THE HONOURABLE SRI JUSTICE K.S.APPARAO
CRIMINAL APPEAL NO:1342 OF 2005
23-07-2012
DONTHARABOINA SADANANDAM & OTHERS
STATE REP BY THE SUB DIVISIONAL POLICE OFFICER & ANOTHER
Counsel for the Petitioners: Sri T.K. Sridhar
Counsel for the Respondents: PUBLIC PROSECUTOR.
<GIST:
> HEAD NOTE:
? Cases referred
1) (2006) 9 SCC 467.
ORDER:
Aggrieved by the judgment, dated 12.8.2005 passed by the learned 1st Additional
Sessions Judge, Karimnagar in S.C.No:308 of 2005 convicting the appellants and
sentenced them to undergo R.I. for (7) years each and to pay a fine of
Rs.1,000/- each in default to suffer S.I. for two (2) months for the offence
under section 304-B IPC and further convicted and sentenced to undergo R.I. for
a period of two (2) years each and to pay a fine of Rs.500/- in default to
suffer S.I. for 1 (1) month for the offence under section 498-A I.P.C and
further convicted and sentenced to undergo R.I. for two (2) years each and
sentenced to pay a fine of Rs.1,000/- each in default to suffer S.I. for two (2)
months for the offence under section 4 of Dowry Prohibition Act and further
convicted and sentenced to undergo R.I. for five (5) years and to pay a fine of
Rs.5,000/- each in default to suffer S.I. for one (1) month for the offence
under section 306 I.P.C., the present appeal is filed by the appellants.
The appellants are accused-1 to 3 and the respondents are the State represented
by the Public Prosecutor.
The case of the prosecution in short is that on 30.4.2004, P.w.1 gave a report
to the police stating that he performed the marriage of his daughter (for short
deceased) with A1 who is no other than the son of his elder sister. He gave a
dowry of Rs.50,000/- and the coupled led happy marital life for one year. The
marriage of the younger brother of A1 was performed and they are blessed with a
son and since then, the husband and the in laws of the deceased started
harassing her. They also demanded her to bring additional dowry of Rs.20,000/-
and sent a word to her parents about three months back. P.w.1 could not pay
the amount due to the financial problem. Due to the said harassment made by
the husband and in laws of the deceased, she stayed in the house of P.w.1 for
one month. 18 days prior to the incident, a festival was celebrated at the
house of P.w.1 and the husband and in laws of the deceased attended the said
festival. On the next day, they picked up a quarrel demanding additional
dowry of Rs.20,000/- and they also beat her in that regard. The relatives of
P.w.1 consoled them and asked them to have consultation with a Doctor. 3 days
prior to her death, the deceased made a phone call to P.w.1 and informed him
that her husband and in laws were harassing her for dowry. On that, when
P.w.1 sent his son to the house of the deceased, he went there and returned to
the house informing that the in-laws of the deceased drove him away while
instructing him to send his father with dowry. On 29.4.2004, P.w.1 received
informed that the deceased handed herself and died in front of their house.
They saw contusion on the neck of his daughter. Basing on the report of
P.w.1, a case in Cr.No:43 of 2004 for the offence under section 304-B IPC was
registered and after completion of the investigation, charge sheet was filed.
Before the trial Court, as many as 15 witnesses were examined as P.ws.1 to 15
and Exs.P1 to P8 were marked. No oral evidence was adduced on behalf of the
accused. But, Ex.D1 to D5 contradictions were marked on their behalf. The
trial Court after evaluating the evidence on record and after finding the
accused guilty, convicted them as stated supra. Having aggrieved by the
same, the present appeal is filed by the accused-appellants.
The learned counsel appearing for the appellants mainly argued that the trial
Court erred in convicting the appellants for both the offences under sections
306 and 304-B IPC in the absence of any evidence to show that there was abetment
to commit suicide and therefore, the conviction for the offence under section
306 IPC is unsustainable. The trial Court has also failed to take into
consideration the contradictions in the evidence of P.ws.1 to 3 on the crucial
aspects of time and the date of incidents and the alleged demand for additional
dowry. The trial Court has failed to consider the contradictions in the
evidence of P.w.5 on one hand and the evidence of P.ws.1 to 3 on the other, with
regard to the galata for additional dowry and that therefore, framing of charge
under the provisions of Dowry Prohibition Act, is without any basis of material
evidence. Hence, the accused are liable to be acquitted for the charges
leveled against them.
The learned Public Prosecutor appearing for the State while supporting the
judgment impugned, sought for dismissal of the appeal.
The point for consideration is whether the prosecution proved the guilty of the
accused for the charges leveled against them and whether the judgment of the
trial Court is sustainable.
Before going into the merits of the case, it is relevant to go through the
charges framed against the accused, which read in the same verbatim as under:
"Firstly, that you A1 to A3 being the husband and parents in law of the
deceased-Dontharaboina Sujatha aged 24 years subjected her to cruelty and
harassment with a demand to bring a motor cycle or an amount of Rs.20,000/- as
additional dowry after the birth of a child aged about 5 months and thereby
committed an offence punishable under section 498-A IPC and within my
cognizance.
Secondly, that you all on the 29th day of April, 2004 at about 1500 hours at her
in law's house at Mulkanoor village caused the death of the aforesaid
Dontharaboina Sujatha within 7 years of her marriage by subjecting her to
cruelty or harassing her soon before her death in connection with a demand to
bring additional dowry and that you thereby committed an offence punishable
under section 304-B IPC and within my cognizance.
Thirdly, that you all on the same day, time and place as mentioned in charge
No:2 and during the course of same transaction, Dontharaboina Sujatha committed
suicide by hanging and that you thereby committed an offence punishable under
section 306 IPC and within my cognizance.
Fourthly, that since three months prior to 30.4.2004 you all demanded motor
cycle or Rs.20,000/- as additional dowry from the parents of the deceased
Dontharaboina Sujatha and thereby committed an offence punishable under section
4 of Dowry Prohibition Act and within my cognizance."
After the answer to the plea of the charges denying the same, the signature of
A1 and two mere thumb impressions were found. Likewise, on the depositions of
P.ws.1 to 9, mere thumb impressions appear to have been taken. Except the
bald thumb impressions, they do not indicate the name of the person who put the
thumb impression. In the absence of mentioning name against the respective
thumb impressions, it is much difficult to conclude whether such thumb
impression belongs to a particular person who contributed the said thumb
impression.
This sort of attitude in obtaining mere thumb impressions on the charges as well
as the depositions, amounts to infer the callousness and negligence on the part
of the Presiding Officer who conducted the trial.
Apart from that, the very framing of the charges against the accused is
ambiguous and vague for the following reasons:
As per the allegations in the chargesheet, the trouble started between the
deceased and the accused when the accused demanded for Rs.20,000/- towards
additional dowry and that when the brother of A1 was blessed with a son, all the
accused starting harassing the deceased on the ground that she did not beget
children.
As a matter of fact, there is no whisper as to the demand of motor cycle and
also as to the birth of a child, aged about 5 months to the deceased in the
chargesheet. It is not known as to how the 1st charge was framed basing on
such allegations, which are not found in the charge sheet.
Now coming to charge No:3 pertaining to abetment to commit suicide punishable
under section 306 IPC., except baldly framing the said charge, there is no such
whisper as to the abetment by the accused to the deceased to commit suicide.
In so far as charge No:4 is concerned, the same is with regard to demand of
motor cycle or Rs.20,000/- by the accused since three months prior to 30.3.2004.
As already stated, there is no such whisper as to the demand of a motor cycle in
the charge sheet.
When inherently, the above charges that were framed against the accused, are
beyond the allegations in the charge sheet, the conviction recorded for the said
charges, in my view, is nothing but amounting to non application of mind by the
trial Court and apart from that, it also amounts to convict the accused on the
baseless charges.
There is no other go except to observe that the learned Presiding Officer had
functioned as a silent spectator although from the stage of framing the charges
till the recording of the depositions, without taking any proper care and
caution. As such, the conduct on the part of the Presiding Officer who
examined the accused before framing the charges and who obtained the thumb
impressions on the charges and the depositions without indicating the names of
the relevant person against the said thumb impressions, is very much
questionable and the same is self explanatory.
All my above observations are regrettable, but in the circumstances, inevitable.
Now coming to the merits of the case, it has to be examined whether the
prosecution proved the guilty of the accused for the charges leveled against
them.
Out of the prosecution witnesses, the deceased is the daughter of P.ws.1 and 2
and sister of P.w.3. P.w.4 is a child witness who is the sister of A1.
P.w.5, Sarpanch of the village, is the neighbour of P.w.1. P.w.6 is kthe
R.M.P Doctor. P.w.7 is the Photographer. P.w.8 is the inquestdar. The
deceased is a grand daughter of P.w.9 by curtesy and P.w.10 is the neighbour of
P.w.1. P.w.11 is the S.I. of Police. P.w.12 is one of lthe inquestdars.
P.w.13 is the Civil Assistant Surgeon and P.w.14 is the Mandal Revenue Officer.
P.w.15 is the Sub Divisional Police Officer who took up further investigation.
At this stage, in support of contention that the conduct of the family members
of the deceased is relevant for considering the charges leveled against the
accused and there was no such conclusion as to the death of the deceased at the
time of conducting the inquest and that mere lodging a report against accused
does lead to a conclusion that the accused committed the offence, the learned
counsel for the accused relied on a judgment of the Apex Court reported in
T.ARUNPERUNJOTHI VS. STATE THROUGH S.H.O. PONDICHERRY (1)
Now, in the light of the principles laid by the Apex Court, let us examine the
veracity of the testimonies of the prosecution witnesses.
According to P.w.1, the deceased is his daughter and she was married to A1 about
2 years back and they gave Rs.50,000/- towards dowry. They lived happily for
2 years and thereafter, the accused started harassing the deceased for
additional dowry. Having come to know about the death of his daughter, he
went to her in laws' house and found the dead body of the deceased and on
suspicion against all the accused, he lodged Ex.P1 report to the police.
During the course of cross examination, P.w.1 admitted that the marriage between
A1 and the deceased was proposed long back i.e., from their childhood and the
marriage was as such performed. He denied the suggestion that he stated to
the police that the accused and the deceased lived happily for one year as in
Ex.D2. He volunteered that the demand of dowry was firstly made one month
prior to the death of the deceased and he did not inform to any of the caste
elders or to the police about the demand of the dowry by the accused and no
panchayats were convened. He further volunteered that he only informed to the
police for the first time as to the harassment for dowry, after the death of the
deceased. He denied the suggestion that he did not state before the
police that the accused visited his house for the festival 15 days after the
demand of dowry and he expressed his inability to give the additional dowry on
the ground that his financial condition was not good.
A perusal of the evidence of P.w.1 makes it crystal clear that A1 is no other
than the son of the sister of P.w.1 and the marriage of A1 and his daughter was
settled even in the childhood itself and the accused started harassing the
deceased for additional dowry from two months prior to the death of the deceased
and that the alleged demand of additional dowry was not reported to anybody by
P.w.1. Therefore, it can be said that by the date of giving Ex.P1, there was
no such complaint by P.w.1 against any of the accused for the alleged demand of
additional dowry of Rs.20,000/-.
Now, coming to the evidence of P.w.2 who is the mother deceased, she stated that
the marriage of the deceased with A1 was performed two years back and an amount
of Rs.40,000/- was given prior to the marriage towards the dowry and an amount
of Rs.20,000/- was given at the time of marriage and they lived happily for
about 4 months. From then, A1 was harassing the deceased for bringing the
amount so as to prosecute his studies. About 8 months after the marriage,
they celebrated a festival. But, A2 and A3 did not attend the festival. A1
refused to eat non-vegetarian food and he insisted for preparing vegetarian
dishes and that he did not have his dinner and quarreled with the deceased.
After making a big issue, he went to his house. After one month, A2 and A3
came to their house and the deceased was at their house by that time and both of
them abused her in filthy language. They sent the deceased along with them.
After 7 days, he received a phone call from the deceased to send her brother to
her house. On that, she sent L.w.3 to her house and that L.w.3 returned and
informed that herself and P.w.1 should go to the house of the deceased.
Subsequently, they came to know about the death of the deceased.
During her cross examination, she admitted that she did not state the details as
stated by her in the chief examination, to the police. It is also admitted
that after they reached the house of the deceased, she along with the accused
took her to the hospital.
A scrutiny of the evidence of P.w.2, the same is entirely different to that of
P.w.1, her husband on all material aspects. Nowhere, she stated that the
accused demand additional dowry of Rs.20,000/-. But, she gave a different
version with regard to the alleged dowry. She had also given a different
version to the effect that A1 was harassing the deceased for bringing the amount
so as to prosecute his studies. According to P.w.1, he signed Ex.P1 along
with P.w.2 whereas P.w.2 did not state that she signed Ex.P1 on the next day of
the alleged incident.
P.w.3 is the brother of the deceased and the son of P.ws.1 and 2. According to
him, the deceased was married to A1 about 2 years back and Rs.50,000/- was given
as dowry at the time of marriage and they lived happily for about one year.
After the birth of son to the wife of the brother of A1, disputes arose between
A1 and the deceased on the ground that the deceased did not beget children and
also on the ground of additional dowry. He further added that the deceased
came to their house after the disputes with A1 and stayed for one month and that
in connection with the festival celebrating in their house, they invited all the
accused and all the accused came to their house. The daughter of A2 and A3
also came to their house and later they left their house and subsequently, A1
and the deceased left their house. Prior to that, there was a small galata in
their house. After 15 days, he received a phone call from the deceased
informing that there were disputes. Thereafter, they came to know about the
death of the deceased.
During the cross examination, he stated that he along with P.w.2, personally
handed over Rs.50,000/- to the accused. It is strange to note that neither
P.w.1 nor P.w.2 stated that the said dowry amount of Rs.50,000/- was paid
through P.w.3. The evidence of P.w.3 on that count, is nothing but an
improvement. During the cross examination, he volunteered that A1 to A3
and L.w.4 stayed for one day during their visit and the festival was celebrated
by all of them together and that the deceased was happy while leaving their
house.
Thus, P.ws.1 to 3 did not state that the deceased was unhappy at the time of
leaving their house after celebrating the festival in their house. The
evidence of P.ws.1 to 3 is inconsistent with regard to the quantum of dowry and
also with regard to the mode of payment to the accused. Thus, the evidence of
P.ws.1 to 3 suffers from contradictions, improvements and inconsistencies, which
were falsified by the evidence of the Investigating Officer, P.w.15 as per
Exs.D1 to D3. Exs.D1 to D3 are the material contradictions and if the same are
taking into consideration, they create a doubt crept in the mind of the Court as
to the veracity of the testimonies of P.ws.1 to 3.
The judgment relied on by the learned counsel for the accused, as stated supra
lends support to the defence taken by the accused that the conduct of the family
members of the deceased suffers from suspicious circumstances.
Coming to the evidence of P.w.4, a child witness who is the sister of A1, she
stated that the deceased died by hanging herself on the ground that she disliked
A1.On the date of incident, all the accused and herself went to attend their
work and after returning, they found deceased died and they forcibly opened the
doors of the room and A2 cut the rope with which the deceased hanged herself.
She was not cross examined in this regard. If the evidence of this child
witness is taken into consideration, it can easily be said that at the time of
the alleged suicide, A1 to A3 including the child witness were not present in
the house.
At this juncture, the case of the Investigating Officer as narrated in the
remand, plays a vital role. According to the investigation, on 29.4.2004 at
about 3 P.M. while A1 to A3 were in the fields, the deceased who disgusted with
the harassment made to her, sent P.w.4 to have a chacklet and hanged with the
rope already tied to the hook of the fan. P.w.4 who found the door bolted from
inside, noticed the dead body of the deceased through the window and rushed to
the accused and informed them and they came and broke opened the doors and A2
cut the plastic rope and relieved the deceased.
Even if the investigation done by P.w.15, is taken into consideration, there is
no tangible evidence suspecting the involvement of the accused in this crime for
the reason that at the time of the suicide, A1 to A3 went to attend their work
in the fields and P.w.4, the child witness was sent for buying a chacklet by the
deceased and by the time, A1 to A3 came to the house on intimation by P.w.4
about the hanging of the deceased, the doors were found locked from inside and
therefore, they were broke opened by the accused and A2 cut the rope and laid
the deceased on the ground. From these circumstances, it can be inferred that
the conduct of the accused in breaking opened the doors and cutting the rope and
laying the deceased on the ground and sending for a Doctor, shows their anxiety
to survive the deceased and the said attitude and the conduct of the accused,
appears to be a bonafide one in the ordinary course of life of a person.
The case of the prosecution rests on the following: The alleged harassment
according to the prosecution version is that trouble started on the ground that
the deceased did not beget children and she did not bring additional demand of
dowry of Rs.20,000/-. In this regard, the framing of the charge, which is
framed on the allegations that are not found in the chargesheet, is very vague.
With regard to the demand for additional dowry of Rs.20,000/-, the evidence of
the witnesses is not consistent as to the quantum of dowry, the mode of payment
and as to the demand for additional dowry. Admittedly, the factum of demand
of additional dowry has not been reported to any of the elders. On a perusal
of the evidence, the fact that remains undisputed is that P.w.1 is no other than
the brother of the mother of the deceased and the deceased is his niece and the
marriage between A1 and the deceased was fixed even from their childhood. In
this background of the matter, it gives rise to a doubt in the mind of the Court
as to the veracity of the testimonies of the prosecution witnesses as to the
dowry and the demand for additional dowry and the alleged harassment.
P.w.5 who is the sarpanch of the village is a neighbour to P.ws.1 and 2. He
deposed that he was not informed about any disputes and about 20 days prior to
the death of the deceased, there was a galata near the house of P.w.1 and when
he enquired, P.w.1 informed him that the accused demanded Rs.20,000/- as
additional dowry.
According to him, he did not know any disputes. If there were really
disputes in the family of his daughter, the silence on the part of P.w.1 without
intimating the same to P.w.5, being neighbour who is a sarpanch and elder of the
village, appears to be quite unnatural and apart from that, the silence on the
part of P.w.1 leads to draw an adverse inference against the case of the
prosecution. However, the evidence of P.w.5 is falsified due to the
contradiction marked as Ex.D5.
P.w.6 is a R.M.P. Doctor by profession. He deposed that about a year back, A2
came to him and informed that the deceased hanged herself and that she was
struggling for life and thereby, requested him to examine her. Therefore, he
went to his house and on examination, advised them to take her to Dr.Sudhakar
who is a M.B.B.S Doctor.
P.w.8, one of the inquestdars deposed that the issue of dowry death did not
arise at the time of inquest and the said fact was not stated by any of the
witnesses examined at the time of inquest. He postulated that the contents of
panchanama were not read over to him.
It is to be noted that in spite of the above deposition, this witness has not
lbeen declared as hostile and thereby, his evidence remains unrebutted. If
this piece of evidence is taken into consideration, no motive has been gathered
at the time of even conducting panchanama on the death of the deceased i.e.,
with regard to the alleged harassment or the additional dowry.
P.w.9 is the grand mother of the deceased by curtesy. She gave a different
version that one year back, A1 to A3 came to the house of P.w.1 and there was a
quarrel in their house and in that quarrel, A3 got enraged and took a broom
stick and a chappal and scolded P.ws.1 to 3. But, at this stage, it is strange
to note that none of the prosecution witnesses have stated these facts either in
their chief examination or in the cross examination or in their 161 Cr.P.C
statements.
However, this witness turned hostile and did not support the case of the
prosecution.
P.w.10 who is a neighbour of P.w.1 stated that on behalf of P.w.1, he paid
Rs.40,000/- which was raised through a sale of the land by P.w.1, to A-2 and A3.
But, it is neither the case of the prosecution witnesses nor the case of the
prosecution and apart from that, the evidence of this witness, falsifies the
evidence of P.w.3 who stated in his cross examination that he personally handed
over Rs.50,000/- to the accused. P.w.3 also stated that he was not aware of
the alleged harassment and he was not present at the time of conversation
between the deceased and the accused.
P.w.11, the S.I. of Police stated that he registered Ex.P.6 F.I.R and arrested
the accused. He stated that P.w.1 gave Ex.P1 report and the said report was
already drafted. According to P.w.1, Ex.P1 was written in the police station
and himself and P.w.2 signed in the document.
A perusal of Ex.P1, it does not contain the signature of P.w.2 except P.w.1.
Thus, there are inconsistencies as to the presentation of Ex.P1 and it goes a
long way to infer against the case of the prosecution.
P.w.12, one of the inquestdars stated that he was present at the time of inquest
conducted over the dead body of the deceased on 30.4.2004 at the house of the
accused. In his cross examination, he stated that the details of the
examination of the witnesses and regarding the relations between the deceased
and A1 were not mentioned in Ex.P6 and he affixed signatures on 3 pages of the
inquest report and he did not know the contentions of Ex.P6. For the reasons
best known, the prosecution did not make any efforts to get the witness turned
hostile.
P.w.14 is the Mandal Revenue Officer. According to him, he prepared Ex.P3
inquest report on the requisition given by the S.I. of Police. In the cross
examination, he admitted that he did not remember the scribe and he did not
obtain the signatures of the scribe on Ex.P3.
In view of the failure to obtain the signatures of the scribe on Ex.P3 and apart
from that, in view of the failure to examine the scribe, the same is fatal to
the case of the prosecution.
P.w.15 is the Sub Divisional Police Officer who took up the investigation in
this case. During his cross examination, he stated that the statements of the
witnesses were scribed by P.C.1467. But, he was not cited as a witness.
If the contradictions under Exs.D1 to D5 are taken into consideration, the
evidence of P.ws.1 to 5 has no legs to stand in support of the case of the
prosecution.
But, the trial Court without appreciating all these aspects and the evidence on
record in a proper perspective, simply carried away with the arguments of the
learned Public Prosecutor and convicted the accused without any positive,
cogent, convincing and trustworthy evidence. In any view of the matter, in my
considered opinion, the prosecution has miserably failed to prove the charges,
which are very vague and ambiguous, against the accused and consequently, the
accused are found not guilty for the charges leveled against them and they are
entitled to be acquitted and hence they are acquitted.
Accordingly, the appeal is allowed setting aside the conviction and sentenced
imposed by the trial Court in S.C.No:308 of 2005, dated 12.8.2005.
The bail bonds of the accused, if any shall stand cancelled and the fine amount
paid, if any shall be refunded to the accused after the expiry of the staturoy
period.
__________________
Justice K.S.Apparao
Date:24.07.2012
