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2005 DIGILAW 827 (AP)

Dayyala Bixapathi v. State Of A. P.

2005-08-31

ELIPE DHARMA RAO

body2005
( 1 ) THE accused, A-1 and A-2, are the revision petitioners herein. They were charged for the offence punishable under Section 304-B, IPC for harassment and cruelty towards one Lalitha (hereinafter referred to as the "deceased") resulting in the committing of suicide by the deceased by consuming poison. The learned Assistant sessions Judge, Jangaon tried the accused in S. C. No. 465 of 1998, found them guilty of the charges framed against them and convicted for the offence under Section 304-B, ipc and sentenced each of them to suffer rigorous imprisonment for a period of seven years. On appeal by the accused the learned First Additional Sessions Judge, warangal in Crl. A. No. 90 of 1998 confirmed the conviction and the sentence imposed on them. Challenging the conviction and the sentence imposed on them, the accused- appellants filed the present criminal revision case. ( 2 ) THE facts of the case, as unfolded by the prosecution, are that the marriage between A-1 and the deceased, a resident of Gannavaram Village, was solemnized about six years prior to the death of the deceased. A-2 is the mother of A-1. At the time of marriage A-1 was promised to pay Rs. 10,000/- towards dowry by the mother of the deceased, but could not pay the total amount and paid only Rs. 7,000/- promising to pay the balance of Rs. 3,000/- after sometime. According to the prosecution a-1 and the deceased lived together and at the first instance gave birth to a male child, who died later and thereafter they gave birth to a female child, who was aged five years at the time of the death of the deceased. Thereafter both A1 and A-2 started harassing the deceased demanding payment of balance amount of Rs. 3,00/- towards dowry and 15 days prior to the death of the deceased the accused beat her in the that regard. On informing the same by the deceased, her mother went to surat, where her son was working, to get the money from her son, the brother of the deceased. However, according to the prosecution in the meanwhile due to the harassment meted out by the accused the deceased consumed poison (insecticide) on 4-6-1997 and died. On informing the same by the deceased, her mother went to surat, where her son was working, to get the money from her son, the brother of the deceased. However, according to the prosecution in the meanwhile due to the harassment meted out by the accused the deceased consumed poison (insecticide) on 4-6-1997 and died. On coming to know about the incident Dayyala Yelendra, the sister of the deceased, P. W. 1, came to the village, where the accused and deceased living and found the dead body of the deceased and thereafter she lodged a complaint with the S. I. of Police, P. W. 10, who registered a case in Cr. No. 38/97 for an offence under Section 304-B, IPC and sent the First Information Report to all the concerned. Thereafter the Sub-Divisional police Officer, Jangaon, P. W. 11 after completion of investigation filed the charge- sheet. ( 3 ) WHEN questioned as to the commission of offence by the learned Assistant Sessions judge, Jangaon the plea of the accused was one of total denial. ( 4 ) THE prosecution to prove its case examined as many as eleven witnesses and marked the documents Exs. P-1 to P-7. Off the witnesses examined on behalf of the prosecution, P. W. 5 turned hostile. No witness was examined on behalf of the accused. ( 5 ) THE learned Assistant Sessions judge basing on the material available found the accused guilty, convicted them under section 304-B, IPC and sentenced each of them to suffer rigorous imprisonment for a period of seven years. On appeal, as stated supra, the learned First Additional Sessions judge, Warangal confirmed the order of conviction and the sentence against the accused. Questioning the conviction and the sentence imposed on them, as stated supra, the accused preferred the present criminal revision case. ( 6 ) THE learned Counsel for the revision petitioners contends that P. Ws. On appeal, as stated supra, the learned First Additional Sessions judge, Warangal confirmed the order of conviction and the sentence against the accused. Questioning the conviction and the sentence imposed on them, as stated supra, the accused preferred the present criminal revision case. ( 6 ) THE learned Counsel for the revision petitioners contends that P. Ws. 1 to 4 and 7 are interested witnesses, that since their evidence is hearsay evidence no reliance can be placed to arrive at a definite conclusion that the accused guilty of the offence, that there is no conclusive evidence with regard to the harassment meted out to the deceased by the accused, that non- examination of the mother of the deceased, who is the best person to speak about the harassment and payment of dowry is fatal to the prosecution case, that the prosecution is failed to establish its case to attach the guilt to the accused under Section 340-B, ipc, that there is no proof that the deceased died within seven years of her marriage, that there is no corroboration in the evidence of P. Ws. 1 to 4 with that of the post-mortem certificate with regard to the age of the deceased at the time of her marriage with A-1, that the prosecution miserably failed to prove its case in bringing home the guilt of the accused beyond all reasonable doubt and that therefore the conviction and the sentence awarded against the accused are liable to be set aside and the accused are entitled for acquittal. ( 7 ) ON the other hand the learned public Prosecutor contends that the clinching evidence of prosecution witnesses establishes that the accused harassed the deceased for payment of balance amount of dowry, thereby compelling her to consume poison, which resulted in her death, that both the trial Court and the lower appellate Court basing on the material available rightly found the accused guilty of the offence and that therefore the order of conviction and the sentence awarded against the accused cannot be interfered with. ( 8 ) P. W. 1, who is no other than the sister of the deceased, in her chief examination deposed that after marriage of the deceased with A-1, the accused raised dispute with regard to the dowry and demanded the deceased to bring balance dowry of Rs. ( 8 ) P. W. 1, who is no other than the sister of the deceased, in her chief examination deposed that after marriage of the deceased with A-1, the accused raised dispute with regard to the dowry and demanded the deceased to bring balance dowry of Rs. 3,000/- and in that regard a panchayat was held between the deceased and the accused and as such the deceased consumed poison. In her cross-examination as to the preparation of Lagnapatrika for the marriage of the deceased with A-1, p. W. 1 has spoken to the effect that the lagnapatrika was drafted fifteen days prior to the marriage and she does not know as to who prepared and what was written in it. It is also in her evidence that the deceased gave birth to two children - one male and one female child - before her death the male child died and the female child who is aged five years, is living with the accused. The testimony of P. W. 1 is that her deceased sister attained puberty two years after her marriage with A-1, that the age of the deceased by the date of marriage was only 12 or 13 years and that she gave birth to first child one year after getting puberty and from thereafter within one year she gave birth to another child. According to P. W. 1 the marriage transactions were looked after by her mother and she was not told about the giving of dowry to the accused. Further it is stated that there was also an altercation took place between the deceased and the accused in her house and that she was told by her mother that there was panchayat held between them. ( 9 ) P. W. 2, who is also the sister of the deceased, has spoken to the effect that she came to know about the harassment at the hands of the accused and as such the deceased died by consuming poison. P. W. 2 in her cross-examination deposed that the deceased got married A-1 when her age was 13 years and that she attained puberty after her marriage. She deposed that her mother looked after the marriage transactions of the deceased and that the Lagnapatrika was in their possession and that the same was not given to the police at the time of lodging complaint. She deposed that her mother looked after the marriage transactions of the deceased and that the Lagnapatrika was in their possession and that the same was not given to the police at the time of lodging complaint. According to P. W. 2, her sister told her that there was a dowry dispute between the accused and the deceased and that she did not state before the police that on the date of death there was a panchayat. ( 10 ) P. W. 3 deposed in the chief examination that she came to know about the panchayat between the accused and the deceased through villagers and due to that panchayat the deceased consumed poison and died. In her cross-examination it is elicited that when the age of the deceased was 12 years she was got married A-1 and one year thereafter she attained puberty. ( 11 ) P. W. 4 has spoken to the effect that the age of the deceased was about 15 or 16 years at the time of her marriage with a-1. However, she deposed that she cannot give the date, month and year of the marriage. It is also in the evidence of P. W. 4 that Lagnapatrika was written for the marriage, that the deceased attained puberty after five months of her marriage and that within one month she became pregnant. ( 12 ) THE point for consideration in this criminal revision case is - whether the accused made any demand for balance dowry; whether deceased committed suicide due to the cruelty and harassment subjected to her by the accused; whether the deceased died within seven years of her marriage with A-1 and whether the prosecution has established its case to bring home the guilt of the accused beyond all reasonable doubt ? ( 13 ) IT is to be seen that P. Ws. 1 to 3 who are no other than the sisters of the deceased, though stated in their examination in chief that out of the total amount of Rs. 10,000/- agreed to be paid towards dowry, an amount of Rs. 7,000/- was paid with a promise to pay the balance of rs. 3,000/- after marriage, when a suggestion was made during the course of cross- examination, it was elicited that all the arrangements including preparation of lagnapatrika was looked after by their mother. 10,000/- agreed to be paid towards dowry, an amount of Rs. 7,000/- was paid with a promise to pay the balance of rs. 3,000/- after marriage, when a suggestion was made during the course of cross- examination, it was elicited that all the arrangements including preparation of lagnapatrika was looked after by their mother. Therefore the version spoken to by P. W. 1 with regard to the demand for payment of balance dowry is not trustworthy and their statement is unbelievable. No evidence whatsoever was putforth before the trial Court as to when and exactly on what date the marriage between the deceased and A-1 took place despite the fact that a Lagnapatrika was written in respect of their marriage. When there was a Lagnapatrika written for the marriage, the prosecution failed to mark the same to support its case. ( 14 ) IN her cross-examination P. W. 1 stated that the marriage of her deceased sister was performed eight years back. Even according to her, there was a lagnapatrika written and though it was in her possession the same was not given to the police at the time of lodging of complaint, Ex. P-1. Therefore it is clear that there is no iota of evidence as to when exactly the marriage between the deceased and A-1 took place. When there is no evidence as to the exact date of marriage, even according to the version spoken to by p. Ws. 1 to 3 and without there being any presumption it has to be taken that the deceased committed suicide seven years after her marriage with A-1. Even according to the version spoken to by P. Ws. 1 to 3 the marriage between the deceased and A-1 took place eight years prior to her death and therefore it would go to show that the deceased died eight years after her marriage with A-1. P. Ws. 1 to 3, as stated supra, who are no other than the sisters of the deceased, who admittedly attended the marriage of the deceased with A-1, could not state as to the date on which, though not exact, the marriage was performed. It is also to be seen that the while story with regard to the demand for balance dowry was unnatural and improbable in view of the fact that nobody among P. Ws. It is also to be seen that the while story with regard to the demand for balance dowry was unnatural and improbable in view of the fact that nobody among P. Ws. 1 to 3 clearly stated about the demand for balance dowry by the accused. It is in their evidence that they heard about the accused demanding the balance dowry amount from her mother, who was not examined by the prosecution. ( 15 ) P. W. 1 in her examination in chief deposed that she heard about consuming of poison by the deceased due to the harassment by the accused from the villagers. This is a contradictory statement made by P. W. 1 and it would go to show that it is only hearsay evidence and it is highly impracticable to place reliance on it to bring the accused to book. It is to be mentioned herein that none of the so called material witnesses either present at the time of the alleged panchayat between the deceased and the accused or the demand for balance dowry made by the accused. According to the prosecution a panchayat was held between the deceased and the accused, but nothing was stated about the outcome of the panchayat and as to who were present and what transpired at the time of panchayat to settle the dispute. Undoubtedly the prosecution cooked up a story to involve the accused in the alleged crime. Moreover the evidence of P. Ws. l to 4 is not corroborated by any independent evidence and their evidence in the absence of independent corroboration is liable to be discarded. Therefore both the Courts below committed serious and manifest error in concluding that the accused were guilty of the offence when there is no independent corroborative evidence available on the aspect of demand of balance dowry made by the accused. Then the question is whether the prosecution is able to establish the ingredients of Section 304-B, IPC to convict and sentence the accused. Then the question is whether the prosecution is able to establish the ingredients of Section 304-B, IPC to convict and sentence the accused. ( 16 ) IT is important to note that in order to convict an accused for an offence under Section 304-B, IPC the prosecution must satisfy that the death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances; that such death must have occurred within seven years of her marriage; that soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband and that such cruelty of harassment must be for or in connection with demand of dowry. ( 17 ) IT is abundantly clear that the prosecution failed to establish the ingredients of the charge under Section 304-B IPC framed against the accused by acceptable and unimpeachable evidence to call the death of the deceased as "dowry death" and that the husband of the deceased A-1 and his mother, A-2 caused the death of the deceased. It may be noticed that normally in a criminal case accused can be punished for an offence on establishment of commission of that offence on the basis of evidence, may be direct or circumstantial or both, but in case of an offence under section 304-B IPC an exception is made by deeming provision as to nature of death as "dowry death" and that the husband or his relative, as the case may be, is deemed to have caused such death, even in the absence of evidence to prove these aspects but on proving the existence of the ingredients of the said offence by convincing evidence. Therefore the trial court and the lower appellate Court failed to take greater care and caution in scrutinizing the evidence and in arriving at the conclusion as to whether all the ingredients of the offence under Section 304-B IPC are proved by the prosecution, since the punishment prescribed for the said offence is imprisonment of not less than seven years, which may extend to imprisonment for life. It may not be out of place to make note that normally this Court will be slow and reluctant to upset the order of conviction of the trial Court as confirmed by the lower appellate Court appreciating the evidence placed on record. It may not be out of place to make note that normally this Court will be slow and reluctant to upset the order of conviction of the trial Court as confirmed by the lower appellate Court appreciating the evidence placed on record. But in the cases where both the Courts concurrently recorded a finding that the accused was guilty of an offence in the absence of evidence satisfying the necessary ingredients of an offence, in other words when no offence is made out, it becomes necessary to disturb such an order of conviction and sentence to meet the demand of justice. In the case on hand both the Courts below miserably failed to appreciate the evidence in proper perspective and without there being a justifiable scrutiny and acceptable reasoning of the evidence, found the accused guilty of the offence, convicted and sentenced them. It is to be mentioned that the appellate Court is expected to reappraise the evidence on record, but it is unfortunate that the appellate Court in the appeal did not analyse, evaluate and scrutinize the evidence of reappraisal. In a summary way the appellate Court without discussing the oral evidence of P. Ws. 1 to 4 and 7, mainly on the basis of which the accused were convicted, has stated that the oral evidence of these witnesses is consistent to being home the guilt of the accused beyond all reasonable doubt. The appellate Court also did not discuss and record reasons as to whether the deceased was subjected to cruelty for and in connection with demanc of balance dowry soon before her death. It simply concluded that it had been provec beyond all reasonable doubt that the accused demanded an amount of Rs. 3,000/- towards balance dowry from her mother through the deceased and subjected her to mental cruelty in connection with that demand. Hence, the prosecution utterly failed to establish the demand of balance dowry by the accused and that the deceased was subjected to cruelty for and in connection with the demand for balance dowry. ( 18 ) AFTER careful scrutiny of the entire material on record it is clear that there is no evidence with regard to the demand for dowry or subjecting the deceased to cruelty for, on in connection with dowry other than general, vague and inconsistent statements of interested and motivated witnesses P. Ws. ( 18 ) AFTER careful scrutiny of the entire material on record it is clear that there is no evidence with regard to the demand for dowry or subjecting the deceased to cruelty for, on in connection with dowry other than general, vague and inconsistent statements of interested and motivated witnesses P. Ws. l to 3 being the sisters of the deceased. It is also clear that not a single member either from the village of the parents of the deceased or the accused, including the mother of the deceased, has come forward to speak about subjecting the deceased to cruelty by the accused in relation to demand of dowry. It may not be out of place to mention that there are material contradictions and serious omissions in the statements of P. Ws. 1 to 4 and 7, as can be seen from their evidence. Further it is clear that P. Ws. l to 3, who are no other than the sisters of the deceased, on account of the deceased having died of consuming poison, obviously were angry against the accused and had every reason to involve the accused for the offence under section 304-B, IPC. ( 19 ) IT is unfortunate that the trial Court did not properly consider the evidence to reach a conclusion that the accused were guilty of the offence. The appellate court as already stated above, did not re- appreciate the evidence and has disposed of the appeal in a summary way, confirming the order of conviction and sentence passed by the trial Court. ( 20 ) IN the light of what is stated above, in may considered view, committed a serious error to arrive at a conclusion that the accused were guilty of the offence. Under these circumstances, the impugned judgment is unsustainable as it suffers from infirmity and illegality as indicated above. ( 21 ) IN view of what is stated above, criminal revision case is entitled to succeed. The judgment of the learned First additional Sessions Judge, Warangal passed in Crl. A. No. 90/1998 confirming the order of conviction and the sentence passed by the trial Court is set aside. The revision petitioners are acquitted of the charges framed against them and they shall be set at liberty forthwith, if not required in any other case. ( 22 ) IN the result the criminal revision case is allowed.