IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE 20th DAY OF APRIL, TWO THOUSAND AND ELEVEN PRESENT HON'BLE SRI JUSTICE A.GOPAL REDDY AND HON'BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1178 OF 2007 Between: Challa Raghunatha … Appellant And State of Andhra Pradesh, represented by its Public Prosecutor, High Court of A.P., Hyderabad. … Respondent This court made the following: - HON'BLE SRI JUSTICE A.GOPAL REDDY AND HON'BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1178 OF 2007 JUDGMENT: (per the Hon’ble Sri Justice A.Gopal Redddy) The appellant/A1, who faced the trial along with his father-in- law-A2, brother-in-law-A3 and mother-in-law-A4 in Sessions Case No.232 of 2006 vide judgment, dated 21.08.2007, on the file of VII Additional District & Sessions Judge, Madanapalli, Chittoor District, was convicted for the offence punishable under Section 304-B IPC and was sentenced to suffer rigorous imprisonment for life and also to pay a fine of Rs.200/- in default to suffer imprisonment for two months; he was further sentenced to suffer imprisonment for two years for the offence punishable under Section 498A IPC and also to pay a fine of Rs.500/- in default to suffer simple imprisonment for two months; and he was further sentenced to suffer rigorous imprisonment for two years for the offence punishable under Section 306 IPC and also to pay a fine of Rs.500/- in default to suffer simple imprisonment for two months, whereas A2 to A4 were acquitted of all the charges. 2. The substance of the charge against the accused is that the accused subjected one Anuradha, wife of A1, to cruelty and harassed her for additional dowry and then on 22.04.2005 caused her death by making her to consume organophosphate an insecticide poison. 3. The prosecution story as unfolded during the course of trial is briefly stated as under:- The marriage of one Anuradha (hereinafter referred to as “the deceased”), was performed with A1 in the year 2004 and at the time of marriage Rs.10,000/- cash and gold jewels worth about Rs.50,000/- were given. After the marriage they lead a happy marital life for about three months. Subsequently, the accused started harassing her on the allegation that she does not know any work and further sent her back to her parents demanding an additional dowry of Rs.20,000/-. Then a panchayat was held in the presence of P.Ws.3 and others, wherein the panchayat elders admonished the accused and advised them to live amicably and further expressed their inability to meet their demands. Then two months thereafter they were informed about the death of the deceased. On 22.04.2005 at about 07:00 PM on receiving the death intimation-Ex.P18 from the Government Hospital, Voyalpadu, P.W.15 the Sub-Inspector of Police entered the same in the general diary and visited the hospital. At the Government hospital as he could not find any relative of the deceased he posted a guard and returned back to the police station. Then on the next day i.e., on 23.04.2005 at about 09:45 AM on receiving a report Ex.P1 from P.W.1, he registered the same as a case in crime No.51 of 2005 and issued F.I.R. under Ex.P19. Further investigation was taken over by P.W.17 the then SDPO, Madanapalle, who visited the hospital and sent a requisition to the Mandal Revenue Officer P.W.11 to conduct the inquest. Accordingly, P.W.11 held inquest over the dead body of the deceased in the presence of P.Ws.12 and 13 under Ex.P14. Thereafter, P.W.17 visited the scene of offence and prepared an observation report and rough sketch of the scene in the presence of P.W.13 under Exs.P17 & P23 respectively. During the course of investigation, he examined and recorded the statement of P.Ws.4 to 10 under Exs.P5 to P13 and seized the material objects from P.W.10 under Ex.P24. On 23.04.2005, on requisition P.W.16 the Civil Assistant Surgeon, Government hospital, Voyalpadu held autopsy over the dead body of the deceased and opined that the cause of death was due to organophosphate, an insecticide poison, and issued Ex.P22 post mortem report. On 05.05.2005 P.W.17 apprehended A1 and sent him for remand. After receiving all relevant documents and on completion of investigation, charge sheet was filed. 4. On committal, the learned Sessions Judge, framed charges under Sections 304-B, 498A and 306 IPC and when the same were read over to the accused in Telugu, he denied the same and claimed to be tried. 5. In order to substantiate its case, the prosecution got examined P.Ws.1 to 17 and marked Exs.P1 to P24, besides the case properties M.Os.1 to 6. 6. After the prosecution evidence is closed, the accused were examined under Section 313 Cr.P.C., for which they denied the incriminating evidence put to them. 7. The learned Sessions Judge on appreciation of the oral and documentary evidence found the accused guilty of the charges framed against him and sentenced him to suffer imprisonment as aforementioned. 8. Sri C.Padmanabha Reddy, learned counsel for the appellant strenuously contends that the marriage of the appellant with the deceased was performed on 24.11.2004 and the panchayat was held on 28.02.2005 which is two months prior to the death of the deceased and at the panchayat the deceased was sent along with the appellant and since then they were living happily as per the evidence of P.Ws.1 and 2. In the absence of any harassment soon before her death, the appellant cannot be convicted for the offence under Section 304B IPC and mere demand for purchase of an auto as stated by P.W.1 before the Mandal Revenue Officer cannot be termed as demand for dowry. Therefore, the conviction of the appellant for the offence under Section 498A IPC cannot be sustained and they are liable to be acquitted. In support of the same, reliance is placed on the judgment of the Hon’ble Supreme Court in Appasaheb v. State of Maharashtra[1]. 9. Learned Public Prosecutor sustained the conviction and sentence recorded by the learned Sessions Judge stating that when the deceased died within seven years of the marriage, a presumption under Section 113B of the Indian Evidence Act, 1872 will attract to the case of the prosecution. Even if the demand of the amount for Rs.20,000/- was towards additional dowry as stated by P.Ws.1 and 2, the conviction and sentence needs no interference. 10. In view of the submissions as referred to above, the point for consideration is whether the prosecution brings home the guilt of the accused beyond reasonable doubt? P O I N T :- 11. The entire case of the prosecution rests upon the evidence of P.Ws.1 to 3, father, mother and the elder brother of the deceased respectively. There is no dispute that the deceased was given in marriage to A1 and their marriage was performed on 24.11.2004. According to the evidence of P.Ws.1 and 2, at the time of marriage they paid Rs.10,000/- to A1 and presented minor chain and gold articles worth about Rs.50,000/- and after the marriage the deceased was sent to the house of the accused and lived for some time. Thereafter according to the prosecution, the accused made a demand of Rs.20,000/- towards additional dowry whereas in the earlier statement, P.W.1 stated before the Mandal Revenue Officer that A1 demanded the deceased Rs.20,000/- for purchasing an auto. The panchayat was held two months prior to the death of the deceased i.e., on 28.02.2005. 12. According to the evidence of P.W.1 at the time of panchayat they have pacified A1 and the deceased and the deceased was sent along with A1 and they were living happily. In the cross- examination, he admitted that A1 did not ask him Rs.20,000/- for purchasing auto, but admitted that he stated before the Mandal Revenue Officer that A1 demanded his daughter Rs.20,000/- for purchasing an auto. During the cross-examination, a suggestion was made to P.W.1 that the deceased was behaving abnormally with depression and that he was complained of stomach pain at the time of periods and was taking treatment, which was denied by P.W.1. P.W.2 also corroborated the evidence of P.W.1 about the presenting of the amount and articles at the time of marriage. In the cross-examination, P.W.2 admitted that she did not state before the Mandal Revenue Officer or before the police that A1 demanded a sum of Rs.10,000/- through the daughter, but she came to know the demand of Rs.10,000/- by A1 through her daughter for purchase of the auto. She also admitted that the deceased died within two months from the date of panchayat and she was informed by the Doctors at Government hospital, Vayalapadu that her daughter died due to pesticide poison. P.W.3 also corroborated the evidence of P.Ws.1 and 2 about the marriage and panchayat held two months prior to the death. In the cross-examination, he admitted that A1 took the deceased along with him on a cycle happily, when they sent the deceased after the panchayat. He gave the amount to P.W.1 and P.W.1 in turn handed over a sum of Rs.10,000/- to A2, father of A1, at the time of fixation of marriage. 13. The Tahsildar, who was examined as P.W.11 stated that as per the mediators statement at the time of inquest deceased appears to have been beaten with an intention to kill her and thereupon administered poison. In the cross-examination, he admitted that no external injuries were found on the dead body of the deceased. He further admitted that P.Ws.1 and 2 did not state before him that the deceased was beaten and sent out from the house with demand of money, towards additional dowry. 14. The Doctor-P.W.16, who conducted the post mortem examination on the dead body of the deceased, deposed that he conducted post mortem examination on the dead body of the deceased and issued Ex.P20 post mortem certificate and after receipt of the R.F.S.L.Report, he gave final opinion under Ex.P2 certifying that the deceased appeared to have died due to organophosphate insecticide poison. 15. The evidence of the Doctor-P.W.16 clearly establishes that the deceased died an unnatural death by consuming poison. With the above evidence, the prosecution miserably failed to establish the unlawful demand made of dowry soon before the death of the deceased to convict the appellant under Section 304B IPC. The earliest statement of P.W.1 before the Mandal Revenue Officer also establishes that the demand was for the purpose of purchasing an auto. Therefore, it cannot be termed as a demand for dowry, as held by the Supreme Court in Appasaheb’s case (referred supra). Therefore, the conviction and sentence against the appellant for the said offence is liable to be set aside. 16. In the result, the conviction and sentence recorded by the VII Additional Sessions Judge, Madanapalle vide Judgment, dated 21.08.2007, in Sessions Case No.232 of 2006, against the appellant/A1 for the offence punishable under Section 304B of I.P.C. is set aside. However, the conviction and sentence recorded against the appellant/A1 by the Court below for the offence punishable under Section 498A of I.P.C. is hereby confirmed. The remand period undergone by the appellant/A1 during the course of investigation, trial and after conviction shall be given set off under Section 428 of Cr.P.C. The appeal is partly allowed to the extent indicated above. ____________________ A.GOPAL REDDY, J __________________ RAJA ELANGO, J 20th April, 2011 Lmv [1] 2007(9) SCC 721