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2006 DIGILAW 1284 (AP)

Md. Ziauddin v. State of A. P.

2006-10-18

GOPALA KRISHNA TAMADA

body2006
JUDGMENT Parveen Begum, wife of the appellant, (hereinafter referred as the deceased) was found dead hanging on 6-12-1997 at 9-00 a.m. The appellant, his mother, his sister, his sister's husband and his another sister were arrayed as A-1 to A-5 respectively in S.C. No. 324 of 1998 on the file of the Court of the I Additional Metropolitan Sessions Judge, Hyderabad, in connection with the death of the deceased, charging them with an offence punishable under Section 304-B of the Indian Penal Code, 1860. The learned I Additional Metropolitan Sessions Judge vide judgment dated 28-8-2001 while holding A-2 to A-5 are not guilty of the said offence, found the appellant-A-1 guilty of the said offence and accordingly convicted and sentenced him to undergo rigorous imprisonment for a period of seven years. As against the said conviction and sentence the appellant preferred this criminal appeal. 2. There is no dispute of the fact that the death of the deceased was unnatural. The case of the prosecution, in brief, is that the marriage between the deceased and the appellant was performed in the year 1994 and at the time of marriage an amount of Rs. 10,000/- was paid to the appellant towards Jhoda-Ghoda, three tulas of gold ornaments and also necessary household articles. Immediately, their marriage was consummated and they both lived happily for about six months. Subsequently, according to the case of the prosecution, all the accused started demanding dowry of Rs. 20,000/- from the deceased, motor cycle for the appellant and also to replace almyrah which' was given to her at the time of her marriage. Thus all the accused were harassing and ill treating the deceased. Out of their wedlock the deceased gave birth to two daughters and they are aged about two years and one year respectively. Despite the fact that the father of the deceased who was examined as P. W.1 expressed his inability to satisfy the demands, they had been insisting upon the payments and they were eyen refusing to send the deceased to her parents' house. However, P.W.1 agreed to meet the said demands in the month of Ramzan. Ten or fifteen days prior to the death of the deceased all the accused beat her and sent her away from their house asking her to bring the dowry amount, motor cycle and other articles which were demanded earlier. However, P.W.1 agreed to meet the said demands in the month of Ramzan. Ten or fifteen days prior to the death of the deceased all the accused beat her and sent her away from their house asking her to bring the dowry amount, motor cycle and other articles which were demanded earlier. Two days thereafter P.W.1 along with other mediators (not examined) along with the deceased visited the house of the accused, pacified the matter and promised to fulfill their demands. Thus, the deceased again joined the company of the appellant. On 5-12-1997 at about 8-00 or 8-30 a.m. when P.W.1 went to the house of the accused the deceased told him that her husband beat her, as the demands were not fulfilled and so saying she wept before him. However, he pacified her saying that he will fulfill the demands by the date of Ramzan. On 6-12-1997 when he was at Miralam Mandi, his nephew Saleem (not examined) came to him and informed him that the deceased died at her in-laws house. Then immediately PW.1 and others went to the house of the accused and found the body of the deceased hanging to the hook of a fan with a saree. Thereafter he went to Rein Bazaar Police Station and gave a complaint, which was maked as Ex.P-1. On the foot of the said complaint, P.W.9, the Inspector of Police, registered a case in Crime No. 184 of 1997 for the offence punishable under Section 304-B of IPC. and issued copies of First Information Reports to all the concerned. The FIR was marked as Ex.P-8. Thereafter P.W.9 proceeded to the scene of offence and conducted scene of offence-cum-observation panchanama in the presence of panchayatdars i.e. P.W.5 and another. The said observation panchanama was maked as Ex.P-4. Thereafter, he removed the body of the deceased and shifted to the Osmania Hospital for the purpose of postmortem examination. 3. It is also the case of the prosecution that on a requisition, the Mandai Revenue Officer, who was examined as P.W.7 conducted inquest over the dead body of the deceased in the presence of P.W.6 and another. The said inquest report was marked as EX.P-5. 3. It is also the case of the prosecution that on a requisition, the Mandai Revenue Officer, who was examined as P.W.7 conducted inquest over the dead body of the deceased in the presence of P.W.6 and another. The said inquest report was marked as EX.P-5. The doctor, who was examined as P. W.8, was requisitioned to conduct autopsy over the dead body of the deceased conducted autopsy and found the following ante mortem ligature: "Ligature mark of 24 cms., in length present over thyroid cartilage in the upper part of the neck on the left side of the neck, the mark is transverse started 6 cms. below and behind left mastoid process fast forwards towards the midline of the neck, where it is 6 cms., below the chin, from mid line of the neck of the mark passed backwards and upwards on to the right side of the neck and terminated below right mastoid process the mark is reddish brown, partched with variable width of 2 to 4 cms., interrupted. No evidence pattern. According to him, the deceased died due to asphyxia by hanging. Thereafter, the body of the deceased was handed over to P.W.1 and the Inspector of Police who was examined as P.W.9 recorded the statements of P.Ws. 1, 2, 3 and 4. Subsequently, the Assistant Commissioner of Police (not examined) took up further investigation in this case on 9-12-1997 and arrested A-1 to A-3. After completion of entire investigation, the Assistant Commissioner of Police filed charged-sheet on 8-7-1998. 4. On appearance of A-1 to A-5 and on hearing both sides the learned I Additional Metropolitan Sessions Judge framed a charge under Section 304-8 of IPC against them, read over and explained to them in Telugu, for which they pleaded not guilty and claimed to be paid. 5. To establish its case, the prosecution examined P.Ws. 1 to 9 and got marked Exs.P-1 to P-13 and M.Os. 1 to 5. On behalf of defence none were examined and no document was marked. 6. Heard learned Counsel for the appellant and learned Additional Public Prosecutor. 7. The learned Counsel appearing for the appellant strenuously contended before this Court that there is abnormal delay in giving FIR and in sending the same to the Court and the said delay is not at all explained by the prosecution. 6. Heard learned Counsel for the appellant and learned Additional Public Prosecutor. 7. The learned Counsel appearing for the appellant strenuously contended before this Court that there is abnormal delay in giving FIR and in sending the same to the Court and the said delay is not at all explained by the prosecution. It is his further submission that the Court below erred in drawif1g a presumption under Section 113-6 of the Indian Evidence act, 1872 (for short, 'the Act') as the entire case of the prosecution does not specify the requirements envisaged under Section 113-6 of the Act. According to him, if the prosecution is able to establish that "soon before her death" there was harassment, then only the presumption can be drawn and in that extent there is absolutely no evidence to come to the conclusion that there was harassment "soon before her death". 8. Per contra, the learned Additional Public Prosecutor submitted that there is no delay in lodging the FIR and if at all there is any delay in sending the FIR to the Court it is irrelevant because the same report is forwarded to the Court and it cannot be said that there are some manipulations. Similarly it is contended on behalf of the prosecution that a scan of the evidence of P.Ws. 1 to 3 clearly establishes that there is harassment soon before the death of the deceased and thus the Court below has rightly drawn the presumption under Section 113-8 of the Act. 9. In the light of the arguments advanced on either side, this Court has looked into the entire case of the prosecution as spoken to by the prosecution witnesses. 10. P .W.1 is the father of the deceased and P.W.2 is the brother of the deceased. P.Ws. 3 and 4 are the neighbours and residing adjacent to the deceased and the appellant and they are cited to establish the fact about the alleged harassment, but they did not support the case of the prosecution. 10. P .W.1 is the father of the deceased and P.W.2 is the brother of the deceased. P.Ws. 3 and 4 are the neighbours and residing adjacent to the deceased and the appellant and they are cited to establish the fact about the alleged harassment, but they did not support the case of the prosecution. P. W.5 is a mediator in whose presence the observation panchanama was drafted, P.W.6 is one of the mediators for the inquest conducted by the Mandai Revenue Officer on 6-12-1997, PW.7 is the Mandai Revenue Officer, who conducted inquest over the dead body of the deceased at Osmania General Hospital Mortuary, P.W.8 is the Professor of Forensic Medicine of Osmania Medical College, who conducted autopsy over the dead body of the deceased, P.W.9 is the Inspector of Police, who conducted investigation in this case. 11. It is a certainty that Parveen Begum the deceased died under abnormal circumstances. The primary requirements to hold that the appellant is guilty of the offence punishable under Section 304-B of IPC are that the death of the deceased was caused "within seven years of her marriage" and that "soon before her death she was subjected to cruelty or harassment by the appellant for, or in connection with, any demand for dowry". 12. The first premise stands established in this case that the death of the deceased took place within seven years from the date of her marriage, as it is an undisputed fact that the marriage between the appellant and the deceased was performed in the year 1994 and the death of the deceased occurred on 6-12-1997. The second premise that the death of the deceased was suicide is a factum, which has not been disputed even by the appellant himself. The second premise that the death of the deceased was suicide is a factum, which has not been disputed even by the appellant himself. In order to establish the third requirement Le., "soon before her death the deceased was subjected to cruelty or harassment for, or in connection with, any demand for dowry", a plea is made to resort to the legal presumption envisaged in Section 113-B of the Act, it reads thus: "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." 13. It is imperative, for invoking the aforesaid legal presumption, to prove that "soon before her death" whether the deceased was subjected to such cruelty or harassment. No doubt, according to the learned Counsel for the appellant ten or fifteen days prior to the death of the deceased, the accused beat the deceased and sent her away asking her to bring dowry amount, motor cycle and other articles which were demanded earlier and two or three days thereafter her father i.e., P.W.1 and others went to the house of the accused and pacified the matter and thereafter left the deceased in her matrimonial home. If the said contention is accepted, definitely it can be said that there is no harassment "soon before her death". But P.W.1 in his report marked as EX.P-1 and also during the course of his evidence has categorically stated that on 5-12-.1 997 at about 8 or 8-30 a.m., he went to the house of the accused where the deceased complained that her husband was beating her as demands are not fulfilled and thus wept before him. The said evidence of P. W. 1 is fully corroborated by the evidence of P.W.2 i.e., the brother of the deceased. Thus in between the date of mediation i.e., some ten days prior to the date of the incident and the date of her tragic end i.e. on 6-12-1997, there is again harassment and the same was spoken to by P.Ws.1 and 2. Thus in between the date of mediation i.e., some ten days prior to the date of the incident and the date of her tragic end i.e. on 6-12-1997, there is again harassment and the same was spoken to by P.Ws.1 and 2. Hence, the contention that the Courts cannot take recourse to the legal presumption envisaged under Section 113-B of the Act is not sustainable and accordingly rejected. 14. Coming to the aspect of delay, the alleged offence, according to the first information report, took place at about 9-30 a.m. on 6-12-1997, whereas the report was given at 11-00 a.m. on the same day. From this it cannot be inferred that there is abnormal delay in lodging the report. It is not as though the moment the alleged offence is detected immediately people should run to the police station and give a report. The said delay of 11/2 hour in my considered view cannot be said to be delay at all. The endorsement on the said FIR establishes that the said report was received by the Court through PC. 8757 of Rein Bazaar Police Station at 5-30 p.m. As rightly contended by the learned Additional Public Prosecutor, pursuant to the said report, the FIR was registered and the same was received by the Court at 5-30 p.m., it cannot be said that the prosecution has deviated from the original report. It is elicited in the evidence that the prosecution has attended to the requirements immediately after registering the FIR, such as conducting inquest, sending the dead body for autopsy, recording the statements of the witnesses etc. Simply because the report was received by the concerned Court at 5-30 p.m., no adverse inference can be drawn that the prosecution has suppressed the material facts and is coming up with a false case. Thus, this Court is of the view that the prosecution has fairly established its case in bringing home the guilt of the appellant. 15. In the result, the criminal appeal is dismissed confirming the conviction and sentence imposed on the appellant - A-1 in S.C.No.324 of 1998 by the I Additional Metropolitan Sessions Judge, Hyderabad. The appellant - A-1 is hereby directed to surrender before the Court below forthwith to I serve the balance of sentence.