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2008 DIGILAW 72 (AP)

Yellamanda Chand Basha v. State of Andhra Pradesh

2008-02-04

B.PRAKASH RAO, L.NARASIMHA REDDY

body2008
L. NARASIMHA REDDY, J :- A woman by name Yellamanda Shamimunissa, wife of the 1st appellant, died on 28.10.2002. Her husband, the 1st appellant, and her parents-in-law, appellants 2 and 3, were tried for the offence punishable under Section 304-B of the Indian Penal Code (for short 'IPC') and Section 4 of the Dowry Prohibition Act (for short 'the Act'). The 1st appellant was also tried for the offence punishable under Section 307 IPC, by the Court of IV Additional Sessions Judge (FTC.), Tirupathi, in S.C. No.97 of 2003. Through its judgment dated 9.1.2006, the trial Court acquitted the 1st appellant of the charge under Section 307 IPC, but convicted all the appellants for the offence punishable under Section 304-B IPC and sentenced them to undergo imprisonment for life. They were also convicted for the offence under Section 4 of the Act and were sentenced to undergo imprisonment for three months each. Hence, this appeal. 2. The case, as presented by the prosecution, before the trial Court, was that: The deceased was married to the 1st appellant in the year 1998 and they lived happily for some-time. Thereafter, the 1st appellant started harassing the deceased for additional dowry, and in the 1st instance, a sum of Rs. 3,000/- was paid as additional dowry, and two months thereafter, a sum of Rs.10,000/- was paid for purchase of an auto. Subsequently, the 1st appellant demanded a further sum of Rs. 2,000/-, for repair of auto, and since that amount was not paid, he took the deceased to outskirts of the village and pushed her into a well. The deceased somehow survived and the 1st appellant assured the father and brother of the deceased, P.Ws.1 and 2, respectively, that he will look after her well. In the meanwhile, he developed illegal intimacy with one Shahanaj. On 28.10.2002, a telephone call was received by P.W.l to the effect that his daughter became unconscious and was shifted to hospital and when he went there, he found his daughter dead. He gave a complaint, marked as Ex.P.1, alleging that the death of the deceased was on account of harassment by the appellants. 3. The police undertook the investigation and examined various witnesses. Inquest and the post-mortem of the dead body were conducted and charges under the relevant provisions were framed. The appellants pleaded not guilty. The Trial Court held, as mentioned above. 4. 3. The police undertook the investigation and examined various witnesses. Inquest and the post-mortem of the dead body were conducted and charges under the relevant provisions were framed. The appellants pleaded not guilty. The Trial Court held, as mentioned above. 4. Sri C. Padmanabha Reddy, learned Senior Counsel for the appellants, submits that even according to P.W.l, the father of the deceased, the appellants 2 and 3 were residing at a separate place for a long time, before the date of incident and there was not even allegation that they have ever made any demand or otherwise harassed the deceased. He contends that even as against the 1st appellant, there is no evidence to convict him. Learned Counsel further submits that the prosecution miserably failed either to prove the alleged acts of harassment such as pushing the deceased into a well on earlier occasion, or of demanding any amount towards dowry, much less, additional dowry. Learned Counsel further submits that the evidence of P.W.I, even if taken on its face value, at the most suggests that the demand was for payment of amount, not amounting to harassment or cruelty. It is pointed out that in the statement recorded under Section 161 Cr.P.C., the said witnesses furnished totally different reasons, as to the cause of death of the deceased. 5. The learned Additional Public Prosecutor submits that this is one of the rare cases where the accused have committed the murder of not only the deceased but also the fetus in her. He contends that P.Ws. l and 3 have consistently stated as to the manner in which the accused was demanding amounts from time to time and the harassment to which the deceased was subjected. Learned Additional Public Prosecutor further submits that though some of the witnesses have turned hostile, the circumstances of the case clearly disclose the harassment for dowry on the part of the appellants. 6. Independent charges under Sections 307 and 304-8 IPC and Section 4 of the Dowry Prohibition Act were framed against the appellants. The prosecution examined as many as 17 witnesses and filed Exs.P1 to P23. P.Ws. l to 3 are the father, brother and paternal uncle, respectively, of the deceased. P.Ws4 to 12 and 14, the witnesses, examined by the prosecution, to speak to various circumstances, were declared hostile. P.W.13 is the Doctor, who conducted the post-mortem. The prosecution examined as many as 17 witnesses and filed Exs.P1 to P23. P.Ws. l to 3 are the father, brother and paternal uncle, respectively, of the deceased. P.Ws4 to 12 and 14, the witnesses, examined by the prosecution, to speak to various circumstances, were declared hostile. P.W.13 is the Doctor, who conducted the post-mortem. P.W.IS is the Mandal Revenue Officer, who conducted the inquest. P.W.l6 is a witness to the inquest. P.W.17 is the Investigating Officer. Exs.P1 to P9 are the statements recorded under Section 161 Cr.P.C. from various witnesses. EX.PI4 is the inquest report and Ex.P11 is the postmortem certificate. 7. The charge under Section 307 was held not proved by the trial Court itself. However, the evidence in relation thereto becomes irrelevant in the context of the presumption provided for under Section 113-B of the Evidence Act to sustain charge under Section 304-B IPC. 8. The ingredients that are required to be proved in a case under Section 304-8 IPC were identified by the Hon'ble Supreme Court in M. Srinivasulu v. State of A.P., 2007 (2) ALD (Crl.) 883 (SC), and the following were enlisted: (i) The death of a woman should be caused by bums or bodily injury or otherwise than under a normal circumstance. (ii) Such a 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. (iv) Such cruelty or harassment should be for or in connection with demand of dowry. (v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death. 9. In the instant case, the death of the deceased occurred otherwise than, under normal circumstances; and within seven years from the date of marriage. Therefore, the 1st two ingredients are present. The dispute is about the cause viz., whether it was on account of cruelty or harassment by the husband or relatives of the deceased, and if so, the stage at which such harassment was caused. 10. Neither in EX.Pl nor in his deposition as P.W.1, in the Court, P.W.1 had mentioned any acts of cruelty or harassment. At the most, his evidence suggests that the 1st appellant has been demanding amounts from time to time and that he was complying with the demands. 10. Neither in EX.Pl nor in his deposition as P.W.1, in the Court, P.W.1 had mentioned any acts of cruelty or harassment. At the most, his evidence suggests that the 1st appellant has been demanding amounts from time to time and that he was complying with the demands. Mere making a demand of amounts, unless followed by an element of cruelty of harassment, does not attract the provisions of Section 304-B IPC. The compliance with the demands, without any protest is another factor, which needs to be taken into account. It suggests that the demand was for a comfortable living of the newly wedded couple and that the parents also felt the necessity of the same. The effort is only to drive home the point that as long as there was no allegation of harassment, physical or otherwise, the fact that the appellants made certain demands for amounts such as Rs.3,000/-, Rs.10,000/-, that too for purchase of auto to eke out livelihood, cannot be treated as harassment for dowry, particularly, when such demands are said to have been acceded to without any demur. 11. The circumstances, under which the deceased died, were stated by P. W.l himself, in the statement recorded from him under Section 161 Cr.P.C. which is marked as EX.P2. The relevant portion reads as under: "On 30.7.2002 in the night time while he brought meat, she cooked the same and had taken meals. She suffered vomiting. Her in-laws and her husband took her to the Piler Hospital. By that time as my daughter fell unconscious, doctor advised to take her to Tirupati. On the same night at about 10.45 p.m. they took her to Maternity Hospital, Tirupati, in a Jeep. There, the Duty Doctor informed that she died. After lapse of about two hours they took her in another jeep to Rompicherla and reached at about 11.00 a.m. on 31.7.2002." This, however, was not spoken to by him in the chief-examination. His attention was drawn to this, in the cross-examination. Though in the post-mortem report, it was indicated that the death is on account of "blunt injury in the abdomen" and that no external injuries were found, it becomes difficult to relate the death of the deceased to any acts and omissions on the part of the 1st appellant. 12. His attention was drawn to this, in the cross-examination. Though in the post-mortem report, it was indicated that the death is on account of "blunt injury in the abdomen" and that no external injuries were found, it becomes difficult to relate the death of the deceased to any acts and omissions on the part of the 1st appellant. 12. P.W.1 himself admitted in his deposition that appellants 2 and 3 were residing elsewhere and he did not attribute anything to them, either in the context of demand or the basis thereto. 13. Section 113-B of the Evidence Act, enables the Court to draw inference, as to harassment or cruelty, on the basis of such acts on earlier occasion. In this case, there is nothing on record to prove any earlier acts of harassment or cruelty. P.Ws.8 and 10 were examined to prove that on a previous occasion, the 1st appellant had pushed the deceased into a well on the ground that she did not bring amount of Rs.2,000/- from her parents. Both the witnesses turned hostile and nothing important was elicited from them, in the cross-examination. 14. The 1st appellant had spoken to the circumstances under which the deceased died, during the course of examination under Section 313 Cr.P.C. Apart from pleading not guilty, he alleged that he was falsely implicated by two Constables, who are relatives of the deceased, since their demands were not complied with. We find it difficult to sustain the conviction of the appellants on the unsupported testimony of P.W.s.1 and 2. Hence, we allow the appeal and set aside the conviction and sentence against the appellants. They shall be set at liberty forthwith unless required in any other case.