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2008 DIGILAW 352 (AP)

Udatha Madhava Rao v. State of Andhra Pradesh

2008-06-10

B.SESHASAYANA REDDY

body2008
JUDGMENT This criminal appeal is directed against the judgment dated 21.9.2002 passed in Sessions Case No.241 of 1998 on the file of I Additional Sessions Judge, Guntur, whereby and where under the learned Additional Sessions Judge found Al Udatha Madhavarao guilty for the offence under Section 304-B IPC and sentenced him to undergo rigorous imprisonment for seven years. 2. The prosecution case in brief is :- Al Udatha Madhavarao is son of A2 Udatha Anjaneyulu and A3 Udatha Dhanapurna @ Annapurna. A4 Udatha Sambasivarao and A6 Udatha Brahmarao are brothers and A5 Udatha Arunakumari is sister of Al Udatha Madhavarao. PW.I A. Venkateswarlu and PW.2 A. Annapurna are husband and wife and their daughter is Ganga Devi. They performed the marriage of Ganga Devi with Al Udatha Madhavarao in the year 1993. The gave cash of Rs.20,000/- and presented gold ornaments worth of Rs.5,000/- at the time of marriage. Apart from cash and gold ornaments, they presented household articles worth of Rs.5,000/- to Al and promised to pay Rs.5,000/- later. Ganga Devi lived with A1 at Cherukupalli. During that period Al to A6 demanded Ganga Devi to bring money from her parents and resorted to harass her on that ground. A year thereafter, Al and Ganga Devi shifted to Tenali. Even at Tenali, the accused harassed Ganga Devi to bring money from her parents. A year thereafter, Ganga Devi and A1 shifted to Cherukupalli. Two months thereafter, they shifted to Adavula Devi, where they lived for about six months. In spite of residence being shifted from place to place, there is no change in the attitude of A1 to A6. By the date of occurrence, A1 and Ganga Devi were residing at Pragada Kotaiah Nagar, Tenali and Ganga Devi was carrying 5th month pregnancy. When PW.I visited the house of Al at Tenali, the accused beat Ganga Devi in his presence. 10 days prior to the date of occurrence, Musini Veeraiah, eldest son-in-law of PWs.1 and 2, visited the house of Al at Tenali and requested him to send Ganga Devi for parental home, for which the accused abused him in filthy language and attempted to kill Ganga Devi by pouring kerosene. Neighbours came in rescl,le of Ganga Devi and foiled the attempts of the accused. A quarrel took place between Al and Ganga Devi on the evening of date of incident. Neighbours came in rescl,le of Ganga Devi and foiled the attempts of the accused. A quarrel took place between Al and Ganga Devi on the evening of date of incident. Subsequently, the body of Ganga Devi (hereinafter referred to as 'the deceased') came to be spotted in the canal at Kuchipudi locks. PW.1 presented EX.PI report before the Station House Officer, Amruthaluru Police Station on 12.8.1997 at 5.30 p.m. PW.I4 N. Syam Sundar, Sub Inspector of Police, Amruthaluru P.S., received EX.Pl report and registered a case in Crime No.36 of 1997 for the offence under Section 304-B IPC and issued EX.P9 FIR. He sent requisition to the MandaI Executive Magistrate, Amruthaluru, to conduct inquest over the dead body of the deceased. PW.13. K. Nagoor, MandaI Executive Magistrate, Amruthaluru, conducted inquest on the dead body of the deceased on 13.8.1997 in the presence of PW.ll M. Sivaramkrishna Sastry and PW.12 K. Narasimhaiah. EX.P7 is the inquest report. After the inquest, the dead body was sent for post-mortem examination. PW.10 Dr. K. Hema, CAS, Government Hospital, Tenali, conducted autopsy on the dead body of the deceased on 13.8.1997 at 3.30 p.m. She issued Ex.P6 post-mortem examination report opining that the deceased would appear to have died of asphyxia due to drowning in water. PW.15 ME. Ranjit, Sub-Divisional Police Officer, Tenali inspected the scene of offence in the presence of PW.12 K. Narasimhaiah and L W.17 Meka Rambabu and prepared Ex.P8 observation report and Ex.P 10 rough sketch of the scene. He arrested the accused on 15.8.1997 at 6.00 p.m. at their residence and sent them for remand on the following day. After receipt of the post-mortem examination report and on completing the investigation, he laid a charge-sheet before the Additional Judicial Magistrate of First Class, Tenali. 3. The learned Magistrate took the charge-sheet on file as P.R.C. No.52 of 1997 and committed the case to the Sessions Division, Guntur, as the offence under Section 304-B IPC is exclusively triable by a Court of Session. The learned Sessions Judge took the case on file as Sessions Case No.241 of 1998 and made over the same to the Court of I Additional Sessions Judge, Guntur, for disposal according to Law. 4. Learned Additional Sessions Judge, on hearing the prosecution and the accused, framed charges under Sections 498-A and 304-B IPC. The learned Sessions Judge took the case on file as Sessions Case No.241 of 1998 and made over the same to the Court of I Additional Sessions Judge, Guntur, for disposal according to Law. 4. Learned Additional Sessions Judge, on hearing the prosecution and the accused, framed charges under Sections 498-A and 304-B IPC. He read over and explained the same to the accused, for which the accused pleaded not guilty and claimed to be tried. 5. To bring home the guilt of the accused for the offences with which they stood charged, prosecution examined 15 witnesses and proved 11 documents. On behalf of the accused, a portion in the 161 Cr.P.C. statement of PWA has been marked as EX.D1. The plea of the accused was that the deceased slipped in a canal and thereby met with death. 6. The learned Additional Sessions Judge, on appreciation of the evidence brought on record and on hearing the prosecution and the accused, found Al Udatha Madhavarao guilty for the offence under Section 304-B IPC and convicted him accordingly and sentenced him to undergo rigorous imprisonment for seven years, by judgment datal 21.9.1998. However, the learned Additional Sessions Judge found A2 to A6 not guilty for the offence under Section 304-B IPC and acquitted them accordingly. Hence, this criminal appeal by the appellant/A1. 7. Heard learned Counsel appearing for the appellant/A1 and learned Additional Public Prosecutor appearing for the respondent/State. 8. Learned Counsel appearing' for the appellant/A1 submits that except the interested testimony of PWs.1 to 3, there is no evidence to prove that the deceased was harassed soon before her death and therefore, the conviction and sentence of the appellant/ Al for the offence under Section 304-B IPC is not legal and proper and the same is liable to be set aside. He further submits that the eldest son-in-law of PWs.1 and 2, in whose presence A1 allegedly beat the deceased, has not been examined as a witness and therefore, his non-examination is fatal to the prosecution case, and in which case, there is no evidence to prove that the deceased was harassed soon before her death on the ground of additional dowry. 9. Learned Additional Public Prosecutor supported the judgment impugned under appeal. 10. 9. Learned Additional Public Prosecutor supported the judgment impugned under appeal. 10. The gravamen of the charge against the accused is that they harassed the deceased on the ground of additional dowry and the deceased being not able to bear with the harassment committed suicide by drowning in a canal. In away, the death of the deceased as projected by the prosecution is a dowry death punishable - under Section 304-B IPC. 11. The essential ingredients of Section 304-B IPC are: (1) The death of woman should be caused by burns or bodily injury and otherwise than under normal circumstances: (2) Such death should have been occurred within seven years of her manage; (3) She must have been subjected to cruelty or harassment by her husband or relatives of her husband; (4) Such cruelty or harassment should be for or in connection with demand for dowry. 12. The Supreme Court held in Biswajit Halder v. State of West Bengal, 2007 (2) ALD (Crl.) 975 (SC) = (2008) 1 SCC (Crl.) 172, that subjecting the deceased to cruelty and harassment must be shown to be for or in connection with the demand for dowry. 13. The expression 'soon before death' is explained by the Supreme Court in Hiralal v. State (Govt. of NCT) Delhi, 2003 (2) ALD (Crl.) 184 (SC) = 2003 AIR SCW 3570, which read as hereunder: '''The determination of period which can come within the tenn '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 the 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 no consequence." The period which can come within the tern 'soon before' is left to be detennined by the Courts depending upon the facts and circumstances of each - Vide the decision of the Supreme Court in Kailash v. State 'Of MP.. 2006 (2) ALD (Crl.) 900 (SC) = 2006 AIR SCW 5126 14. 2006 (2) ALD (Crl.) 900 (SC) = 2006 AIR SCW 5126 14. PW.1 A. Venkateswarlu is father, PW.2 A. Annapurna is mother, P.W.3 A. Laxmi Jyoti is brother of the deceased. PWA D. Narasamma is neighbour to PW.1 to 3. PW.5 A. Sambasiva Rao is younger brother of PW.1. PW.6 M Siva Balakoteswara Rao is resident of Advuladeevi. He did not support the prosecution and the prosecution declared him hostile and marked his 161 statement as EX.P.2 in the cross-examination. PW.7 Abdul Sattar, P.W.8 T. Koti Veeraiah and P.W.9 J. Narasimha Rao also did not support the prosecution and the prosecution declared them hostile and marked their 161 statement in the crossexamination as Exs.P.2 to P.5. P.W.10 Dr. Smt. K. Hema is the post-mortem doctor. P.W.11 Mulukutla Siva Rama Krishna Sastry is the MandaI Revenue Inspector of Amarthu1uru who acted as a panch witness for the inquest held on the dead body of the deceased. PW.12 Kuchipudi Narasimhaiah is the panch witness for the observation of the scene and inquest held on the dead body of the deceased. P.W.13 Katru Nagu is the MandaI Revenue Officer, Amarthaluru who conducted inquest on the dead body of the deceased. PW.14 N Syamasundar, Sub-Inspector of Police who received EX.P.1 report and registered a case in Cr.No.36 of 1997 and issued EX.P.9 FIR. P.l5 ME. Ranjit is the Investigating Officer. 15. PWs.1 to 5 are the material witnesses to speak of the harassment meted out by the deceased in the hands of appellant/A1 for not bringing the balance dowry of Rs.5,000/-. PW.l testifies that he promised to pay Rs.25,000/- as dowry to appellant/A I at the time of marriage and paid Rs.20,000/- on the date of marriage and promised to pay the balance of Rs.5,000/-. He also testifies that he gave house hold articles worth Rs.5,000/- and gold ornaments worth Rs.5,000/- at the time of marriage. He further testifies that the appellant! A I demanded the deceased to bring the balance dowry of Rs.5,000/- and indeed sent her out from the marital home to get the balance dowry. 20 days prior to the date of occurrence, he secured Rs400/-from P.WA and gave the same to the deceased. With the amount given by him the deceased was about to leave for marital home. The appellant/A 1 came to the house of PW.1 and enquired with the deceased as to what amount she secured. 20 days prior to the date of occurrence, he secured Rs400/-from P.WA and gave the same to the deceased. With the amount given by him the deceased was about to leave for marital home. The appellant/A 1 came to the house of PW.1 and enquired with the deceased as to what amount she secured. Thereupon the deceased told him that she secured Rs400-/only. The appellant/A1 abused the deceased in filthy language for not securing the amount required by him and he even beat her and thereafter took her to his house. PW s.2, 3 and 4 supported the version of PW.I in all material particulars. The evidence of PW s.l to 4 is crystal clear that the appellants/Al sent the deceased to her parental home to get the balance dowry, but the deceased could secure only Rs400/- for which the appellant! A 1 felt dissatisfied and abused her and even resorted to physical assaults. This piece of evidence is sufficient to bring home the guilt of the appellant/Al for the offence under Section 498-A IPC. 16. The question is whether the deceased was subjected to harassment on the ground of dowry soon before her death. It is the evidence of P.W.2 that her first son-in-law viz. Veeraiah went to the house of appellant/A1 and his son-in-law learnt from the deceased that she was being harassed by all the family members of the appellant/AI. She requested the said Veeraiah to inform the same to her father P.W.I. For better appreciation I may refer the evidence of P.W.2 in his own words and it is thus: "After the incident my first son-in-law Veeraiah went to the house of A1. My daughter informed to my son-in-law that she has been harassing. by all the family members of AI. And also informed to be present by myself and P.W.1. While we are trying to go to the village of A I, we received a telephone call through neighbours of my house. After receiving the telephone call my husband (P.W.I) and my first son-in-law and also my husband's brother's son went to the village of A1. My husband P.vy.1 and my son-in-law Veeraiah went to the village and searched the canal bunds on that day. Next day morning P. W.I came and informed that the deceased whereabouts are no known." According to PW.2, her first son-in-law Veeraiah who got first hand information with regard. My husband P.vy.1 and my son-in-law Veeraiah went to the village and searched the canal bunds on that day. Next day morning P. W.I came and informed that the deceased whereabouts are no known." According to PW.2, her first son-in-law Veeraiah who got first hand information with regard. to the harassment meted out to the deceased in the hands of her husband (appellant!AI). But the prosecution did not examine the said Veeraiah as a witness. Unless Veeraiah is examined, whatever information given by Veeraiah to PWs.1 and 2 is inadmissible. The trial Judge has relied on inadmissible evidence and thereby erred in recording the conclusion that the deceased was subjected to harassment on the ground of dowry soon before her death. Therefore the conviction and sentence of appellant! A I for the offence under Section 304-B IPC is not legal and proper and the same is liable to be set aside. The offence made out against the appellant/AI is one under Section 498-A IPC. 17. At this stage, the de facto complainant who has been examined as P.W.I and the appellant/AI presented Crl. M.P. No.977 of 2008 seeking permission to compound the offence under Section 498-A IPC. In view of Cr M.P. No.977 of 2008 being allowed permitting the parties to compound the offence under Section 498-A IPC by a separate order, the appellant/AI is acquitted of the same. 18. In the result, the criminal appeal is allowed. The fine amount, if any, paid by the appellant/Al is ordered to be refunded to him.