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Andhra High Court · body

2008 DIGILAW 280 (AP)

Giri Ravi v. State of A. P. rep. by the P. P.

2008-04-18

B.SESHASAYANA REDDY

body2008
JUDGMENT Sole accused-Giri Ravi in S.C.No.161 of 2002 on the file of V Additional Metropolitan Sessions Judge, (Mahila Court), Hyderabad calls in question in this Criminal Appeal his conviction and sentence forthe offences under Sections 304-B and 498A IPC. 2. Accused-Giri Ravi was put on trial before the Vth Additional Metropolitan Sessions Judge, (Mahila Court), Hyderabad for the offences under Sections 498-A and 302 IPC. 3. The prosecution case, in brief, is : Accused-Giri Ravi married Manjula on 3.11.2000. P.W.5 Laxmi Bai is mother of Manjula. P.W.6 K. Kousalya is the sister of P.W.5 and she took Manjula in adoption. At the time of marriage cash of Rs.35,000/- was given to the accused apart from presenting 8 tolas of gold to Manjula. After the marriage the accused and his wife Manjula lived together amicably for four or five months. Thereafter, the accused demanded Manjula to bring money from her mother as well as adoptive mother (P .Ws.5 and 6). They met the demands of the accused to some extent. Because of the harassment, pregnancy of Manjula came to be aborted. The accused became addicted to alcohol and resorted to beat Manjula. P.W.6 used to console Manjula and advise her to adjust with the accused. P.W.6, on receipt of telephonic message from Manjula, came to the house of the accused. Manjula asked her to give Rs.5,000/- to meet the demand of the accused, forwhich she expressed herinability. She promised to arrange money by 2nd November 2001. At about 9.30 a.m. on 1.11.2001 P.W.6 received a telephonic message from the neighbours of the accused that Manjula caught in flames. Then P.W.6 accompanied by P.W.5 went to the house of the accused and saw Manjula with burn injuries on her person. They did not find the accused anywhere in the house. Neighbours told them that the accused poured kerosene over Manjula, burnt her and fled away. They shifted Manjula in an auto to the hospital. On the way to hospital they passed on the information to the police. They enquired Manjula as to how she caught in flames and thereupon she stated to them that the accused demanded her to bring money and on her refusal to oblige him, he poured kerosene over her and lit fire and thereby she caught in flames. P.W.11 Mohd. On the way to hospital they passed on the information to the police. They enquired Manjula as to how she caught in flames and thereupon she stated to them that the accused demanded her to bring money and on her refusal to oblige him, he poured kerosene over her and lit fire and thereby she caught in flames. P.W.11 Mohd. Fazil, SI of Police, Tappachabutra Police Station made a General Dairy Entry with regard tothe intimation given to him by P.Ws.5 and 7, while on the way to hospital. He proceeded to hospital and recorded the statement of Manjula, which has been exhibited as EX.P.7. He sent a requisition to VIII Metropolitan Magistrate, Hyderabad. He returned to Police Station and registered a case in Crime NO.143 of 2001 under Sections 498A arid 3071 PC and issued Ex. P.8 FIR. He inspected the scene and examined P.Ws.1, 2 and 4 and another and recorded their statement under Sections 161 Cr.P.C. He prepared EX.P.3 observation report in the presence of P.W.8 and another and effected seizure ofMos.1 to 3. He also prepared rough sketch of the scene, which has been exhibited as EX.PA. He examined P.Ws.5, 6 and 7 at the hospital and recorded their statements under Section 161 of Cr.P.C. P.W.3 M. Prakash, VIII Metropolitan Magistrate, Hyderabad received EX.P.1 requisition and proceeded to hospital and recorded Dying Declaration of Manjula after putting preliminary questions to her. Manjula stated to P.W.3 that the accused demanded her to bring Rs.40,000/- and as she failed to bring money as demanded by him, he poured kerosene on her and lit fire and thereby she caught inflames. EX.P.2 is the dying declaration of Manjula. While undergoing treatment in the hospital, Manjula, hereinafter referred to as the deceased, succumbed to her burn injuries on 6.11.2001 at 9.10 a.m. P.W.12 V. Narasimha Rao, Inspector of Police, Tappachabutra Police Station took up investigation and altered section of law from S.307 to 302 IPC and filed EX.P.9 memo of alteration of section of law. He sent the requisition to conduct inquest over the dead body. P.W.9 G. Vijaya Kumar, MRO (Inquest) held inquest on the dead body of the deceased at Mortuary in Osmania General Hospital in the presence of Man gamma and V. Babu Rao. He sent the requisition to conduct inquest over the dead body. P.W.9 G. Vijaya Kumar, MRO (Inquest) held inquest on the dead body of the deceased at Mortuary in Osmania General Hospital in the presence of Man gamma and V. Babu Rao. The opinion arrived at by the panchas, on hearing the statements of the witnesses, came to be incorporated in column NO.15 of the inquest report, which has been exhibited as EX.P.5. After the inquest, the dead body was subjected for post mortem examination. P .W.10 Dr. Abjit Subedar, held autopsy on the dead body on 6.11.2001 at 4.15 p.m. and issued EX.P6 post mortem report opining that the deceased died due to burns. P.W.12arrested the accused on 7.11.2001 and sent him for remand. P.W.13 N. Srinivas•, Assistant Commissioner of Police, Asifnagar took up investigation and filed EX.P.10 memo for inclusion of Section 304 B IPC. After completing investigation, he laid the charge sheet in the Court of IX Metropolitan Magistrate, Hyderabad. The learned Magistrate took the charge sheet on file as P.R.C.No.14 of 2002 and committed the case to the Metropolitan Sessions Division as the offences under Sections 304B and 302 IPC are exclusively triable by a Court of Session. The learned Metropolitan Sessions Judge, took the case on file as S.C.No.161 of 2002 and made over the same to Vth Additional Metropolitan Sessions Judge, Mahila Court, Hyderabad for disposal according to law. The learned Additional Metropolitan Sessions Judge, on hearing the prosecution and the accused, framed charges under Sections 498A and 302 IPC, read over and explained the same to the accused, for which the accused pleaded not guilty and claimed to be tried. To bring home the guilt of the accused for the offences with which he stood charged, prosecution examined 13 witnesses and proved 10 documents and exhibited 3 material objects. The plea of the accused was that the deceased committed suicide since her adoptive mother (P. W .5) did not repay Rs.10,000/- which she borrowed from the accused for necessities about two months prior to the incident. He also took the plea that the deceased became upset in view of their being no possibility of her becoming a mother. The plea of the accused was that the deceased committed suicide since her adoptive mother (P. W .5) did not repay Rs.10,000/- which she borrowed from the accused for necessities about two months prior to the incident. He also took the plea that the deceased became upset in view of their being no possibility of her becoming a mother. The learned Additional Metropolitan Sessions Judge, on considering the evidence brought on record and on hearing the prosecution and the accused, found the accused guilty for the offences under Sections 498A and 3048 IPC and convicted him accordingly and sentenced him to suffer RI for 2 years and pay a fine of Rs.1,000/- in default to undergo SI for three months for the offence under section 498A IPC and RI for 1 0 years and pay afineofRs.5,000/-; in default to undergo SI for6 months for the offence under section 304 8 IPC, by judgment dated 11th February 2003. Hence, this Criminal Appeal by the accused. 4. Heard learned counsel appearing for the appellant/accused and learned Additional Public Prosecutor appearing for the respondent/State. 5. Learned counsel appearing for the appellant/accused submits that there is no consistency in the dying declarations of the deceased and in which case no reliance can be placed on anyone of the dying declarations which have been exhibited as Exs.P.2and P.7 and oral dying declarations elicited through the evidence of P.Ws.5, 6 and 7. A further submission has been made that mere demand of the appellant/accused to meet the financial strains does not constitute demand for dowry. A feeble contention has been made by learned counsel that a mere demand for dowry or additional dowry after the marriage without there being any agreement before or after the marriage by the parties does not come within the definition of dowry. In support of his submissions, reliance has been placed on the decisions of Supreme Court in Satvir Singh v. State of Punjabi, Biswajit Halder v. State of W.B, Appasaheb and another v. State of Maharashtra and the decisions of our High Court in N. Venkateswarlu v. State of A.P.4 and Reguri Sampath Reddy v. State of A.P. 6. In Satvir Singh's case, the Supreme Court held that to invoke Sec.304-B IPC the harassment or cruelty caused to the women with a demand for dowry should have happened soon before her death. In Satvir Singh's case, the Supreme Court held that to invoke Sec.304-B IPC the harassment or cruelty caused to the women with a demand for dowry should have happened soon before her death. There should be perceptible nexus between her death and the dowry related harassment or cruelty inflicted on her. If the interval elapsed between the infliction of such harassment or cruelty and her death is wide, the Court would be in a position to gauge that in all probabilities the death would not have been the immediate cause of her death. It is hence for the Court to decide, on the facts and circumstances of each case, whether the said interval in that particular case was sufficient to snuff its cord from the concept 'soon before her death'. 7. In Biswajit Halder's case2, the Supreme Court held that to categorize death of women as a dowry death the prosecution must establish that the deceased was subjected to cruelty and harassment for or in connection with the demand for dowry. 8. In Appasaheb's case, the Supreme Court held that demand for money on account of financial stringency or for meeting urgent domestic expenses cannot be termed as demand for dowry. 9. In N. Venkateswarlu's case4, a single Judge of our High Court held that dowry means that property or the valuable security must have been given or agreed to be given either directly or indirectly at the time of marriage or earlier to the marriage or subsequent to the marriage and unless such an agreement is proved, the accused is not guilty under Section 304-B IPC. 10. In Reguri Sampath Reddy's case, (5th cited), a single Judge of this court held that demand by the husband to come within the meaning of dowry demand should be preceded by an agreement. The learned single Judge, after referring the definition of dowry in Sec.2 of Dowry Prohibition Act, observed as under: "(7) Looking to the above provision, it is clear that the property or valuable security referred to therein, must be given or agreed to be given at or before or any time after the marriage in connection with the marriage of the parties. Now, in this regard, it is worthwhile to look into the important evidence adduced by the prosecution in the case. Now, in this regard, it is worthwhile to look into the important evidence adduced by the prosecution in the case. P. W. 1, the father of the deceased, stated in the examination-in-chief itself that at the time of the marriage, he gave Rs. 4,000. 00 to the accused in cash and ten guntas of land as agreed. He has nowhere deposed as to whether the further amounts of money or articles demanded were at all agreed to be given to the accused in connection with the marriage. P. W. 2, who is the brother of P. W. 1, has no doubt deposed that P. W. 1 had agreed to give Rs. 20,000. 00 as dowry and ten guntas of land to the accused, and that during the marriage, P. W. 1 gave Rs. 4,000. 00 in cash to A-1, Rs. 1500. 00 to the sisters of A. 1 and ten guntas of land and articles worth Rs. 4500. 00. He further deposed that the accused had demanded for the balance amount of Rs. 10,000.00 two years after the marriage. True, this witness P. W. 2 did state something in this regard, but, according to him, the agreement for giving of this money was between the accused and P. W. 1, but, surprisingly enough, P. W. 1 himself did not state anything in this regard, as observed above. So, it cannot be assumed that the other items and cash, alleged to have been demanded by the accused from P. W. 1, after the marriage, were at all agreed to be given in connection with the marriage. Thus, I am of the view that the alleged demands, if at all made by A. 1, cannot be termed as "dowry" as defined under the Dowry Prohibition Act, 1961." 11. Learned Additional Public Prosecutor submits that the evidence brought on record clearly establishes that the deceased was subjected to harassment on the ground of dowry demand soon before her death and therefore the death of the deceased is to be characterized as dowry death and in which case the conviction and sentence of the appellant/accused for the offence under Section 304 IPC is legal and proper and the same is not required to be interfered in this appeal. 12. The appellant/accused was put on trial for the offences under Sections 498 AIPC 302 IPC. 12. The appellant/accused was put on trial for the offences under Sections 498 AIPC 302 IPC. The prosecution relied on the dying declarations of the deceased to bring home the guilt of the accused for the offences with which he stood charged. There are two written dying declarations, which have been exhibited as Exs.P.2 and P.7, and three oral dying declarations as deposed by P.Ws.5, 6 and 7 who are mother, maternal aunt and maternal uncle respectively of the deceased. All the dying declarations are consistent to the fact that it is the appellant/accused who poured kerosene on the deceased and lit fire and thereby she caught in flames, and received burn injuries. It is not in dispute that the deceased succumbed to burn injuries while undergoing treatment in the hospital. However, the learned Judge having accepted the dying declarations proceeded to cateqorize the death of the deceased as dowry death and accordingly recorded conviction of the appellant/accused for the offence under Section 304 B IPC. State did not chose to file an appeal questioning the acquittal of the appellant/accused for the offence under Section 3021PC. 13. It has been held in State of Andhra Apradesh V. Thadi Narayana6 that Section 423(1)(b)(1) of Cr.P.C, 1898 (which corresponds to Section 386(b)(i) of Code of criminal Procedure, 1973) is clearly confined to cases of appeals preferred against orders of conviction and sentence, the powers conferred by this clause cannot be exercised for the purpose of reversing an order of acquittal passed in favour of a party in respect of an offence charged, in dealing with an appeal preferred by him against the order of conviction in respect of another offence charged and found proved. Therefore, I am refraining from expressing any opinion as to whether the appellant/accused could be held guilty for having committed murder punishable under Section 302 IPC on the basis of the evidence available on record as the acquittal under the aforesaid charge has attained finality and cannot be reversed in the appeal filed by the appellant/accused challenging his conviction under section 304 B IPC. 14. 14. The basic ingredients to attract the provisions of Sec.304-B IPC are as follows: (i) the death of a woman should be caused by burns or fatal injury or otherwise than under normal circumstances; (ii) such death should have occurred within seven years of her marriage; (iii) she must have been subjected to cruelty or harassment by her husband or any relative of her husband; and (iv) such cruelty or harassment should be for or in connection with demand for dowry. 15. A question came up for consideration before a Full Bench of this Court in Public Prosecutor v. N.J.Sreeramulu7 as to where demand of property or valuable security after the marriage even without any prior agreement between the partie to the marriage constituted dowry as defined in Section 2 of Dowry Prohibition Act. It has been held by the Full Bench that there need not be an agreement at or before or after the marriage between the parties to constitute the definition of "dowry". Any demand made before or at or after the marriage for any property or valuable security falls within the definition of "dowry". A mere demand for dowryl additional dowry after the marriage is punishable, on the other ingredients being satisfied. 16. The decision of this Court in Nunna Venkateswarlu v. State of A.P. came to be overruled by the Full Bench in N.J. Sreeramulu's case and therefore the proposition of law laid down by the learned two single judges in the decisions referred to above is no more good in law. 17. The Supreme Court in State of A.P. v. Raj Gopal Asawa9 held that demand of dowry even without prior agreement falls within the scope of Sec. 304-B IPC. I deem it appropriate to refer paragraphs 6 and 7 of the said judgment and they read as under: "(6) THE term "dowry" has been defined in section 2 of the Dowry Prohibition Act, 1961 (in short 'dowry Act') as under: "section 2. I deem it appropriate to refer paragraphs 6 and 7 of the said judgment and they read as under: "(6) THE term "dowry" has been defined in section 2 of the Dowry Prohibition Act, 1961 (in short 'dowry Act') as under: "section 2. Definition of 'dowry' In this Act, 'dowry' means any property or valuable security given or agreed to be jiven either directly or indirectly (a) by one party to a marriage to the other party to the marriage; or (b) by the parents of either party to a marriage or by any other person, to cither party to the marriage or to any other person at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mehr in the case of persons to whom the Muslim personal law (Shariat) applies. Explanation I For the removal of doubts, it is hereby declared that any presents made at the time of a marriage to either party to the marriage in the form of cash, ornaments, clothes or other articles, shall not be deemed to be dowry within• the meaning ofthis section, unless they are made as consideration for the marriage of the said parties. Explanation II The expression 'valuable security' has the same meaning in section 30 of the Indian Penal Code (45 of 1860)." (7) .EXPLANATION to Section 304-8 refers to dowry "as having the same meaning as in Section 2 of the Act", the question is : what is the periphery of the dowry as defined therein? The argument is, there has to be an agreement at the time of the marriage in view of the words "agreed to be given" occurring therein, and in the absence of any such evidence it would not constitute to be a dowry. It is noticeable, as this definition by amendment includes not only the period before and at the marriage but also the period subsequent to the marriage. This position was highlighted in Pawan Kumar and or5. v. State of Haryana ( 1998 (3) SCC 309 ). 18. The settled proposition of law is to constitute a demand as a dowry demand, there need not be any agreement at or before or after the marriage between the parties. Any demand made before or after the marriage for any property or valuable security falls within the definition of dowry. 18. The settled proposition of law is to constitute a demand as a dowry demand, there need not be any agreement at or before or after the marriage between the parties. Any demand made before or after the marriage for any property or valuable security falls within the definition of dowry. 19. Facts, which are not in dispute, are that the deceased got married on 3.11.2000 and she died of burn injuries while undergoing treatment in the hospital on 6.11.2001. It can be said without any controversy that the deceased died of burn injuries within seven years of her marriage. 20. Learned counsel appearing for the appellant/accused submits that there is no consistency with regard to the quantum of amount demanded by the accused and therefore the evidence brought on record is insufficient to infer that the deceased was subjected to cruelty or harassment soon before her death. Learned counsel took me to the evidence of P.Ws.5 to 7 to point out contradiction in the quantum of amount allegedly demanded by the accused. P.W.5 stated that the accused asked the deceased to get Rs.5,000/-. P.W.6 stated that the deceased told her that the demands made by the accused. P.W.7 stated that the deceased told him of the demands made by the accused. It is no doubt true that p.Ws.6 and 7 did not specifically state the quantum of amount demanded by the accused on the date of occurrence. But, P.Ws.5 to 7 consistently stated that the accused demanded the deceased to bring money. P.W.5 is the mother, P.W.6 is the adopted mother and P.W.7 is the maternal uncle of the deceased and they are proper witnesses to speak of the demands made by the accused and consequent harassment on the deceased. They consistently stated that the accused demanded the deceased to bring money and harassed her on that score. 21. All the three dying declarations of the deceased spoken out by P.Ws.5 to 7 are consistent and therefore I do not see any valid reason to discard the oral dying declarations of the deceased. There are two written dying declarations, which have been exhibited as EX.P.7 and P.2. P.W.3 is the Metropolitan Magistrate who recorded EX.P.2 dying declaration of the deceased on 1 .11.2001 at 1.30 p.m. P.W.11 is the Sub-Inspector of Police who recorded Ex. P. 7 dying declaration of the deceased on 1.11.2001 at 1400 hours. There are two written dying declarations, which have been exhibited as EX.P.7 and P.2. P.W.3 is the Metropolitan Magistrate who recorded EX.P.2 dying declaration of the deceased on 1 .11.2001 at 1.30 p.m. P.W.11 is the Sub-Inspector of Police who recorded Ex. P. 7 dying declaration of the deceased on 1.11.2001 at 1400 hours. The written dying declarations are consistent to the fact of the accused harassing the deceased to bring money. There is no reason to discard the written dying declarations of the I deceased recorded by P.Ws.3 and 7. 22. The evidence brought on record clearly established that the accused harassed the deceased to bring money. The trial Court considered the evidence brought on record in right perspective and found the appellant/ accused guilty for the offences under Sections 304-8 and 498-A IPC. I do not see any valid ground to interfere with the judgment impugned in this appeal. 23. Accordingly, this Criminal Appeal fails I and it is hereby dismissed. The bail bonds furnished by the appellant/accused shall stand cancelled. The appellant/accused shall surrender before the trial Court to serve out the balance of sentence of imprisonment imposed on him for the offences under sections 304-8 and 498-A IPC.