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2006 DIGILAW 1416 (AP)

ANGIREKULA RAMAKRISHNA v. STATE OF A. P.

2006-11-15

GOPALA KRISHNA TAMADA

body2006
( 1 ) THIS criminal appeal is preferred by appellant - A1 questioning the judgment, dated 12/10/2001, passed in sessions Case No. 160 of 1998 on the file of the Court of the II Additional Sessions judge, Guntur, wherein learned Additional sessions Judge while acquitting A2 to A4 of the offence punishable under Section 304-B ipc and A1 to A4 of the offence punishable under Section 302 IPC, found the appellant- a1 guilty of the offence punishable under section 304-B IPC. ( 2 ) THE case of the prosecution, in brief, is as follows: The appellant is the husband of one Angirekula Nagamani (hereinafter referred to as 'the deceased' ). A2 is the brother and A4 is the mother of a1. A3 is the wife of A2. PWs. 1 and 2 are the parents and PW4 is the sister of the deceased. The deceased was married to a1 at Ramaswami Kalyanamandapam, repalle. At the time of marriage PW1 gave rs. 1,00,000. 00 as dowry and one gold ring to A1, one gold bangle weighing about 11/4 sovereign, gold ear studs weighing about % sovereign and ear studs weighing about sovereign to the deceased. After marriage, the deceased and A1 were residing at guntur. In the month of January 1996, the appellant beat the deceased to bring money from PW1. The deceased informed the same to PW1, who in turn, handed over the said amount to the deceased and asked her not to demand any amount further. Again in the month of March 1996, the deceased came to PW1 and requested him to pay rs. 10,000. 00 for repairing Photostat Machine and he paid the same in the presence of pw8. Thereafter, in the month of May, 1996 a1 beat the deceased and burnt her thighs and hands with cigarette butts and sent her to PW1 demanding Rs. 50,000. 00 for purchase of new Photostat Machine. Thereafter, PW1 sent the deceased and PW2 to Angalakuduru to his elder brother-in-law's house to stay for some days. Ten days thereafter, A1 went there and made the deceased to believe that he would not ill-treat her and took her to Guntur. On 31/5/1997 at about 7 or 8. 00 a. m. , PW8 informed PW1 that the deceased died, upon which PW1 gave Ex. Ten days thereafter, A1 went there and made the deceased to believe that he would not ill-treat her and took her to Guntur. On 31/5/1997 at about 7 or 8. 00 a. m. , PW8 informed PW1 that the deceased died, upon which PW1 gave Ex. P1 report to the police, which was registered as a case in Crime No. 56 of 1997 for the offence punishable under Section 304-B IPC. The sub-Inspector of Police, Repalle, who was examined as PW 18 sent Ex. P10 express fir to all concerned. Thereafter, on 1-6-1997 the Inspector of Police, Repalle, took up investigation. On requisition, the Mandal revenue Officer, Repalle conducted inquest over the dead body of the deceased. Later the case was transferred to Arundalpet Law and Order Police Station on the point of jurisdiction, where the case was reregistered as Crime No. 87 of 1997. The Deputy Civil surgeon, Government Hospital, Repalle, who was examined as PW 17 conducted autopsy over the dead body of the deceased and issued post-mortem certificate opining that the deceased died of shock and haemorrhage, due to injury to the spleen. On 6-6-1997 the Inspector of Police Law and Order Police Station, Guntur (PW20) conducted further investigation. He visited the scene of offence and prepared rough sketch of the house of A1 and after completion of entire investigation, charge-sheet was laid against the accused. ( 3 ) ON appearance of accused and on hearing both sides, learned Additional sessions Judge framed a charge under section 304-B IPC or in the alternative, a charge under Section 302 of IPC against a1 to A4, read over and explained to them in Telugu, for which they pleaded not guilty and claimed to be tried. ( 4 ) TO bring home the guilt of accused, prosecution examined PWs. 1 to 21 and marked Exs. P1 to P11 and M. Os. 1 to 9. On behalf of defence, no witness was examined, but Exs. D1 to D9 were marked. ( 5 ) ON an analysis of the entire oral and documentary evidence, the trial Court while acquitting A1 to A4 of the offence punishable under Section 302 IPC, and A2 to A4 of the offence punishable under section 304-B IPC, however, convicted and sentenced the appellant - A1 for the offence punishable under Section 304-B IPC as stated supra. Hence, this appeal by the appellant. Hence, this appeal by the appellant. ( 6 ) HEARD learned Counsel for appellant and learned Additional Public Prosecutor. ( 7 ) LEARNED Counsel for appellant vociferously contended that there is absolutely no evidence to hold that there was demand for dowry, for, or in connection with the marriage and on account of which the deceased died. He further contended that at the time of death of the deceased she was pregnant and her death was natural as she died due to some injury to spleen, which might have occurred while she was travelling, as spoken by the doctor, who was examined as PW3. He further contended that except the interested and discrepant testimonies of PWs. 1, 2, 4, 7, 8, 10 and 11, there is no independent evidence available on record, to show that there was any harassment by the appellant within the meaning of cruelty as defined under section 304-B IPC read with Section 113-B of the Indian Evidence Act, 1872. He also contended that simply because the death of the deceased occurred within seven years of her marriage it cannot be concluded that A1 is guilty of the offence punishable under Section 304-B IPC. ( 8 ) PER contra, learned Additional public Prosecutor while supporting the impugned judgment contended that even though PWs. 1, 2, 4, 7, 8, 10 and 11 are interested witnesses, their evidence is consistent and cogent and based on their evidence conviction can be maintained. He further contended that in the absence of pointing out any illegality or irregularity either on facts or on law, well considered judgment of the trial Court cannot be disturbed. ( 9 ) IN a case of this nature, in order to bring home the guilt of the accused, prosecution has to establish the following ingredients, namely: (1) the death of the deceased must be within seven years of her marriage; (2) it must be unnatural death; (3) soon before her death there must be harassment for dowry by the accused to the deceased. ( 10 ) IT is an undisputed fact that the marriage between the deceased and the appellant was performed on 8/10/1995 and the death of the deceased had taken place on 31/5/1997. Since the deceased, who was aged 27 years, died within seven years of her marriage, the prosecution has established the first ingredient. ( 10 ) IT is an undisputed fact that the marriage between the deceased and the appellant was performed on 8/10/1995 and the death of the deceased had taken place on 31/5/1997. Since the deceased, who was aged 27 years, died within seven years of her marriage, the prosecution has established the first ingredient. ( 11 ) COMING to the aspect whether the death of the deceased was unnatural or not, prosecution mainly relied on the evidence of the interested witnesses. e. , PWs. 1, 2, 4, 5, 7, 8 and also the medical evidence of PW3 and PW 17. ( 12 ) PW1 is the father, PW2 is the mother, and PW4 is the sister of the deceased. PWs. 5, 7 and 8 are also closely related to the deceased. Their evidence is to the effect that the deceased died on account of the harassment by the appellant, and they also suspect that the appellant might have murdered the deceased. Except the interested and discrepant testimony of pws. 1, 2, 4, 5, 7 and 8, no independent witness was examined to speak that the death of the deceased was due to injuries sustained by her allegedly in the hands of the accused and thus it was unnatural. Obviously, in a case of this nature, parents and other relatives of the deceased would definitely blame the husband of the deceased for the death of the deceased. In such circumstances, medical evidence plays crucial role. In this case, as soon as the deceased complained of stomachache, appellant took her to PW3 and thereafter on the advise of PW3, he took the deceased to Government General Hospital, Guntur. ( 13 ) ACCORDING to PW3, appellant along with the owner of his house brought the deceased to her hospital. She further spoke that the deceased was complaining about severe abdominal pain, and when she questioned the deceased, the deceased told her that she had taken injection at Repalle from a doctor and attended a marriage at her relative's house at Ponnur one day prior to her examination. She further spoke that the owner of the house of appellant left the hospital at about midnight and then she advised appellant to shift the deceased to government General Hospital, Guntur as she was cyanosed and shock. She further spoke that the owner of the house of appellant left the hospital at about midnight and then she advised appellant to shift the deceased to government General Hospital, Guntur as she was cyanosed and shock. She further spoke in her cross-examination that if a woman having pregnancy of below five months (ravels in RTC Bus, due to jerks, there is possibility of bleeding and termination of pregnancy. ( 14 ) ACCORDING to PW17, who conducted autopsy over the dead body of the deceased, he issued Ex. P8 post-mortem report opining that the deceased died due to shock and haemorrhage due to injury to the spleen. In his cross-examination, he further spoke that he did not find any injuries on the ribs and that the contusions and abrasions noted in Ex. P8 are nothing to do with the rupture to spleen. He further spoke that the rupture to the spleen can be caused with a blunt projected object and also fall and the fall must be violent fall. There are no external injuries corresponding to the rupture to the spleen. ( 15 ) FROM a perusal of the evidence of pws. 3 and 17 coupled with Ex. P8, post-mortem report, it is clear that the deceased died due to injury to the spleen. As rightly contended by learned Counsel for the appellant since the deceased had taken injection at Repalle and attended a marriage at Ponnur, one day prior to her treatment from PW3 at Guntur, it leads to an inference that the death of the deceased was natural as the rupture to the spleen of the deceased might be caused while she was travelling. Therefore, it can be safely held that the death of the deceased is natural and the prosecution could not establish the second ingredient. ( 16 ) INSOFAR as the crucial ingredient as to whether the death of deceased was solely on account of the harassment meted out to her at the hands of the appellant 'soon before her death' for, or in connection with demand for dowry is concerned, prosecution mainly relied on Ex. P1 and the oral evidence of the interested witnesses. e. , PWs. 1, 2, 4, 5, 7, 8 and 11 to 13. P1 and the oral evidence of the interested witnesses. e. , PWs. 1, 2, 4, 5, 7, 8 and 11 to 13. ( 17 ) IT is a settled proposition of law that to establish demand within the meaning of dowry, any property or valuable security must have been given or agreed to be given either directly or indirectly a) at the time of marriage, or b) before the marriage, or c) at any time after the marriage in connection with agreement of the parties to the marriage. If there has been no agreement between the parties to a marriage to give or take property or valuable security or where the property or valuable security has been given and taken, but thereafter further amounts are demanded after the marriage such demand will not fall within the meaning of dowry and even if all other requirements of Section 304-B of IPC are satisfied, it will not be dowry death. ( 18 ) FROM a perusal of the oral and documentary evidence, it is clear that there is no such agreement between the parties to the marriage with regard to dowry. In the absence of any agreement to pay dowry at or after the time of marriage, it cannot be said that the appellant harassed and demanded the deceased to bring dowry in connection with the marriage, from her parents. PWs. 1 and 2 in their evidence as well as in Ex. P1 stated that the appellant used to demand the deceased to bring amount from them and they used to pay the same whenever she asked. Even assuming for a moment that the appellant had demanded as alleged by PW1 and if really pw 1 paid the said amounts to the appellant, they would not constitute dowry and the alleged demand does not fall within the ambit of Section 304-B of IPC. Therefore, their evidence does not help the prosecution to establish that the appellant harassed the deceased demanding dowry. ( 19 ) THOUGH PW10, the owner of the house where the deceased and the appellant resided prior to residing in the house of pw6, spoke that the deceased and the appellant used to quarrel with each other, his evidence is falsified by the evidence of pw6, in whose house the deceased and the appellant last resided. ( 19 ) THOUGH PW10, the owner of the house where the deceased and the appellant resided prior to residing in the house of pw6, spoke that the deceased and the appellant used to quarrel with each other, his evidence is falsified by the evidence of pw6, in whose house the deceased and the appellant last resided. According to PW6, the deceased and the appellant were residing in his house from 1-5-1997 and in that period they lived happily. He further spoke that on 30-5-1997 between 8. 30 and 9. 00 p. m. , in the absence of the appellant when the deceased complained of abdominal pain, he contacted the appellant and after his arrival, himself, his wife and the appellant took the deceased to PW3, and PW3 provided treatment to the deceased. Therefore, as rightly contended by the learned counsel for the appellant that the appellant has nothing to do even with the abdominal pain and in fact he took the deceased to pw3, on receiving phone call from PW6. From this it can be said that the appellant and the deceased had cordial terms. ( 20 ) PW9 is the driver of a car engaged by the appellant to take the deceased from government General Hospital, Gunrur, to repalle through Kovelamud. According to him the appellant asked him to stop the car in front of the house of PW1 at Kovilamudi and the parents of the deceased came and saw the dead body of the deceased. If really the appellant was responsible for the death of the deceased, he would not have taken the deceased to her parents' house directly from the hospital. This circumstance also probablises the defence that the appellant has nothing to do with the death of the deceased. ( 21 ) ON the other hand, the parents and other interested witnesses spoke that the parents of the deceased were not interested in getting their daughter married with the appellant. So, as rightly contended by the learned Counsel for the appellant due to frustration on the death of their daughter, the parents of the deceased might have foisted a false case against the appellant, as they were not interested in the appellant. So, as rightly contended by the learned Counsel for the appellant due to frustration on the death of their daughter, the parents of the deceased might have foisted a false case against the appellant, as they were not interested in the appellant. ( 22 ) FROM the totality of the facts and circumstances of the case, the inevitable conclusion would be that there was no harassment by the appellant to the deceased demanding dowry for or in connection with marriage, and as a consequence of non-payment of the alleged dowry the death of the deceased had taken place. In that view of the matter, this Court is of the view that the conviction and sentence imposed on the appellant for the offence punishable under section 304-B IPC is not sustainable and the same is liable to be set aside. ( 23 ) ACCORDINGLY, the criminal appeal is allowed setting aside the conviction and sentence imposed on the appellant for the offence punishable under Section 304-B IPC by the learned II Additional Sessions Judge, gunrur, in Sessions Case No. 160 of 1998, vide judgment dated 12/10/2001. .