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2008 DIGILAW 544 (AP)

Gunda Koteswara Rao v. State of Andhra Pradesh

2008-07-22

GOPALA KRISHNA TAMADA

body2008
JUDGMENT :- The appellant, his mother, father and brother were tried as accused Nos.1 to 4 in Sessions Case No.47 of 1999 by the learned III Additional District and Sessions Judge, Ongole, for the offence punishable under Section 302 or alternatively under Section 304-B of the Indian Penal Code (for short "IPC"). The learned Sessions Judge, considering the evidence on record, acquitted the appellant and A2 to A4 of the offence punishable under; Section 302 IPC, and A2 to A4 of the offence under Section 304-B IPC, however, convicted the appellant (A1) for the offence punishable under Section 304-B IPC and sentenced him to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.2,000/-, in default to undergo simple imprisonment for a period of one year. Assailing the said conviction and sentence, the appellant A1 preferred this criminal appeal. 2. The charge framed against the accused by the trial Court is as follows: "Firstly that you Al to A4 on or about the 1st day of August, 1998 at about 5.00 p.m., at your house in D.G.K. 300 weavers colony, Chirala, did commit the murder by intentionally or knowingly causing the death of Gunda Krishnavani W/o Koteswara Rao, aged 21 years, Padmasali, D.G.K. 300 Weavers colony, Chirala (the deceased) and thereby committed an offence punishable under Section 302 of the Indian Penal Code and within my cognizance. Or alternatively On or about the same day, same time and same place as mentioned in charge No.1 supra, caused the death of Gunda Krishnavani W/o Koteswara Rao, aged 21 years, Padmasali, D.G.K. 300 Weavers Colony, Chirala (the deceased) within seven years of her marriage before her death by subjecting her to cruelty or harassing her by you viz., Al to A4 either in connection with any demand of dowry or otherwise and that you have thereby committed an offence punishable under Section 304-B of the Indian Penal Code and within my cognizance.'" . 3. For the sake of convenience, the parties hereafter referred to as per their status in the Sessions Case. 4. The case of the prosecution, culled out from the evidence on record, is as follows. The accused are the residents of D.G.K. 300 Weavers colony in Cheerala Town, Prakasam District. 3. For the sake of convenience, the parties hereafter referred to as per their status in the Sessions Case. 4. The case of the prosecution, culled out from the evidence on record, is as follows. The accused are the residents of D.G.K. 300 Weavers colony in Cheerala Town, Prakasam District. One Gunda Krishna Veni (hereafter called as "the deceased"), the daughter of Kothavarapu Subba Rao and K. Vijayalakshmi (PWs.1 and 2, respectively), was married to Al on 28.5.1997. At the time of marriage, a sum of Rs.12,000/- was given to Al towards dowry. Al and the deceased led happy conjugal life for a period of four months. Later, all the, accused started harassing her for additional dowry on the ground that one of their relative brought dowry of Rs.50,000/-, whereas she brought less dowry. Unable to bear the said harassment, the deceased committed suicide by hanging, on 1.8.1998. Coming to know of the same, A4 went to the house of PWs.1 and 2 and reported that the deceased is unconscious and asked them to come to the house of the accused. Immediately, they rushed there at about 6.00 p.m. and found their daughter dead. However, they took their daughter to the hospital on a plank rickshaw, where she was declared dead by the doctor. Suspecting that the accused were responsible for the said death, they lodged a report-Ex. P1 with the police against the accused, which was registered as a case in Crime No.62 of 1998 by the Chirala II Town Police. The Sub-Inspector of Police, Chirala II Town Police Station issued express FIR to all the concerned. On receipt of the same, the Deputy Superintendent of Police (PW.13) took up investigation on 2.8.1998. He visited the Weavers colony, examined PWs.3 to 7 and recorded their statements. Later, the Mandal Revenue Officer, Chirala, (pW.12) conducted inquest over the dead body of the deceased in the presence of mediators. Then the dead body was sent to the Area Hospital, Chirala, where, the-Civil Assistant Surgeon (pW.1 0) conducted autopsy over the dead body of the deceased and issued Ex.P8-post-mortem report opining that the deceased would appear to have died due to hanging, ante-mortem in nature and the time of the death was 12 to 24 hours prior to the post-mortem examination. On 11.8.1998, the Sub-Inspector of Police arrested the accused and sent them to the Court for remand. On 11.8.1998, the Sub-Inspector of Police arrested the accused and sent them to the Court for remand. After receipt of the post-mortem report and after completing investigation, charge - sheet was laid against the accused. 5. In order to bring home the guilt of the accused, the prosecution examined PW s.1 to 13 and marked Exs.P1 to P9. On behalf of defence, DW.1 was examined, but no documentary evidence was adduced. 6. The plea of the accused was of total denial. According to them, the deceased was very sensitive and she was suspecting fidelity of the appellant, as he was coming late to the house after selling fruits, which might have forced her to take the extreme step of committing suicide. To establish the same, he examined one of his neighbours as D.W.1. 7. Considering the evidence on record, the trial Court, while acquitting accused Nos.2 to 4 of the offence punishable under Section 304-B IPC and all the accused under Section 302 IPC, convicted and sentenced appellant/A1, as stated supra. Hence, this appeal by A1. 8. Sri T Bali Reddy, learned Counsel representing Sri Nimmagadda Satyanarayana, learned Counsel for the appellant/A1, contended that there is absolutely no evidence of the independent witnesses to prove that the appellant is responsible for the death of the deceased and in the absence of the same, the evidence of PWs.1 and 2, who are the parents of deceased and interested in this case, and whose evidence is full of improvements, alone shall not be taken into consideration to convict the appellant. According to him, the aspect of demanding additional dowry on the ground of giving dowry to one of the relatives of the accused is only invented for the purpose of this case and the same does not find place even in Ex.P1, and therefore, it is clear that the alleged demand for dowry was an after thought to falsely implicate the appellant and the other accused. The learned Counsel further contended that the Sub-Inspector of Police, who registered Ex.P1 report, on the basis of which criminal law was set into motion, is not examined and therefore, the same is fatal to the case of the prosecution. 9. The learned Counsel further contended that the Sub-Inspector of Police, who registered Ex.P1 report, on the basis of which criminal law was set into motion, is not examined and therefore, the same is fatal to the case of the prosecution. 9. The learned Additional Public Prosecutor, opposing the said submissions, contended that the marriage of the deceased with the appellant took place on 28.5.1997 and the death occurred on 1.8.1998 and as the death is unnatural, that too within a span of fifteen months, the trial Court rightly drew presumption under Section 113-B of the Indian Evidence Act against the appellant The learned Additional Public Prosecutor further contended that the evidence of PWs.1, 2 and 5 is sufficient to come to the conclusion that the deceased took the extreme step of committing suicide solely on account of the harassment meted out by her for dowry from the appellant and hence, the trial Court is justified in convicting the appellant. 10. Before dealing with the rival contentions, it is pertinent to see as to what are the basic ingredients to attract the provisions of "Section 304-B IPC, and they are as under : (I) the death of a woman should be caused by bums or fatal injury or otherwise than under normal circumstances; (2) such death should have occurred within seven years of her marriage; (3) she must have been subjected to cruelty or harassment by her husband or any relative of her husband; and (4) such cruelty or harassment should be for or in connection with demand for dowry. Further, as per Section 113-B of the Evidence Act a person accused of an offence punishable under Section 304-B IPC is presumed to have committed dowry death if 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. 11. In the instant case, there is no dispute that the deceased died within seven years of her marriage and the death was also unnatural. However, satisfying the said two requirements is not sufficient. It shall also be established that the appellant harassed the deceased and it was for or in connection with dowry. Therefore, it is apt to refer to Ex.P1-report, Which is earliest in point of time. However, satisfying the said two requirements is not sufficient. It shall also be established that the appellant harassed the deceased and it was for or in connection with dowry. Therefore, it is apt to refer to Ex.P1-report, Which is earliest in point of time. According to Ex.P1, the marriage of the deceased was performed on 28.5.1997 and the appellant and other accused looked after her well for a period of three months and thereafter, they started harassing her to bring some more dowry on the pretext that dowry given was not sufficient. PW.1 sent his daughter to tell the accused that they are poor and even they did not discharge the debts incurred for the marriage. 12. Except stating that the accused harassed the deceased for additional dowry, there is nothing in Ex.P1 as to how and why the appellant harassed the deceased. However, for the first time during the course of evidence, PW.1 deposed that the appellant harassed the deceased for additional dowry on the pretext that one of his relative was given dowry of Rs.50, 000/-. Definitely, this is an improvement and the Court can take note of it. Of course, it is true that the first information report need not contain all the details, but as the main allegation is with regard to the additional dowry based on the said aspect, if it is really true, PW.1 ought to have mentioned all the aspects relating to the alleged demand for dowry in Ex.P1. However, without making any mention, for the first time' he deposes the same in the Court. 13. Further, the evidence of PW.2, who is none other than the mother of the deceased, is to the very same effect. Simply because PWs.1 and 2 are the parents of the deceased and interested in the case of the prosecution, their evidence need not be brushed aside. However, when their evidence is full of improvements, definitely, the Court has to be very careful while considering the same. 14. PWs.3 and 4, who are the neighbours of the accused turned hostile and they did not support the version of the prosecution. Corning to the evidence of PW.5, an independent witness and who also is stated to be a neighbour of the accused also did not speak specifically about the alleged harassment. 14. PWs.3 and 4, who are the neighbours of the accused turned hostile and they did not support the version of the prosecution. Corning to the evidence of PW.5, an independent witness and who also is stated to be a neighbour of the accused also did not speak specifically about the alleged harassment. What he stated in the chief-examination is that after the marriage, the appellant and the deceased lived happily, but after the marriage of a relative of the appellant at Mangalagiri, the appellant started harassing her for more dowry and thus their relationship stained. Therefore, his evidence is not helpful to the prosecution. 15. The evidence on record does not clearly establish the alleged harassment and demand for dowry by the accused. In my considered view, to bring home the guilt of the appellant for the offence punishable under Section 304-B IPC, it must be specifically proved as to how the alleged demand has taken place because, there is every possibility of foisting a false case when the married woman dies within a short period of the marriage. No doubt, it is true that the deceased was aged about 21 years and died within a span of 15 months from the date of marriage. For that reason alone this Court cannot draw a presumption under Section 113-B of the Indian Evidence Act and hold that the appellant is responsible for the death, without satisfying the requirements of Section 304-B IPC. 16. Further, PW.10, the doctor, during the course of post-mortem examination detected nine bodily injuries on the body of deceased and they are extracted as under : "1. Extended face 2 cm below the angle of the mandible to the midline of the anterior aspect of the neck, obliquely present measuring about 8 cm x I cm left side. 2. Another ligature mark seen on the right side of the neck extending from mid line of the anterior aspect of the neck to the posterior border of the stermo cledo mastraid. Transversely placed measuring about 1- cm x 5 cm and about 6 cm below the angle of the mandible. 3. Congestion on the right side of the neck. Right supra clavicular muscle, 12-24 hours. 4. Abrasions two in number on the right crastal margin medial, measuring about 1 x1/2cm lateral one measuring about 3 x 1 cm 12 to 24 hours duration. 5. 3. Congestion on the right side of the neck. Right supra clavicular muscle, 12-24 hours. 4. Abrasions two in number on the right crastal margin medial, measuring about 1 x1/2cm lateral one measuring about 3 x 1 cm 12 to 24 hours duration. 5. An abrasion measuring 14 cm x 2 1/2 cm on the left calf region 12 to 24 hours. 6. Abrasions measuring about 4 cm x 4 cm on the right calf of the back of the leg. 7. Abrasion measuring about 8 x 2 cm on the left side of the back of the elbow. 8. Reddish discolouration seen on the backside of the lower portion of the elbow on the posterior aspect. 9. Hypostasis seen on the left upper arm." From the above it is clear that items 1 and 2 are ligature marks and they are on account of the suicide by hanging. With regard to items 3 to 9 neither in the evidence of PW.10 nor in the post-mortem report there is any mention whether they are post-mortem or ante-mortem. The opinion of PW.l0 is only to the effect that the deceased died due to hanging ante-mortem in nature and time of death is 12-24 hours. In fact, in Ex.P7-inquest report nothing is mentioned about the said injuries found on the body of the deceased. As per column No.VII of Ex.P7, the inquestdars found a ligature mark in red colour around the neck of the deceased, which definitely relates to the act of hanging. 17. In fact, it is the case of defence that the body of the deceased was taken immediately to the area hospital thinking that she is still alive and the doctor, on examination, declared her dead. Therefore, the said injuries might have been caused during the course of transit from the house of the appellant to the hospital as the body was carried on a plank rickshaw. Even PW.10 also did not rule out the possibility of causing the said injuries when the body was taken on a plank rickshaw. In the cross-examination he has categorically stated that injuries 3 to 9 will be possible when the deceased was being carried on a plank rickshaw before the death. Therefore, the statement of PW.10 fits into the theory of the defence. 18. In the cross-examination he has categorically stated that injuries 3 to 9 will be possible when the deceased was being carried on a plank rickshaw before the death. Therefore, the statement of PW.10 fits into the theory of the defence. 18. A cumulative effect of all the above aspects clearly establishes that the prosecution has not proved the guilt of the appellant for the offence punishable under Section 304-B IPC beyond all reasonable doubt, and therefore, the trial Court erred in convicting the appellant for the offence punishable under Section 304-B IPC. 19. Accordingly, the criminal appeal is allowed setting aside the conviction and sentence imposed on the appellant/A1 by the learned III Additional District and Sessions Judge, Ongole, in SC No.4 7 of 1999, vide judgment dated 5.7.2004. The appellant shall be set at liberty forthwith. If any fine amount is paid by the appellant, the same shall be refunded to him.