HIGH COURT OF ANDHRA PRADESH
TUESDAY ,THE SECOND DAY OF JANUARY
TWO THOUSAND AND TWENTY FOUR
PRSENT
THE HONOURABLE SRI JUSTICE A V RAVINDRA BABU
CRIMINAL APPEAL NO: 1225 OF 2009
Between:
1. MAMIDI MARIADASU, S/o Nanaiah
Coolie,
R/o Lachannagudipudi Village,
Tadikonda Mandal,
Guntur District.
...PETITIONER(S)
AND:
1. THE STATE OF AP REP BY ITS PP HYD., rep. by its Public Prosecutor,
High Court of A.P., at Hyderabad.
...RESPONDENTS
Counsel for the Petitioner(s): MD SALEEM
Counsel for the Respondents: PUBLIC PROSECUTOR (AP)
The Court made the following: ORDER
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HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
****
CRIMINAL APPEAL No.1225 OF 2009
Between:
Mamidi Mariadasu, S/o Nanaiah, aged about
27 years, Coolie, R/o Lachannagudipudi Village,
Tadikonda Mandal, Guntur District. ... Appellant/Accused.
Versus
The State of Andhra Pradesh, rep. by Public Prosecutor,
High Court of A.P. ... Respondent/Complainant.
DATE OF JUDGMENT PRONOUNCED: 02.01.2024
SUBMITTED FOR APPROVAL:
HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
1. Whether Reporters of Local Newspapers
may be allowed to see the judgment? Yes/No
2. Whether the copy of judgment may be
marked to Law Reporters/Journals? Yes/No
3. Whether His Lordship wish to see the
Fair copy of the judgment? Yes/No
______________________
A.V.RAVINDRA BABU, J
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* HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
+ CRIMINAL APPEAL No.1225 OF 2009
% 02.01.2024
# Between:
Mamidi Mariadasu, S/o Nanaiah, aged about
27 years, Coolie, R/o Lachannagudipudi Village,
Tadikonda Mandal, Guntur District. ... Appellant/Accused.
Versus
The State of Andhra Pradesh, rep. by Public Prosecutor,
High Court of A.P. ... Respondent/Complainant.
! Counsel for the Appellant:
Sri Shaik Meeravalli, learned counsel,
representing Sri Md. Saleem.
^ Counsel for the Respondent : Public Prosecutor
< Gist:
> Head Note:
? Cases referred:
(2008) 12 Supreme Court Cases
(2004) 4 SCC 470
This Court made the following:
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HON’BLE SRI JUSTICE A.V. RAVINDRA BABU
CRIMINAL APPEAL NO.1225 OF 2009
JUDGMENT:-
Challenge in this Criminal Appeal is to the judgment, dated
12.10.2009 in Sessions Case No.628 of 2008, on the file of I
Additional District & Sessions Judge, Guntur (“Additional
Sessions Judge” for short), whereunder the leaned Additional
Sessions Judge, found the accused guilty of the charge under
Sections 304-B as well as 498-A of the Indian Penal Code (“IPC”
for short), convicted him under Section 235(2) of the Code of
Criminal Procedure (“Cr.P.C.” for short) and after questioning
him about the quantum of sentence, sentenced him to suffer
rigorous imprisonment for 7 years for the charge under Section
304-B of IPC and further sentenced him to undergo rigorous
imprisonment for 2 years and to pay a fine of Rs.100/- in default
to suffer simple imprisonment for 15 days for the charge under
Section 498-A of IPC and that both the sentences shall run
concurrently.
2) The parties to this Criminal Appeal will hereinafter
be referred to as described before the learned Additional
Sessions Judge for the sake of convenience.
3) The Sessions Case No.628 of 2008 arose out of a
committal order in PRC.No.77 of 2008, on the file of Additional
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Junior Civil Judge, Mangalagiri, pertaining to Crime No.12 of
2007 of Tadikonda police station.
4) The case of the prosecution, in brief, according to the
contents of charge sheet filed by the State, represented by the
Sub-Divisional Police Officer, Guntur Rural Police Station, is as
follows:
(i) One Mamidi Mariamma (hereinafter will be called as
“deceased”) is the wife of the accused. Their marriage took
place about five years back. The accused and the deceased lived
happily for about two years and they have begotten two
children. Thereafter the accused got addicted to alcohol and
started harassing the deceased by subjecting her to both
physically and mentally for additional dowry. The deceased
informed her parents, P.W.1 and P.W.9, who on the first
occasion gave a ceiling fan and cash of Rs.5,000/- to the
accused. The accused was not satisfied and continued harassing
the deceased on one pretext or the other. About three months
prior to the date of offence, the deceased and the accused came
to the house of P.W.1 and P.W.9 at Nidumukkala Village. As per
the demand of the accused, P.W.1 and P.W.9 purchased a shebuffalo worth about Rs.9,500/- and gave it to the accused. Still
the accused continued to harass the deceased in spite of his
parents‟ reprimanding him.
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(ii) On 01.12.2007 at about 7-00 p.m., a quarrel took
place between the deceased and the accused as the deceased
intended to present clothes to her sister which was refused by
the accused on the ground that he had no money. Then the
deceased questioned the accused how he has got money for
consuming alcohol. Then the accused beat the deceased in the
presence of his mother and P.W.2 who reprimanded the
accused, and sent him away. The mother of the accused along
with the son of the accused left the house for prayers leaving
the deceased alone in the house. The deceased having got
vexed with the attitude of her husband, committed suicide by
consuming poison.
(iii) On a report given by P.W.1 on 02.02.2007, P.W.7
registered the crime and P.W.8 took up the investigation.
Inquest was held over the body of the deceased by P.W.5, the
Mandal Revenue Officer and other panch witnesses. The body of
the deceased was sent for postmortem examination. The doctor,
who conducted autopsy, opined that the deceased appears to
have been died due to Organo Phosphorous poison. During the
course of investigation, P.W.8 visited the scene of offence,
observed the scene, seized the material objects available at the
scene of offence, prepared a rough sketch and recorded the
statements of the witnesses. The material objects were sent to
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the RFSL for analysis. During the course of investigation, the
accused was arrested on 06.02.2007 and sent for remand. After
completion of investigation, a charge sheet was filed before the
Additional Junior Civil Judge, Mangalagiri.
5) The learned Additional Junior Civil Judge, Mangalagiri,
took cognizance of the case under Sections 304-B and 498-A of
IPC. After appearance of the accused and on compliance of the
provisions contemplated under Section 207 of Cr.P.C., the
learned Additional Junior Civil Judge, committed the case to the
Court of Sessions, thereupon it was numbered the same as
Sessions Case and made over to the Court of learned I
Additional District & Sessions Judge, Guntur, for disposal, in
accordance with law.
6) On appearance of the accused before the learned
Additional Sessions Judge, charge under Section 304-B as well
as 498-A of IPC were framed and read and explained to the
accused in Telugu for which he pleaded not guilty and claimed to
be tried.
7) In order to establish the guilt against the accused, on
behalf of the prosecution, P.W.1 to P.W.12 were examined and
Ex.P.1 to P.9 were marked. After closure of the evidence of
prosecution, accused was examined under Section 313 of
Cr.P.C. with reference to the incriminating circumstances
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appearing in the evidence let in by the prosecution, for which he
denied the same and stated that he has no defence witnesses.
8) The learned Additional Sessions Judge on hearing
both sides and on considering the oral as well as documentary
evidence, found the accused guilty of the charge under Sections
304-B as well as 498-A of IPC and after questioning him about
the quantum of sentence, sentenced him as above. Felt
aggrieved of the same, the unsuccessful accused filed the
present appeal.
9) Now, in deciding the present criminal appeal, the
points for determination are as follows:
(1) Whether the prosecution proved that on
01.02.2007 accused caused the death of deceased
by subjecting her to cruelty both mentally and
physically with a demand to bring money as
additional dowry?
(2) Whether the prosecution proved the charge
under Sections 304-B as well as 498-A of IPC
beyond reasonable doubt?
(3) Whether the judgment, dated 12.10.2009 of the
learned Additional Sessions Judge is sustainable
under law and facts and whether there are any
grounds to interfere with the same?
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Point Nos.1 to 3:
10) P.W.1 was no other than the defacto-complainant
being the mother of the deceased. According to her, her third
daughter was Mariamma, who was given in marriage to the
accused about seven years ago prior to her evidence. Her
daughter died about more than two years ago. The deceased
and accused lived together happily for few years. Later, the
accused started harassing the deceased demanding to get more
dowry. They were blessed with one son and daughter. The
accused was demanding more money and she paid. She was
giving an amount of Rs.2,000/- whenever accused was
demanding. She paid an amount of Rs.10,000/- on one occasion
and further an amount of Rs.10,000/- to purchase a she-buffalo
at another occasion. Her daughter was beaten and she was
made consumption of pesticide resulting her death. In the
month of February during midnight her daughter consumed
pesticide. Then she along with neighbours went to the house of
accused and found the dead body of her deceased daughter.
Neither the accused nor any of his inmates were found when
they reached there. They went to the police station and gave a
report. Ex.P.1 is the report. She is an illiterate. They found
injury on the head of the deceased. There was one injury on the
back side of the head. Though she observed the other injuries,
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the Sub-Inspector of Police objected her. The deceased died due
to harassment of the accused. The Mandal Revenue Officer and
police examined her.
11) P.W.9 was father of deceased, who spoke about the
marriage between the deceased and accused about five years
ago prior to the incident and that they lived together happily for
some time. Thereafter, the accused started to harass his
daughter to get more money. He paid Rs.5,000/- at one
occasion and Rs.10,000/- at another occasion. Accused informed
to the Pastor of their village that their daughter died. On receipt
of the information, he went to the house of accused and found
the deceased at the house of the accused with an injury on her
head. He was present at the time of inquest held over the dead
body of the deceased.
12) P.W.10 was brother of the deceased and he
supported the case of the prosecution. According to him, on
receiving a phone call from the Pastor they went to the house of
accused and found the dead body of the deceased. By then none
were present. Accused was given cash of Rs.16,000/-, gold
studs and silver anklets. They gave Rs.5,000/- at one occasion
and Rs.9,500/- at another occasion to purchase a she-buffalo on
demand made by the accused. Accused beat the deceased and
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murdered her for money. He was present at the time of inquest
over the dead body of the deceased.
13) P.W.11 was a hearsay witness and according to him,
the deceased died about three years back in connection with the
demand for additional dowry.
14) P.W.12, cousin of the deceased, was such that the
deceased was married to the accused five years prior to the date
of her death. By the time they went to the house of accused,
they were told that the deceased was done to death. The
deceased and her husband were cordial. Whenever they asked
P.W.1 was giving some money.
15) Apart from the evidence of P.W.1, P.W.9 to P.W.12,
the kith and kin of the deceased, prosecution examined P.W.2,
who supported to a certain extent about the case of the
prosecution. The evidence of P.W.2 is that she is a coolie worker
and she knows the accused, who is their villager. She knows the
deceased-Mariamma, who died three years back by consuming
pesticide. She does not know why the deceased consumed
pesticide. The deceased and accused used to live cordially. She
did not witness the deceased consuming pesticide. Neither the
accused nor his parents were present in the house. The
prosecution got declared her as hostile and during cross
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examination she denied that she stated before police as in
Ex.P.2.
16) P.W.3 was the inquest panchayatdar, who supported
the case of the prosecution. According to him, originally he was
a Panchayat Secretary to Ravela village and in February, 2007,
he was in-charge Panchayat Secretary of Lachannagudipudi. He
was present at the time of inquest over the dead body of the
deceased which was held during mid-day. Surpanch and ExSurpanch were also present by then. They were of the opinion
that the deceased committed suicide by consuming pesticide
due to family disputes in connection with additional amounts.
Ex.P.3 is Inquest panchanama prepared by the police.
17) P.W.4, mediator for observation of the scene of
offence, deposed that at request of police he was present at the
time of observation of the scene of offence on 02.02.2007. He
had seen the dead body of the deceased. Ex.P.4 is the scene of
observation report. He signed on it.
18) Turing to the evidence of P.W.5, the Mandal
Executive Magistrate, he testified that at the request of Station
House Officer, Tadikonda, he conducted inquest over the dead
body of the deceased on 02.02.2007 at 11-00 a.m. He could
complete it by 1-00 p.m. They found some injuries on the head
and left side above ear of the dead body. He examined P.W.1,
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P.W.2, L.W.2-Akkaiah, L.W.3-Jojibabu, L.W.4-Vijayaraju and
L.W.5-Gunti Vijaya Raju. They were of the view about the
injuries found on the dead body of the deceased and opined that
she died due to harassment. After inquest, the dead body was
sent for postmortem examination.
19) P.W.6 was Medical Officer, who conducted autopsy
over the dead body of the deceased. According to him, on
02.02.2007 he conducted postmortem examination over the
dead body of Mamidi Mariamma at about 4-30 p.m. and found a
cut injury present on left temporial region of skull size 1 x 2
cms., size with bone deep. He further spoke of the internal
findings and his evidence with regard to the opinion is that the
cause of death is due to consumption of Organo Phosphorous
insecticide poison. Ex.P.5 is the postmortem report and Ex.P.6 is
the RFSL report.
20) P.W.7 was Sub-Inspector of Police, who registered
FIR, basing on Ex.P.1 and he spoke of the registration of FIR on
receipt of report from P.W.1 on 02.02.2007 at 6-00 a.m. and
issued Ex.P.7 original FIR. He informed to SDPO, Guntur Rural,
about the registration of FIR. As per the instructions of SDPO,
he went to the scene of offence and made arrangements for
guarding the scene of offence. SDPO took up investigation in
this case.
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21) P.W.8 was SDPO, who was the investigating officer.
According to him, on 02.02.2007 at 6-50 a.m., he received
information from the Sub-Inspector of Police, Tadikonda Police
Station, about the registration of subject matter of FIR. He
instructed the Sub-Inspector of Police to give requisition to
Mandal Revenue Officer to conduct inquest. He also instructed
the Sub-Inspector of Police to proceed to the scene of offence
and to take measures to guard the same. At 8-30 p.m., he
visited Lachannagaudipadu village and met P.W.7 at the scene
of offence. He has gone through the FIR handed over by P.W.7.
He secured the presence of P.W.3 and T. Usha Rani, Surpanch of
the village and inspected the scene of offence and prepared
Ex.P.4-observation report. After inquest was conducted by the
Mandal Executive Magistrate, he examined P.W.1, Akkaiah,
Jogipababu, Anjaneyulu, Vijaybabu and Sudersanam Seetha. He
prepared rough sketch which is Ex.P.7. On 03.02.2007 he
received information from known source about an empty poison
tin used by the deceased which was lying in bushes near to the
house of Tumannapalli Prabhudasu. He went there and found an
empty tin containing a label Suvidha, a Bio fertilizer for weed
killing. He seized it under the cover of Ex.P.9 seizure mahazar.
On 06.02.2007 he arrested the accused at 2-00 p.m. near
Tadikonda cross roads and sent him to the remand. He visited
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Lachannagudipadu Village and secured Ghantasala Koteswara
Rao and Sudarshanam Nageswara Rao and examined them. On
20.02.2007 he sent a letter of advice to the FSL along with
visera preserved by the medical officer. After receipt of FSL
report and the final opinion of the Doctor, he filed charge sheet.
22) Sri Shaik Meeravalli, learned counsel, representing
Sri Md. Saleem, learned counsel appearing for the appellant,
would contend that P.W.1, P.W.9 to P.W.12 were the kith and
kin of the deceased. Their evidence was interested in nature.
P.W.2 did not support the case of the prosecution and she
turned hostile to the case of the prosecution. As the deceased
was not interested in attending agricultural operations and
having vexed with the life, in which she had to work as collie,
she took extreme step of commission of suicide for which the
accused cannot held liable. Though FIR speaks of alleged role of
in-laws, investigating officer deleted their names during
investigation. Ex.P.1 was with falsity. The learned Additional
Sessions Judge did not appreciate the evidence in proper
perspective. The prosecution did not prove the allegations of
demand for additional dowry. The deceased family was not
afforded to pay any amount to the accused. They had no
financial capacity to meet with any demand of dowry, as such,
their contention that they paid the amounts does not arise.
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There was no demand to purchase a she-buffalo and in fact the
she-buffalo was purchased with the amount of the accused. By
any stretch of imagination, the demand, if any, for purchasing a
she-buffalo, cannot be taken as a demand for additional dowry.
When there was no support to the evidence of interested
witnesses from independent source, the conviction of the
accused for the allegations under Sections 304-B and 498-A of
IPC is not at all sustainable. With the above submissions, he
would contend that the appeal is liable to be allowed.
23) Sri N. Sravan Kumar, learned counsel, representing
the learned Public Prosecutor, would contend that it is a case
where the death was occurred within seven years from the date
of marriage in the house of in-laws other than in normal
circumstances. There was presence of an injury on the neck
portion of the deceased. The evidence would prove that prior to
the death, the deceased was subjected to physical torture, as
such, she committed suicide. There was consistent evidence
with regard to the demand made by the accused for additional
dowry amounts which is by virtue of evidence of P.W.1, P.W.9 to
P.W.12. In support of his contention, the learned counsel,
representing the learned Public Prosecutor, would rely upon a
decision in State of Rajasthan vs. Jaggu Ram1
. The learned
1
(2008) 12 Supreme Court Cases 51
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Additional Sessions Judge rightly appreciated the evidence on
record, found the accused guilty of the charges, as such, there
are no grounds to interfere with the judgment of conviction.
With the above submissions, he would argue that the appeal is
liable to be dismissed.
24) The charges are under Sections 498-A and 304-B of
IPC.
Section 498-A of IPC runs as follows:
[498A. Husband or relative of husband of a woman subjecting
her to cruelty.—
Whoever, being the husband or the relative of the husband of a
woman, subjects such woman to cruelty shall be punished with
imprisonment for a term which may extend to three years and
shall also be liable to fine.
Explanation.—For the purpose of this section, “cruelty”
means.—
(a) any willful conduct which is of such a nature as is likely to
drive the woman to commit suicide or to cause grave injury or
danger to life, limb or health (whether mental or physical) of
the woman; or
(b) harassment of the woman where such harassment is with a
view to coercing her or any person related to her to meet any
unlawful demand for any property or valuable security or is on
account of failure by her or any person related to her to meet
such demand.]
Section 304-B of IPC runs as follows:
1[304B. Dowry death. - (1) 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
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any relative of her husband for, or in connection with, any
demand for dowry, such death shall be called "dowry
death", and such husband or relative shall be deemed to
have caused her death.
Explanation: For the purposes of this sub-section, "dowry"
shall have the same meaning as in section 2 of the Dowry
Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with
imprisonment for a term which shall not be less than seven
years but which may extend to imprisonment for life.]
25) Apart from the above, there is a presumption under
Section 113-B of the Indian Evidence Act, 1872 regarding dowry
death which runs as follows:
Section 113-B in The Indian Evidence Act, 1872
"113-B: Presumption as to dowry death- 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.
Explanation - For the purposes of this section 'dowry
death' shall have the same meaning as in Section
304B of the Indian Penal Code (45 of 1860)."
26) For better appreciation, it is pertinent to refer here
firstly, the substance of Ex.P.1 lodged by P.W.1. As seen from
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Ex.P.1, the allegations in substance were that the marriage of
the accused and deceased took place about five years ago.
Since three years, her son-in-law was harassing her daughter
for getting more dowry. Her daughter told the facts to her. As
they were not in a position to see the harassment physically and
mentally, for the first time, she gave a ceiling fan and cash of
Rs.5,000/- during the month of August. Three months ago, her
daughter came to the house and told to her that her husband
beaten her to get money. She sent back her daughter as she
had no money. One week or ten days later both wife and
husband came together and asked her to purchase a she-buffalo
and she gave it to them an amount of Rs.9,500/- and they
purchased a she-buffalo. Ten days before Christmas also
accused beat her daughter. Having coming to know about the
same, they took her daughter to their house. They sent her on
the first day of January. In one occasion, her daughter came to
their house. There was a big injury on the head of her daughter.
Her daughter number of times told about the harassment and
cruelty towards her made by her husband. Ultimately, on one
day before the report at 11-30 a.m., she came to know that her
daughter is in serious condition and they went to
Lachannagudipadu village and found her died. The husband and
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in-laws of deceased were not there by then. This is the sum and
substance of the report.
27) As seen from the evidence of P.W.1 as referred to
above, she supported the case of the prosecution undoubtedly.
Her evidence has support from the contents of Ex.P.1.
28) There is no dispute during cross examination of
P.W.1 that the death of the deceased was occurred within seven
years from the date of her marriage. This fact was not at all in
dispute. Place of death of the deceased was in the in-laws
house. The cause of death was due to consumption of insecticide
poison. Apart from this, there was evidence of inquest
panchayatdar-P.W.3 and P.W.5-the Mandal Executive Magistrate
that cause of death of the deceased was due to consumption of
poison and she committed suicide. There was evidence of P.W.1
to the effect that she found injury on the back side of the head
of the deceased. P.W.5, the Mandal Executive Magistrate,
deposed that they found some injuries on the head and left side
of the above ear of the dead body. There was also evidence of
P.W.6-medical officer, noting a cut injury present on left
temporial region of skull size 1 x 2 cms., with bone deep. The
accused did not dispute the presence of the injury, as spoken to
by P.W.6. What he elicited from P.W.6 is that consumption of
poison is only the reason for death. It is no doubt true that the
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injury which was found on left temporial region of skull size 1 x
2 cms., was not the reason for her death according to P.W.6,
but the presence of such injury was not at all in dispute. All
these go to show that the death of the deceased was otherwise
than in normal circumstances within a period of seven years
from the date of marriage. The prosecution quietly satisfied the
ingredients that were within seven years and that it was
otherwise than in normal circumstances.
29) Now, the Court has to look into as to whether the
prosecution proved the allegations of cruelty within the meaning
of Section 498-A of IPC and that the deceased died on account
of harassment made against her soon before her death.
30) The sum and substance of the case of the
prosecution is that the deceased committed suicide on account
of physical and mental harassment from the part of the accused
demanding her to bring additional amounts towards dowry.
Now, this Court has to look whether the evidence on record
would prove such allegations. P.W.1 spoke of the so-called
demands made by the accused literally in her evidence.
Similarly, P.W.9-the father of the deceased, spoke of the above
and there is also evidence of P.W.10 and P.W.12 to that effect.
Now, it is a matter of appreciation to decide as to whether the
evidence of kith and kin of the deceased in this regard is
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believable. To decide the same, it is pertinent to look into the
defence of the accused in the light of their cross examination.
31) Turning to the evidence of P.W.1 during cross
examination she deposed that accused was living separately in a
portion of his parents‟ house. The deceased was coming to their
house twice or thrice in a year for festivals. At one occasion,
the deceased came after the quarrel with the accused.
Deceased came to their house on two or three occasions prior to
her death due to disputes with the accused. She does not know
that the deceased was in the habit of watching TV in the house
of her mother-in-law. The deceased did not intimate to her that
she intends to purchase gold for her ornaments. The accused
was attending coolie works. She denied a suggestion that the
deceased was interested in luxurious life and she was not
attending agricultural works. She paid all the amounts to the
accused at her house. She was not informed by the deceased
that she insisted the accused for money to present a saree to
her elder sister. The deceased elder sister presented a saree to
her. The deceased did not present a saree to her elder sister.
She deposed in cross examination that as the accused was
beating the deceased on her head frequently the deceased got
head ache and she purchased glasses on examination. She
denied that the deceased was not attending agricultural works.
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The injury on the body of the deceased was found to be fresh,
but it is old one. She denied that the accused was looking after
the deceased and she (P.W.1) is insisting the accused to
purchase luxurious articles to the deceased. She denied that she
is deposing false.
32) Turning to the evidence of P.W.9, the father of the
deceased, in cross examination he reiterated that accused asked
for dowry and they gave it. He denied that they gave
presentations as per their wish and pleasure. The accused and
his parents resided under the same roof but they have separate
mess. He denied that he got purchased a she-buffalo to the
accused with the money of the accused. He denied that the
deceased does not attend coolie works and that she committed
suicide for the reasons best known to her and that he is
deposing false.
33) According to P.W.10, the accused and deceased
came together to purchase she-buffalo. He denied that shebuffalo was purchased by the money of the accused. He denied
that the accused never demanded for additional dowry and he is
deposing false.
34) According to P.W.12, he does not know the reason
for the death of deceased.
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35) It is to be noted that the very defence of the
accused is that as the deceased was not willing to do agricultural
works and she was interested to lead a luxurious life, she
committed suicide. As this Court already pointed out that P.W.2
to a certain extent supported the case of the prosecution, but
certain extent she did not support the case of the prosecution.
During cross examination by the learned defence counsel, P.W.2
categorically deposed that the deceased was attending
agricultural coolie works. P.W.1 gave money to the accused and
deceased for purchasing she-buffalo. The very defence of the
accused that the deceased averted to attend agricultural works
was falsified by virtue of the answers elicited during cross
examination of P.W.2. After the prosecution got declared P.W.2
as hostile, the learned defence counsel elicited some answers
from the mouth of P.W.2 which shatters and which falsifies the
defence of the accused. According to the contention of the
accused, the she-buffalo was purchased with the money of the
accused. It is rather improbable to assume that for purchase of
a she-buffalo accused need not come to the house of P.W.1
along with the deceased. The accused elicited from the mouth of
P.W.2 that P.W.1 gave money to the accused and deceased for
purchasing a she-buffalo. The entire evidence of the prosecution
proves that on demand of accused only, P.W.1 gave money to
2024:APHC:4
24
the accused and deceased to purchase a she-buffalo. The
accused has no definite stand. At one hand his contention is that
whatever they were given by P.W.1 were voluntarily. It is very
difficult to accept such a defence of the accused. In my
considered view, there were no abnormalities in the evidence of
P.W.1 and P.W.9. This Court has no reason to disbelieve the
evidence of P.W.1 that on demand made by the accused, she
used to pay some amounts to the accused including the amount
to purchase a she-buffalo.
36) Now, it is a matter of appreciation as to whether
such demands proved by the prosecution would fall under the
purview of dowry harassment. At this juncture, it is pertinent to
look into the decision of the Hon‟ble Supreme Court in The
State of Andhra Pradesh v. Raj Gopal Asawa and others2
.
It is a case where the learned Sessions Judge found favour with
the case of the prosecution and convicted A-1 to A-3. They filed
an Appeal before the High Court of Andhra Pradesh and the High
Court reversed the judgment of conviction on the findings that
to constitute dowry, demand should be made directly or
indirectly either at the time of marriage or before the marriage
or at any time after the marriage and that if there was no
agreement between the parties to give or take any property or
2 (2004) 4 SCC 470
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25
valuable security and after the marriage if further amounts are
demanded, such demand will not fall within the meaning of
dowry. While holding so, the High Court of A.P. reversed the
judgment of conviction. Then, the State of Andhra Pradesh went
for Appeal in Criminal Appeal No.384 of 1998 before the Hon‟ble
Apex Court. The Hon‟ble Apex Court dealt with the essential
ingredients Sections 304-B and 498-A IPC and further looked
into the term dowry as defined in Section 2 of the Dowry
Prohibition Act, 1961 and held that under Section 304-B IPC
demand of dowry itself is punishable and it neither conceives or
conceive of any agreement. If for convicting any offender,
agreement for dowry is to be proved, hardly any offenders
would come under the clutches of law.
37) The Hon‟ble Apex Court in Raj Gopal Asawa (2nd
supra) at Para Nos.6 and 7 dealt with the essential ingredients
of Sections 304-B and 498-A IPC and further the definition of
the word „dowry’ in Section 2 of the Dowry Prohibition Act and
dealt with the issue elaborately at Para Nos.8 to 11. It is
necessary to extract here the observations of the Hon‟ble Apex
Court, as above:
“8. Explanation to Section 304B 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
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26
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 Ors. v. State of Haryana
(1998 CriLJ 1 144) .
9. The offence alleged against the respondents is under
Section 304B IPC which makes "demand of dowry" itself
punishable. Demand neither conceives nor would conceive
of any agreement. If for convicting any offender,
agreement for dowry is to be proved, hardly any offenders
would come under the clutches of law. When Section 304B
refers to "demand of dowry", it refers to the demand of
property or valuable security as referred to in the
definition of "dowry" under the Act. The argument that
there is no demand of dowry, in the present case, has no
force. In cases of dowry deaths and suicides,
circumstantial evidence plays an important role and
inferences can be drawn on the basis of such evidence.
That could be either direct or indirect. It is significant that
Section 4 of the Act, was also amended by means of Act
63 of 1984, under which it is an offence to demand dowry
directly or indirectly from the parents or other relatives or
guardian of a bride. The word "agreement" referred to in
Section 2 has to be inferred on the facts and
circumstances of each case. The interpretation that the
respondents seek, that conviction can only be if there is
agreement for dowry, is misconceived. This would be
contrary to the mandate and object of the Act. "Dowry"
definition is to be interpreted with the other provisions of
the Act including Section 3, which refers to giving or
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27
taking dowry and Section 4 which deals with a penalty for
demanding dowry, under the Act and the IPC. This makes
it clear that even demand of dowry on other ingredients
being satisfied is punishable. It is not always necessary
that there be any agreement for dowry.
10. Section 113B of the Evidence Act is also relevant for
the case at hand. Both Section 304B IPC and Section
113B of the Evidence Act were inserted as noted earlier by
the Dowry Prohibition (Amendment) Act 43 of 1986 with a
view to combat the increasing menace of dowry deaths.
Section 113B reads as follows:-
"113-B: Presumption as to dowry death- 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.
Explanation - For the purposes of this section
'dowry death' shall have the same meaning as in
Section 304B of the Indian Penal Code (45 of
1860)."
The necessity for insertion of the two provisions has been
amply analysed by the Law Commission of India in its 21st
Report dated 10th August, 1988 on 'Dowry Deaths and
Law Reform'. Keeping in view the impediment in the preexisting law in securing evidence to prove dowry related
deaths, legislature thought it wise to insert a provision
relating to presumption of dowry death on proof of certain
essentials. It is in this background presumptive Section
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28
113B in the Evidence Act has been inserted. As per the
definition of 'dowry death' in Section 304B IPC and the
wording in the presumptive Section 113B of the Evidence
Act, one of the essential ingredients, amongst others, in
both the provisions is that the concerned woman must
have been "soon before her death" subjected to cruelty or
harassment "for or in connection with the demand of
dowry". Presumption under Section 113B is a presumption
of law. On proof of the essentials mentioned therein, it
becomes obligatory on the Court to raise a presumption
that the accused caused the dowry death. The
presumption shall be raised only on proof of the following
essentials:
(1) The question before the Court must be whether
the accused has committed the dowry death of a
woman. (This means that the presumption can be
raised only if the accused is being tried for the
offence under Section 304B IPC).
(2) The woman was subjected to cruelty or
harassment by her husband or his relatives.
(3) Such cruelty or harassment was for, or in
connection with any demand for dowry.
(4) Such cruelty or harassment was soon before
her death.
11. A conjoint reading of Section 113B of the Evidence Act
and Section 304B IPC shows that there must be material
to show that soon before her death the victim was
subjected to cruelty or harassment. Prosecution has to
rule out the possibility of a natural or accidental death so
as to bring it within the purview of the 'death occurring
2024:APHC:4
29
otherwise than in normal circumstances'. The expression
'soon before' is very relevant where Section 113B of the
Evidence Act and Section 304B IPC are pressed into
service. Prosecution is obliged to show that soon before
the occurrence there was cruelty or harassment and only
in that case presumption operates. Evidence in that regard
has to be led by prosecution. 'Soon before' is a relative
term and it would depend upon circumstances of each
case and no strait-jacket formula can be laid down as to
what would constitute a period of soon before the
occurrence. It would be hazardous to indicate any fixed
period, and that brings in the importance of a proximity
test both for the proof of an offence of dowry death as well
as for raising a presumption under Section 113B of the
Evidence Act. The expression 'soon before her death' used
in the substantive Section 304B IPC and Section 113B of
the Evidence Act is present with the idea of proximity test.
No definite period has been indicated and the expression
'soon before' is not defined. A reference to expression
'soon before' used in Section 114. Illustration (a) of the
Evidence At is relevant. It lays down that a Court may
presume that a man who is in the possession of goods
'soon after the theft, is either the thief has received the
goods knowing them to be stolen, unless he can account
for his possession. The determination of the period which
can come within the term '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 livelink between the effect of cruelty based on dowry demand
2024:APHC:4
30
and the concerned death. If 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 of no consequence”.
38) In the light of the above decision of the Hon‟ble
Supreme Court, there need not be any agreement at the time of
marriage with regard to the dowry. As this Court already pointed
out that the death of the deceased was otherwise than in normal
circumstances and was within a period of seven years from the
date of marriage.
39) As this Court already pointed out the prosecution by
virtue of the evidence let in proved to the fact that on demand
made by the accused, P.W.1 used to pay some amounts and
further she paid an amount of Rs.9,500/- or Rs.10,000/- to the
accused so as to purchase a she-buffalo. Apart from this, the
cause set up by the accused that the deceased committed
suicide as she averted to attend the agricultural coolie works
was falsified by virtue of the evidence of P.W.2.
40) Now, it is a matter of appreciation to decide as to
whether the evidence let in by the prosecution would meet the
proximity test to the effect that alleged death of the deceased
was in consequences to the harassment.
41) As seen from the decision of the Hon‟ble Supreme
Court in Jaggu Ram’s case (1 supra), the Hon‟ble Supreme Court
2024:APHC:4
31
held that the expression soon before her death as mentioned in
Section 304-B of IPC and Section 113-B of Indian Evidence Act
is to be decided by the Court after analysing facts and
circumstances leading to the death of victim whether there is
any proximate connection between the demand of dowry, the
act of cruelty or harassment or death.
42) Admittedly, in view of the language employed in
Section 304-B IPC as well as Section 113-B of the Evidence Act,
relating to the presumption under dowry deaths, prosecution is
bound to establish that such demands are made soon before her
death. What is „soon before the death‟ is a question to be
considered by this Court. The Hon‟ble Apex Court in Raj Gopal
Asawa’s case (2nd supra), had an occasion to deal with how
„soon before death‟ is to be ascertained in view of the provisions
of Section 304-B IPC and Section 113-B of the Evidence Act. It
is apposite to extract here the observations of the Hon‟ble Apex
Court at Para No.11, which are as follows:
“11. A conjoint reading of Section 113-B of the Evidence
Act and Section 304-B IPC shows that there must be
material to show that soon before her death the victim
was subjected to cruelty or harassment. Prosecution has
to rule out the possibility of a natural or accidental death
so as to bring it within the purview of the 'death occurring
otherwise than in normal circumstances'. The expression
'soon before' is very relevant where Section 113-B of the
Evidence Act and Section 304-B IPC are pressed into
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32
service. Prosecution is obliged to show that soon before
the occurrence there was cruelty or harassment and only
in that case presumption operates. Evidence in that
regard has to be led by prosecution. 'Soon before' is a
relative term and it would depend upon circumstances of
each case and no strait-jacket formula can be laid down
as to what would constitute a period of soon before the
occurrence. It would be hazardous to indicate any fixed
period, and that brings in the importance of a proximity
test both for the proof of an offence of dowry death as
well as for raising a presumption under Section 113-B of
the Evidence Act. The expression 'soon before her death'
used in the substantive Section 304-B IPC and Section
113-B of the Evidence Act is present with the idea of
proximity test. No definite period has been indicated and
the expression 'soon before' is not defined. A reference to
expression 'soon before' used in Section 114. Illustration
(a) of the Evidence At is relevant. It lays down that a
Court may presume that a man who is in the possession
of goods 'soon after the theft, is either the thief has
received the goods knowing them to be stolen, unless he
can account for his possession. The determination of the
period which can come within the term '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 alleged incident of
cruelty is remote in time and has become stale enough
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33
not to disturb mental equilibrium of the woman
concerned, it would be of no consequence”.
43) So, by virtue of the above, it is very clear that „soon
before‟ is a relative term and it would depend upon the
circumstances of each case and no straightjacket formula can be
laid down as to what would constitute a period of soon before
the occurrence. No definite period has been indicated. Soon
before death is not defined. The Court has to decide as to what
is soon before death, basing on the proximity test.
44) Now, coming to the case on hand the allegations
were such that after the deceased and accused were blessed
with two children, accused used to demand for additional
amounts. The evidence of P.W.1 means that the so-called
harassment meted out by the deceased in the hands of the
accused was continuing one. It is to be noted that the evidence
of P.W.1 means that accused used to beat the deceased and
ultimately he beaten the deceased and made her to consume
pesticide resulting her death. Her evidence means that she
found injury on the back side of the head of the deceased. As
this Court already pointed out the medical officer who conducted
autopsy testified about the presence of the injury. P.W.5, the
Mandal Executive Magistrate also testified the same. It was not
healed injury according to the evidence available on record.
2024:APHC:4
34
Before the medical officer who conducted autopsy over the dead
body of the deceased, accused did not challenge his testimony
disputing the presence of the injury. So, the very existence of a
cut injury present on left temporial region of skull size 1 x 2
cms., seize with bone deep was prior to the death of the
deceased. Though the causing of such an injury and
consumption of pesticide was not at one but the same time, the
injury on the dead body of the deceased must have been caused
just on the date of death of the deceased or prior to the date.
The prosecution let in cogent evidence that the deceased and
accused were alone residing together in a separate portion,
though the in-laws were there in the same roof. It is not the
case of the accused that he was not present when the deceased
committed suicide. There was specific evidence of P.W.1 that
when she found the dead body of the deceased by going to her
house on hearing the news neither accused nor any other of the
inmates were found. So, it is a case where the accused
absconding after the episode. Some facts which are within the
exclusive knowledge of the accused have to be explained by the
accused.
45) In Jaggu Ram’s case (1 supra), the facts were also
that there was presence of injuries on the head of the deceased.
It was also a case of dowry death. The accused concocted a
2024:APHC:4
35
story that deceased was suffering from epilepsy and suffered
head injuries after colluding against door bar during her bout of
fits. The Hon‟ble Supreme Court made adverse comments
against the defence of the accused. The Hon‟ble Supreme Court
held that in view of Section 100 of Cr.P.C. and 106 of the Indian
Evidence Act, burden of proving the facts specially within
knowledge of the accused would lies on him only.
46) Coming to the present case on hand, it was within
the exclusive knowledge of the accused as to how the deceased
received injuries on the back side of the head. There was no
dispute about the cause of death. There was no dispute about
the place of death. The accused and deceased were residing
together in a room in a separate portion. So, the accused had no
probable say whatsoever explaining the circumstances in which
the deceased received injuries. In the absence thereof, the case
of the prosecution was further strengthened to the effect that
the deceased was subjected to physical harassment in
connection with demand for additional amounts. Therefore, the
evidence on record amply proves the fact that soon before her
death, the deceased was subjected to physical and mental
harassment.
47) The embodied statutory presumption under Section
304-B of IPC means that if death of a woman was occurred
2024:APHC:4
36
within seven years in otherwise than under normal
circumstance, it shall be called as a dowry death. The statutory
presumption under Section 113 of the Indian Evidence Act
means that if the prosecution proves that the death was
otherwise than in normal circumstances within seven years from
the date of marriage and that it shown that before her death,
she has been subjected by such person to cruelty or harassment
in connection with a demand for dowry, the Court shall presume
that such person has caused the dowry death. In my considered
view, the accused miserably failed to prove contrary. The
evidence on record would meet the proximity test i.e., the death
of the deceased was in consequences of the harassment meted
out to her.
48) During cross examination P.W.8-the SDPO deposed
that immediate cause preceding the deceased consuming
pesticide poison was petty quarrel, where the deceased intended
to present clothes to her sister. He volunteers that it was
preceded by series of incidents demanding money and other
articles. So, the above answer elicited from the mouth of P.W.8
during cross examination is not going to help the accused in any
way to contend that the deceased committed suicide on account
of petty quarrels.
2024:APHC:4
37
49) Having regard to the above, this Court is of the
considered view that the prosecution cogently established the
essential ingredients of 498-A as well as Section 304-B of IPC.
In my considered view, the learned Additional Sessions Judge
rightly appreciated the evidence on record and rightly found the
accused guilty of the charge under Sections 304-B as well as
Section 498-A of IPC. Under the circumstances, this Court did
not see any grounds to interfere with the conviction and
sentence imposed against the accused.
50) In the result, the Criminal Appeal is dismissed, as
such, the judgment, dated 12.10.2009 in Sessions Case No.628
of 2008, on the file of I Additional District & Sessions Judge,
Guntur, shall stand confirmed.
51) The Registry is directed to take steps immediately
under Section 388 Cr.P.C. to certify the judgment of this Court
to the trial Court on or before 09.01.2024 and on such
certification, the trial Court shall take necessary steps to carry
out the sentence imposed against the appellant and to report
compliance to this Court.
52) The Registry is directed to forward the copy of the
judgment along with original records to the trial Court on or
before 09.01.2024.
2024:APHC:4
38
Consequently, miscellaneous applications pending, if any,
shall stand closed.
________________________
JUSTICE A.V. RAVINDRA BABU
Dt. 02.01.2024.
PGR
2024:APHC:4
39
THE HON’BLE SRI JUSTICE A.V. RAVINDRA BABU
CRL. APPEAL NO.1225 OF 2009
Note:
The Registry is directed to forward
the copy of the judgment along with
original records to the trial Court on
or before 09.01.2024.
Date: 02.01.2024
PGR
2024:APHC:4
