proof. ( 15 ) COMING to the charge under Section 498-A, IPC, though the evidence of P. Ws. 2, 3, 7 8 and 15, if accepted, would show that the accused demanded money from the deceased. But, their evidence is clearly an improvement, because for the first time they made allegations in the Court. P. W. 18 admitted in his cross-examination that P. Ws, 2 and 3 did not state before him about the demand made by the accused and about the threat that they would kill the deceased. This omission cannot be Ignored as insignificant. P. W. 7 admitted that he did not state before the police that the accused demanded mbney. P. W. 8 admitted that she did not go to the house of P. W. 2 or the house of the accused during the marital life of the deceased and she was not a witness to the demands and the physical assaults made by the accused. Therefore her evidence does not incriminate anything against the accused. P. W. 15 also stated that he did not witness the harassment caused to the deceased and he was not present when Al came to the house and requested P. W. 2 to send the deceased to his house. He also admitted that the accused did not made the demand for money in his present. P. W. 15 also stated that he did not witness the harassment caused to the deceased and he was not present when Al came to the house and requested P. W. 2 to send the deceased to his house. He also admitted that the accused did not made the demand for money in his present. It is not known as to how this witness came to know about the alleged demands. Thus, the evidence on record does not reveal the alleged harassment and the demands made by the accused. ( 16 ) IT is in evidence of P. Ws. 2 and 3 that their statements were recorded by the mandal Revenue Officer at the time of inquest. P. W. 3 admitted that he did not state anything about the harassment caused to the deceased to the police. P. W, 7 also admitted that he made a statement to the mandal Revenue Officer. The statements recorded by the Mandal Revenue Officer were (not) produced before the Court to test the veracity of these witnesses, nor the copies thereof supplied to the accused. ( 17 ) LEARNED counsel for the appellants relied upon a decision in Kota Peda Nagesh v. State of A. P. , 1999 (l)ALD (Crl) 519 : (1999 cri LJ 2051) in which a Division Bench of this Court has held as follows (Para 14) : "a Division Bench of this Court in gaddem Jayarami Reddi s case, (1959) 1 andh WR 196 : (1959 Cri LJ 808) held that a deliberate destruction of statements of witnesses made during investigation or wholesale refusal to furnish copies of such statements leads to the inference that prejudice was occasioned to the accused. Even otherwise a slight evidence of a reasonable possibility of prejudice would swing the balance in favolir of the accused. In a circumstance, where the prosecution has suppressed documents it is open to a Court to presume that the statements withheld would become unfavourable to the prosecution if produced. " ( 18 ) IN the present case; though the mandal Revenue Officer recorded, the statements of the witnesses, the statements were not produced before the Court. In view of the above decision it has to be held that the prosecution suppressed these statements as they would be unfavourable to it, if produced. The trial Court relied upon inadmissible evidence and held, ". . . . . . . . In view of the above decision it has to be held that the prosecution suppressed these statements as they would be unfavourable to it, if produced. The trial Court relied upon inadmissible evidence and held, ". . . . . . . . . . . . on the date of incident it is established from the given facts and circumstances as discussed earlier to also as per the confessional statement leading to recovery Ex. P16 and the evidence of p. Ws. 2, 3, 7 and 15 that he (Al) might have provoked when the deceased Smt. Tasleem shahnaaz refused to do the household Work vide complaint Ex. Pl, confessional statement that he (Al) got anger and out of anger he beat the deceased Smt. Tasleem shahnaaz mercilessly and finally throttled her. " As seen from the evidence on record, there is no such evidence to arrive at such conclusions. The lower Court has not considered the evidence of these witnesses with reference to the improvements made by them. ( 19 ) IN view of the above discussion, it can safely be said that there is no evidence to prove the charges Under Sections 304, 498-A and 201, IPC. As already held above, the accused cannot be convicted under Section 304-B, IPC without a charge being framed specifically. Even otherwise, the evidence on record does not prove this charge. Therefore, the conviction and sentence are liable to be set aside. ( 20 ) IN the result, the impugned order of conviction and sentence is set aside. The accused are acquitted of all the charges. Their bail bonds shall stand cancelled. The appeal is accordingly allowed. Appeal allowed;