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2023 DIGILAW 7 (AP)

Kota Gouru v. State Of A. P.

2023-01-02

B.V.L.N.CHAKRAVARTHI, C.PRAVEEN KUMAR

body2023
JUDGMENT : (C. Praveen Kumar, J.) 1. Accused Nos.1 to 3 in Sessions Case No.14 of 2014 on the file of the Court of the learned II Additional Sessions Judge at Parvatipuram, are the appellants herein. They were tried for the offences punishable under Sections 304-B, 302 IPC and Sections 3 & 4 of the Dowry Prohibition Act. Vide judgment dated 15.10.2015, the learned Sessions Judge, convicted all the three accused for the offences under Sections 302 and 304-B IPC and sentenced each of them to suffer rigorous imprisonment for life and to pay fine of Rs.500/- each, in default, to suffer rigorous imprisonment for a period of three months each for the offence under Section 302 IPC. They were also found guilty for the offence under Section 304-B IPC and sentenced to suffer rigorous imprisonment for a period of seven years each. However, the accused were acquitted for the offences punishable under Sections 3 & 4 of the Dowry Prohibition Act. 2. The facts in issue are as under: PW1 is the father of the deceased. PW2 is the brother of PW1. PW3 is a resident of Pedamedapalli village, who knows the deceased and the accused. The marriage of the deceased with A1 was performed about five months prior to the incident. At the time of marriage, cash of Rs.35,000/-, ½ tola ring was given as dowry to A1 apart from household articles worth Rs.75,000/-. After marriage, the deceased joined the accused at Bogavalasa. Apart from the accused and the deceased, younger brother of A1 and younger sister of A1 were also living in the said house. It is said that the accused and the deceased lived happily for one month and thereafter disputes arose when the deceased became pregnant. It is the case of the prosecution that all the accused were harassing the deceased as she got pregnancy due to illegal contacts with others. The said fact was informed by the deceased to PW1 over phone and also personally when she came to the house of PW1. But PW1 used to convince the deceased and send her. About 3 or 3 ½ months after the marriage, PW1 went to the house of the accused and tried to convince the accused about the chastity of the deceased. But PW1 used to convince the deceased and send her. About 3 or 3 ½ months after the marriage, PW1 went to the house of the accused and tried to convince the accused about the chastity of the deceased. At that time all the accused demanded Rs.50,000/- towards cash for retaining pregnancy failing which they threatened to cause abortion to the deceased. PW1 agreed to pay the amount by adjusting and went to Hyderabad where he is doing coolie work. On 03.09.2012, at about 07:30 PM, PW1 received telephonic message from one Naradi stating that the deceased died. Immediately, he started from Hyderabad to Bogavalasa village along with his wife and his second daughter and reached there on 04.09.2012 at about 12:00 noon. They proceeded to the house of the accused and noticed the body of the deceased kept in front of the house of the accused on a supplier table. The found bleeding injuries on both sides near the ears and the entire hair was encircling the neck. Immediately, he set the law into motion by lodging a report with PW12. Ex.P.1 is the said report. Basing on the said report, a case in Crime No.63 of 2012 of Salur Rural Police Station came to be registered under Section 174 Cr.P.C. Ex.P.15 is the original FIR. He requested the Mandal Executive Magistrate, Salur, to provide two mediators to hold panchanama of the scene of offence and also inquest. In the presence of PW9 he got the dead body and scene of offence photographed. He examined PWs1 to 3 and recorded their statements. Ex.P7 is the scene observation report. At the scene of offence, he seized one chata, broken mirror frame and broken mirror pieces etcetera. He also got prepared rough sketch of the scene of offence, which is marked as Ex.P16. On the same day, the Mandal Executive Magistrate also conducted inquest over the dead body in the presence of PW.9. Ex.P.6 is the inquest report. After conducting inquest, he sent the dead body for post mortem examination. PW10, who was working as Civil Assistant Surgeon in Government Hospital, Salur, conducted autopsy on the dead body and issued Ex.P12 - Post Mortem Certificate. According to him, the cause of death was due to asphyxia due to the injury over neck. Ex.P.13 is the final opinion. After conducting inquest, he sent the dead body for post mortem examination. PW10, who was working as Civil Assistant Surgeon in Government Hospital, Salur, conducted autopsy on the dead body and issued Ex.P12 - Post Mortem Certificate. According to him, the cause of death was due to asphyxia due to the injury over neck. Ex.P.13 is the final opinion. It was further opined that there is a possibility of damage to blood vessels if pressure is applied on the neck. PW13 who took up further investigation altered the section of law on receipt of post mortem report. He also verified the investigation done and seized the wedding cards etc., and thereafter handed over investigation to PW14, who is said to have arrested the accused on 13.09.2012 and interrogated them separately from 10:30 AM to 12:00 Noon, wherein the accused have confessed about the commission of offence. Pursuant to the confession made under Ex.P8, sickle (MO7) and wooden pestle (MO6) alleged to have been used in the commission of the offence were recovered. Ex.P9 is the seizure report. After collecting all the necessary documents, a charge sheet came to be filed, which was taken on file as P.R.C.No.2 of 2013 on the file of the Court of the learned Judicial Magistrate of First Class, Salur. 3. On appearance of the accused, copies of the documents, as required under Section 207 Cr.P.C., were supplied to them. As the offences are triable by a Court of Sessions, the case was committed to the Court of Sessions under Section 209 Cr.P.C. Thereafter, the same was made over to the Court of the learned VII Additional Sessions Judge, (FTC), Visakapatnam, for trial and disposal in accordance with law. 4. Basing on the material available on record, charges, as referred to earlier, came to be framed, read over and explained to the accused in Telugu to which, they pleaded not guilty and claimed to be tried. 5. To substantiate its case, the prosecution examined P.Ws.1 to 14 and got marked Exs.P-1 to P-21 and M.Os.1 to 10. After closure of prosecution evidence, the accused were examined under Section 313 Cr.P.C., with reference to the incriminating circumstances appearing against them in the evidence of the prosecution witnesses to which they denied. No oral or documentary evidence was adduced on behalf of defence. 6. After closure of prosecution evidence, the accused were examined under Section 313 Cr.P.C., with reference to the incriminating circumstances appearing against them in the evidence of the prosecution witnesses to which they denied. No oral or documentary evidence was adduced on behalf of defence. 6. Relying upon the evidence of PWs1 to 3 coupled with the medical evidence, the learned Sessions Judge convicted all the accused for the offence punishable under Sections 302 & 304-B IPC. Challenging the same, the present appeal came to be filed. 7. Sri G. Vijaya Saradhi, learned counsel for the appellants-accused mainly submits that there is no legal evidence available on record to connect the accused with the crime. According to him, when the chastity of the deceased is in doubt, question of retaining pregnancy on payment of Rs.50,000/- is highly improbable. In other words, demanding an amount of Rs.50,000/- for retaining the pregnancy, when chastity is attributed to the deceased is unbelievable. Learned counsel further submits that, in the absence of any evidence to show that the accused were present in the house at the relevant time, invoking the presumption under Section 106 of the Indian Evidence Act is bad in law. Insofar as demanding an amount of Rs.50,000/- is concerned, he would submit that the same is not mentioned in Ex.P1 report and as such the said demand is not established. Even otherwise also he would contend that the said amount of Rs.50,000/- alleged to have been demanded does not constitute dowry. 8. On the other hand, Sri Soora Venkata Sai Nath, learned Special Assistant Public Prosecutor opposed the same. Placing reliance on the decision of the Apex Court in State of Madhya Pradesh v. Jogendra and another [2022 LiveLaw (SC) 37], he would contend that though the demand was not in connection with the marriage but any demand made for money attracts Section 304-B IPC. Insofar as the offence under Section 302 IPC is concerned, he would contend that since the deceased was living in the house of the accused and in the absence of any explanation from the accused as to how the deceased died, the trial Court was right in convicting the accused under Section 302 IPC as well. In other words, his argument is that there can be a conviction both under Section 302 IPC and Section 304-B IPC in respect of same incident. 9. In other words, his argument is that there can be a conviction both under Section 302 IPC and Section 304-B IPC in respect of same incident. 9. Point that arises for consideration is: Whether the prosecution is able to bring home the guilt of the accused for the offence under Sections 302 & 304-B IPC beyond all reasonable doubt? 10. One of the first objection which requires to be answered is whether there can be a conviction under Section 302 IPC and 304-B IPC in respect of the same incident. It is to be noted here that the charge under Section 304-B IPC is only an alternate charge to one under Section 302 IPC. The trial Court framed both the charges and convicted the accused under both the counts. But as held by the Apex Court in catena of decisions, a charge under Section 304-B IPC can only be an alternate charge to one under Section 302 IPC. Further, where the prosecution was able to prove that the cause of death is homicidal and that it relates to the person against whom the said charge is framed, convicting under Section 304-B IPC by raising a presumption under Section 113B of the Indian Evidence Act would not arise. In order to convict an accused under Section 304-B IPC, the prosecution has to prove that the death took place within 7 years of the marriage and soon before the death, there was harassment for or in connection with dowry and thirdly it should be an unnatural death. 11. Issue identical came up for consideration before a Division Bench of the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh in Shaik Jani Pasha and Ors. Vs. State of Andhra Pradesh [2017 ALD (Cri) 1034]. The facts in the said case were that the trial Court convicted the appellants for the offences under Section 302 IPC and also under Section 304-B IPC but did not impose separate sentence for the latter offence. In that connection, the Division Bench relied upon a decision of the Hon’ble Supreme Court in Rajbir v. State of Haryana [ (2010) 15 SCC 116 ] wherein all the trial Courts in India were directed to ordinarily add Section 302 IPC to the charge under Section 304-B IPC so that death sentences could be imposed in heinous and barbaric crimes against women. The Division Bench while considering the said direction, referred to the decision in Jasvinder Saini v. State (Government of NCT of Delhi) [ (2013) 7 SCC 256 ] to show that the said direction was not meant to be followed mechanically and without due regard to the nature of the evidence available in the case and what the Hon’ble Supreme Court in Rajbir (supra) meant to say was that in a case where a charge alleging dowry death is framed, a charge under Section 302 IPC can also be framed if the evidence otherwise permits, and the question whether it is a murder punishable under Section 302 IPC or dowry death punishable under Section 304-B IPC depends upon the fact situation and the evidence in the case; that if there is evidence whether direct or circumstantial to prima facie support a charge under Section 302 IPC, the trial Court can and indeed ought to frame a charge of murder punishable under Section 302 IPC, which would then be the main charge and not an alternative charge as is erroneously assumed in some quarters and that if the main charge of murder is not proved against the accused at the trial, the Court can look into the evidence to determine whether the alternative charge of dowry death punishable under Section 304-B IPC is established. The Court further observed that the ingredients constituting the two offences are different, thereby demanding appreciation of evidence from the perspective relevant to such ingredients, and accordingly held as under: “29. While a person can be charged for both the offences under Sections 302 and 304-B IPC, if the facts prima facie attract the ingredients of both these Sections, he cannot be convicted for both the said offences falling under these provisions. The reason for this is not far to seek. Section 304-B IPC, which deals with dowry death, is attracted where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry. Section 113-B of the Indian Evidence Act raises a presumption as to dowry death. Section 113-B of the Indian Evidence Act raises a presumption as to dowry death. Under this provision, when the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. In contrast, under Section 302 IPC, causing of death by a person is established either by direct or circumstantial evidence. 30. Dealing with Section 304-B IPC, the Supreme Court in Bakshish Ram and another vs. State of Punjab [ (2013) 4 SCC 131 ] held as under: "This section will apply whenever the occurrence of death is preceded by cruelty or harassment by the husband or in-laws for dowry and death occurs in unnatural circumstances. The intention behind this section is to fasten guilt on the husband or in-laws though they did not in fact caused the death." It therefore necessarily follows that once the guilt of a person under Section 302 IPC is established, Section 304-B IPC disappears from the scene. In other words, while Section 302 IPC and Section 304-B IPC can co-exist till the end of trial, they are mutually exclusive at the stage of adjudication of the guilt or otherwise of the accused. On the analysis as above, we hold that the lower Court ought to have dropped the charge under Section 304-B IPC on its finding the appellants guilty of committing the offence under Section 302 IPC.” 12. Having regard to the above, the conviction of the accused under both the counts in our view may not be correct. 13. Coming to the evidence on record, in order to prove that it is case of homicidal death, the prosecution is mainly relying upon the evidence of the Doctor (PW10) who conducted post mortem examination to show that the death is a homicidal death. A perusal of the evidence of the Doctor (PW10) would show that there were seven external injuries on the body and according to the doctor, the death was due to asphyxia due to injury over the neck. A perusal of the evidence of the Doctor (PW10) would show that there were seven external injuries on the body and according to the doctor, the death was due to asphyxia due to injury over the neck. Though the seven external injuries noted by the post mortem doctor does not contain an injury on the neck, but the internal findings show that tongue congested, pharynx congested, neck structures damaged and trachea was congested. Probably under those circumstances, the Doctor opined that the death was due to injury to neck. It may be true that death was due to injury to the neck but there is no evidence on record to show that these accused were responsible for the same. 14. The fact that the deceased was living with the accused is not in dispute. It is also not in dispute that along with A1, number of other persons namely younger brother and younger sister of A1, who are not arrayed as accused, were also living in the house along with A1 and deceased in one house. That being the position and in the absence of any positive evidence on record to show as to the persons present in the house at the relevant point of time, connecting the accused with the crime by invoking Section 106 of the Indian Evidence Act, in our view may not be proper. It is also to be noted here that to invoke Section 106 of the Evidence Act, the prosecution has to discharge its initial burden by showing the presence of the accused in the house at the relevant time of the incident and thereafter alone burden shifts on to the accused to explain as to how and under what circumstances the deceased died. 15. On this aspect learned Special Assistant Public Prosecutor tried to contend that in view of the defence taken by the accused that the deceased died due to a fall from ‘ataka’ when the deceased was taking out a rice bag, would establish the presence of the accused in the house as the said suggestion would lead to an inference that they witnessed the deceased falling down from the ‘ataka’. But merely because a suggestion is given that the deceased fell down from ‘ataka’ while removing a rice bag may not in all circumstances establish the presence of the accused in the house at the relevant point of time. But merely because a suggestion is given that the deceased fell down from ‘ataka’ while removing a rice bag may not in all circumstances establish the presence of the accused in the house at the relevant point of time. Having regard to the circumstances and the nature of injuries, probability of accused surmising that the death could have been due to fall, cannot be brushed aside/ignored. Hence, we feel that the conviction of the accused under Section 302 IPC may not be proper. 16. Coming to the offence under Section 304-B IPC, the findings of the learned Sessions Judge in paragraph 26 of the judgment impugned read as under: “…..It is pertinent to note that during the course of examination of accused under Section 313 Cr.P.C., they had categorically admitted about payment of cash of Rs.35,000/-, ½ tula gold ring and household articles wroth Rs.75,000/- by PW1. But there is no evidence to show the accused had demanded for payment of dowry in the form of cash, gold and household articles. The evidence shows that at the time of marriage PW1 gave Rs.35,000/- cash, ½ tula gold ring and household articles wroth Rs.75,000/- to A1. PW1 also did not depose that on the demand made by the accused, he paid the said cash, gold and household articles. Thus, in my considered view the prosecution failed to prove any demand by the accused for dowry at the time of marriage, and for payment of the said gold, cash and other household articles by PW1 on the specific demand made by A1 to A3. But, the prosecution established that all the accused demanded Rs.50,000/- for retaining pregnancy. Therefore, a cumulative reading of the entire evidence adduced by the prosecution proves the guilt of the accused for committing murder of the deceased and dowry death and thus in my considered view the prosecution had established and proved the charges u/Sec.302, 304-B IPC only and the prosecution failed to prove the charges under Sec.3 and 4 of the Dowry Prohibition Act, beyond all reasonable doubts..’ 17. From a reading of the above findings, it is clear that the trial Court opined that the prosecution failed to prove any demand by the accused for dowry at the time of marriage and for payment of said gold, cash and other household articles by PW1 on specific demand made by A1 to A3. From a reading of the above findings, it is clear that the trial Court opined that the prosecution failed to prove any demand by the accused for dowry at the time of marriage and for payment of said gold, cash and other household articles by PW1 on specific demand made by A1 to A3. But the only fact which made the trial Court to convict the accused under Section 304-B IPC appears to be that the accused were demanding Rs.50,000/- for retaining pregnancy. It is no doubt true that the said fact was not mentioned in the first information report. The first information report is not an encyclopedia which contain all the details. Facts which are necessary to set the law into motion are required to be mentioned in the FIR. The answers elicited in the cross examination of PWs1 to 3 would indicate demand of Rs.50,000/- for retaining pregnancy of the deceased was mentioned in the earlier statement recorded by the police immediately thereafter. In fact in the cross examination of PW1, it was elicited as under: “It is not true to suggest that the accused did not receive any dowry from me. When the accused demanded Rs.50,000/- for retaining pregnancy of the deceased, I assured to give that amount within two or three months. At that time the deceased had completed 3rd months’ pregnancy. I did not provide any phone to the deceased. The deceased had informed me over phone from the phone of the accused. When the accused demanded Rs.50,000/- for retaining pregnancy, there was no outsider present at that time.” Similarly suggestion was put to PW3 namely that he did not state this fact to police, but the same was denied. The omission, if any, was not suggested or elicited in the evidence of the Investigating Officer. 18. The question now is whether this demand can be brought within the ambit of dowry. Recently a three-judge Bench of the Apex Court in State of Madhya Pradesh v. Jogendra and another [2022 Live Law (SC) 37] while dealing with an issue as to whether the demand of money for construction of a house would fall within the ambit of dowry, held as under, after referred to Rajinder Singh v. State of Punjab [ (2015) 6 SCC 477 ], wherein Section 2 of the Dowry Prohibition Act was dealt with: “12. In the light of the above provision that defines the word “dowry” and takes in its ambit any kind of property or valuable security, in our opinion, the High Court fell into an error by holding that the demand of money for construction of a house cannot be treated as a dowry demand. In Appasaheb’s case [supra] referred to in the impugned judgment, this Court had held that a demand for money from the parents of the deceased woman to purchase manure would not fall within the purview of “dowry”, thereby strictly interpreting the definition of dowry. This view has, however, not been subscribed to in Rajinder Singh’s case [supra] wherein it has been held that the said decision as also the one in the case of Vipin Jaiswal[a-1] v. State of Andhra Pradesh represented by Public Prosecutor, do not state the law correctly. Noting that the aforesaid decisions were distinct from four other decisions of this Court, viz., Bachni Devi and Another v. State of Haryana, Kulwant Singh and Others v. State of Punjab, Surinder Singh v. State of Haryana, and Raminder Singh v. State of Punjab, the Court opined that keeping in mind the fact that Section 304-B was inserted in the IPC to combat the social evil of dowry demand that has reached alarming 10 (2013) 3 SCC 684 11 (2011) 4 SCC 427 12 (2013) 4 SCC 177 13 (2014) 4 SCC 129 14 (2014) 12 SCC 582 proportions, it cannot be argued that in case of an ambiguity in the language used in the provision, the same ought to be construed strictly as that would amount to defeating the very object of the provision. In other words, the Court leaned in favour of assigning an expansive meaning to the expression “dowry” and held thus :- “20. Given that the statute with which we are dealing must be given a fair, pragmatic, and common sense interpretation so as to fulfil the object sought to be achieved by Parliament, we feel that the judgment in Appasaheb case [Appasaheb v. State of Maharashtra, (2007) 9 SCC 721 (2007) 9 SCC 721 : (2007) 3 SCC (Cri) 468] followed by the judgment of Vipin Jaiswal [Vipin Jaiswal v. State of A.P., (2013) 3 SCC 684 : (2013) 2 SCC (Cri) 15] do not state the law correctly. We, therefore, declare that any money or property or valuable security demanded by any of the persons mentioned in Section 2 of the Dowry Prohibition Act, at or before or at any time after the marriage which is reasonably connected to the death of a married woman, would necessarily be in connection with or in relation to the marriage unless, the facts of a given case clearly and unequivocally point otherwise. [emphasis added]” “Any rigid meaning would tend to bring to naught, the real object of the provision. Therefore, a push in the right direction is required to accomplish the task of eradicating this evil which has become deeply entrenched in our society.” In view of the aforesaid decision, the contention of learned Special Assistant Public Prosecutor that the demands made in respect of articles and other things which do not form part of the amount or articles agreed upon to be paid or given at the time of marriage also fall within the meaning of dowry cannot be brushed aside. Hence, the conviction of the accused for the offence under Section 304-B IPC cannot be said to be incorrect. 19. In the result, the conviction and sentence recorded by the learned II Additional Sessions Judge at Parvathipuram vide judgment, dated 15.10.2015, in Sessions Case No.14 of 2014 against the appellants/A1 to A3 for the offence punishable under Section 302 I.P.C. is set aside. However, the conviction and sentence recorded against the appellants/A1 to A3 for the offence punishable under Section 304-B IPC are confirmed. The period of detention undergone by the appellants/Accused Nos.1 to 3 during the course of investigation, trial of the case and after conviction shall be given set off under Section 428 Cr.P.C. 20. Accordingly, the Criminal Appeal is partly allowed.