HONOURABLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL NO.2258 OF 2004 Dated 11-03-2011 Between: Thippani Anjaiah and 2 others. ……..Appellant And: State of A.P., rep. by PP., High Court of A.P. ………Respondent HONOURABLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL NO.2258 OF 2004 JUDGMENT: This is an appeal filed against the conviction and sentence passed by the III Additional Sessions Judge, (FTC), Asifabad in S.C.No.420 of 2003 on 20.10.2004 The appellants herein are the A.1 to A.3 and they were prosecuted for the offence under Section 304-B IPC alleging that the P.W.1 has performed the marriage of his deceased daughter Poshavva with A.1 who is resident of the same village about 3 years back. at the time of marriage, the P.W.1 presented 1 ½ acre agricultural filed and 1 ½ guntas house site worth Rs.1,30,000/- as a dowry and after the marriage for about 6 months, they lead matrimonial life happily and thereafter A.1 along with his parents A.2 and A.3 started harassing the deceased to bring the additional dowry i.e., extra 2 guntas of land. During the Ekadasi Festival, a Panchayat was held in the presence of elders P.Ws.8 to P.15 for the harassment of A.1 to A.3. In the Panchayat the accused pleaded his guilty and took his wife Poshavva along with him. On 3.6.2002 the A.1 beat the deceased and necked her out of his house to bring the additional dowry. Again he came back to the house of P.W.1 and thereafter, A.1 came to his house and again took the deceased to his house. On 10.06.2002 at about 6.00 a.m, the P.W.1 came to know that his deceased daughter consumed insecticide poison and was shifted to Government Civil Hospital, Luxettipet by P.Ws.5,6,7, 29 and 24 and where she died. Hence, the accused were prosecuted for the offence under Sections 498-A and 304-B read with Section 34 IPC. The learned Sessions Judge has framed the charges under Sections 498-A, 304-B and read with Section 34 IPC against the accused and the accused pleaded not guilty. In order to establish the charges, the prosecution has examined P.Ws.1 to 29 and got marked Exs.P.1 to P.26 and M.O.1 and on behalf of the accused Exs.D.1 and D.2 were marked. The learned Sessions Judge after taking into consideration of both the oral and documentary evidence found the accused guilty for the offences under Sections 498-A and 304-B IPC and thereby convicted and sentenced A-1 to undergo rigorous imprisonment for 10 years for the offence under Section 304-B IPC and simple imprisonment for 2 years and to pay a fine of Rs.1,000/- in default to undergo simple imprisonment for 2 months for the offence under Section 498-A. A.2 and A.3 are sentenced to suffer simple imprisonment each for 7 years for the offence under Section 304-B IPC and to undergo simple imprisonment of each for 1 year and pay each a fine of Rs.500/- in default to undergo simple imprisonment for 1 month for the offence under Section 498-A IPC. Aggrieved by the said conviction and sentence, the present appeal is field. The learned counsel for the appellants Smt C.Vasundara Reddy has pleaded that the P.W.1 has given the land at the time of marriage of the deceased with the A.1 without any demand made by the accused and the allegations made by P.W.1 against the accused demanding of half gunta of land extra for construction of the house as 1 ½ guntas which given earlier is not sufficient to construct a house and mere demand of half gunta of land will not amount to demand for additional dowry and the prosecution has failed to establish that the deceased was harassed by A.1 to A.3 in that regard. She further pleaded that nothing was alleged against A.2 and A.3 who are the parents of A.1 with regard to the alleged demand and harassment caused to the deceased. The learned counsel for the appellants has further pleaded that the Panchayat was held not with regard to harassing the deceased by A.1 to A.3 but it was held only with regard to registration of the land given at the time of marriage and as per the advise of the Panchayatdars, the land was got registered by P.W.1 in the name of A.1. She also further pleaded that the evidence of P.Ws.1 to 3 with regard to allegation of harassment caused by A.1 to A.3 is very vague and no specific overt acts attributed against the accused. More over in the evidence of P.Ws.1 to 3, there are contradictions and omissions and as such their evidence cannot be relied upon to establish the harassment caused to the deceased prior to her death. Therefore, the prosecution has failed to establish the harassment made to the deceased by the accused prior to her death in connection with demand for dowry. As such the accused cannot be convicted for the offence under Sections 498-A and 304-B IPC. On the behalf of the learned Public Prosecutor, it is argued that the evidence of P.Ws.1 to 3 clearly established that the harassment caused by the accused demanding for additional land of half gunta for construction of the house and as the same was not given by the parents of the deceased, the deceased was harassed by A.1 to A.3 and thereby she could not tolerate the harassment caused by the accused and she committed suicide by consuming insecticide poison and the mediators also categorically stated about the registration of the land in the name of A.1 subsequent to the harassment caused to the deceased by the accused. Therefore, the prosecution could able to establish the death of the deceased was under the suspicious circumstances within 7 years of her marriage and prior to her death she was subjected to cruelty and harassment in connection with demand for dowry. As such the lower court has rightly convicted and sentenced the accused for the offences under Sections 498-A and 304-B IPC. Now the point that arises for consideration is whether the prosecution could able to establish the offences under Sections 498-A and 304-B IPC against the accused beyond reasonable doubt? The learned counsel for the appellants has not disputed about the death of the deceased within 7 years of her marriage and he committing suicide by consuming pesticide poison. The appellant’s counsel contended that there was no demand for additional dowry or harassment the deceased prior to her death in connection with dowry. P.W.1 has stated that at the time of marriage, he gave 1 ½ acre of land towards dowry and also gave 1 ½ gunta of house site and the value of the land is Rs.1,30,000/- and after the marriage, the deceased lived happily with the A.1 for 6 months and thereafter A.1 demanded that he should be given half gunta of site extra as 1 ½ guntas of site which was already given is not sufficient for construction of the house and according to him, all the accused harassed and beat the deceased demanding for half gunta of site. He got held a Panchayat in the presence of the elders of the village and in that Panchayat, the elders have decided that the P.W.1 should get the land already given registered in favour of the accused and also should pay Rs.2,000/- and sent the deceased back to the house of the accused. Accordingly, P.W.1 got registered the site at his expenses in the name of A.1 and deceased jointly and paid Rs.2,000/- to A.1 and sent the deceased to the house of the accused along with A.1. Eight days after the deceased went to the house of the accused, the accused again raised a dispute saying that the house site of 1 ½ guntas was not sufficient for construction of a house. Since the accused started again harassment, the deceased came back to his house. Three days thereafter, A.1 came to his house and took the deceased back to his house assuring that she would not be ill-treated. Thereafter, in the early morning on Monday, the deceased committed suicide by consuming insecticide poison. Therefore, according to him the deceased was harassed for not giving half gunta of house site as the 1 ½ guntas of site already given is not sufficient for construction of a house and in that regard a Panchayat was held. But in the cross- examination, he has stated that whatever property that was given at the time of marriage of the deceased was given willingly with a hope that the deceased would live happily with the accused and he has not stated in Ex.P.1 complaint that the accused abused, beat and harassed the deceased saying that half gunta of site was not given. P.W.2 is the wife of P.W.1 and mother of the deceased also stated about the marriage of the deceased. At the time of marriage, a house site was given towards dowry. After the marriage the deceased went to the house of the accused and started living happily. For about 6 months the deceased lived happily with the accused and thereafter trouble started for her. A.2 and A.3 demanded additional dowry and A.1 beat her. The deceased informed her about the harassment caused by the accused to her. At the advice of elders, they paid Rs.2,000/- to the accused. Even after payment of that amount the accused demanded additional dowry. When the deceased informed about it they told her that they had no capacity to give some more dowry and advised her to go and live with the accused. Eight days thereafter the accused again came to their house then the A.1 came and took the deceased to his house saying that she would not be ill- treated. Again after she went to the house of the accused, she was put to harassment and so she committed suicide by consuming poison. In the cross-examination, she admitted that she was not present at the time of holding of the Panchayat and she does not know about the decision of the elders of the Panchayat and according to her P.W.1 paid Rs.2,000/- to the A-1 at their house in the presence of elders. She does not know the reason as to why Rs.2,000/- was paid. P.W.3 is the brother of the deceased also stated about the giving of 1 ½ acre of agricultural land and 1 ½ guntas of house site at the time of marriage of the deceased with A.1 and after that they lived happily for 6 months and according to him A.1 was beating the deceased while A.2 and A.3 harassed her. The deceased came to his house and informed about the harassment. They got a Panchayat held in the presence of elders. In the Panchayat, the elders advised for getting the land and site registered and accordingly they got land registered and paid Rs.2,000/- and sent the deceased back to the house of the accused Again the accused started harassing the deceased and the deceased came back to their house and they stated that they have no capacity to pay the additional dowry and sent her to the house of the accused and thereafter the deceased lived happily for some days with the accused and thereafter the deceased was taken to the hospital as she consumed poison. In the cross-examination, he stated that he did not know about the details of the property given at the time of marriage and P.W.1 only knows about it and he did not attend the panchayat. P.W.4 is the younger brother of the P.W.1, he stated that at the time of marriage of the deceased with A.1 some property was given towards dowry. He attended the marriage. Thereafter the deceased and the accused lived happily. He does not know about the disputes. Therefore, the only evidence available on record is the evidence of P.Ws.1 to 3 with regard to the demand of the additional dowry by the accused as alleged by the prosecution. Even according to their evidence, at the time of marriage, they have given 1 ½ acre agricultural land and 1 ½ guntas of house site and according to them A.1 demanded for giving half gunta of house site extra as 1 ½ guntas of house site given already is not sufficient for construction of the house and in that connection the accused has harassed the deceased. But in the complaint Ex.P.1 given by P.W.1 he has stated that A.1 has demanded 2 guntas of land towards additional dowry and he refused to give the same to him and thereafter his son-in-law, his mother and father started picking up quarrel with her daughter and they beat and teasing her for additional dowry of 2 guntas of land and they held a panchayat and in the said panchayat, her son-in-law agreed that he will not demand additional dowry of land and he took his daughter to his house. On 3.6.2002, his son-in-law, his father and mother have beat his daughter and sent her back to their house for getting the additional dowry. But, after 3 days again his son-in-law came to their house and took the deceased with a promise that he will not ask additional dowry and with such promise he took his daughter to his house. On 10.6.2002 at 6.00 a.m in the morning, he came to know through one Sakali Rajanna that his daughter has taken insecticide poison and got admitted into the hospital at Luxettipet. Therefore, either in the complaint or in the evidence of PWs.1 to 3, they have not specifically stated what is the harassment caused by the accused. According to P.Ws.1 to 3, in view of harassment caused by the accused to the deceased, a panchayat was held before the elders. According to the prosecution, P.Ws.8, 9, 10,11, 12, 13, 14 and 15 are the Panchayatdars and the Panchayat held with regard to the disputes between the deceased and the accused. P.W.8 Thippani Rajaiah admitted that a Panchayat was held in the village in connection with the dowry given at the time of the marriage of the deceased with the accused. According to him, he did not see as to what was discussed and the decision taken by elders in the Panchayat and thereby he turned hostile to the prosecution. P.W.9 Gope Bhumaiah who also admitted to be elder in the Panchayat has stated that the Panchayat was held but settled the disputes in respect of the land agreed to be given by P.W.1 to the accused at the time of marriage of the deceased with A.1 and in the Panchayat, he and other elders advised P.W.1 to register the property agreed to be given, in favour of the accused and on their advise P.W.1 paid Rs.2,000/- to the accused. P.W.1 brought papers for registering 1 ½ guntas of house site in the name of the accused but the accused insisted for 2 guntas and so the site remained still in dispute. But he did not know as to what made the deceased to commit suicide by consuming insecticide poison. In the cross-examination, he admitted that there are four elders on behalf of the accused in the panchayat but he cannot say the names of those elders. A document was written in the panchayat stating that the land had to be got registered and P.W.1 should pay Rs.2,000/-. Outside Nambala village there is tamarind tree and under that tree the panchayat was held. P.W.10 Muthe Durgaiah also stated about the holding of panchayat since there was allegation that the land agreed to be given at the time of marriage was not given and they advised that the land should be registered and given to the accused. They also advised that Rs.2,000/- should be paid to the accused. P.W.11 Sanga Thirupathi has also stated that the panchayat was held to settle the dispute relating to the land that was not registered in favour of the accused. P.W.12 Muthe Chinnaiah has stated that at the time of marriage alliance of A.1 he went and participated in the talks. In the talks the accused demanded money but, P.W.1 said that he had no money and agreed to give land and accordingly he gave land. In his presence no panchayat took place and he did not attend the panchayat held by P.Ws.9 to 11 and others. The wife of A.1 died but he do not know the reason as to why she died. P.W.13 Budde Rajaiah has stated that in the pahcyat, the elders advised that P.W.1 should register 1 ½ acres of land and 1 ½ guntas of site in the name of the deceased. As per the advise of the Panchayatdars, P.W.1 paid Rs.2,000/- to the accused. P.W.14 Budde Rajaiah has stated that he does not know any thing about the panchayat and no panchayat took place in his presence. P.W.15 Nunne Papaiah has also stated that no panchayat was held in his presence and he has stated that he was present at the time of marriage of the deceased with A.1 and he did not know whether any dowry was given by the P.W.1 at the time of marriage. All the panchayatdars have turned hostile to the prosecution. Even as per the evidence of the above mediators for the panchayat they only advised P.W.1 to register the land which was agreed to be given at the time of marriage in the name of A.1 and to pay Rs.2,000/- and they did not state about advising the accused to live happily with the deceased and they also did not state about the disputes between the deceased and the accused and also with regard to the harassment made by the accused. Therefore, from the evidence of P.Ws.1 to 3, it is evident that the accused demanded the deceased for additional dowry of half gunta of house site as the 1 ½ guntas of house site is not sufficient for construction of the house and according to them in that regard a panchayat was held but the panchayatdars have not stated anything about the accused demanding half gunta of land extra and the P.W.1 refusing to give the same as mentioned in Ex.P.1 complaint. Therefore, the demand for half gunta of site by the accused was not established by the prosecution from the above said evidence. The learned counsel for the appellants has pleaded that in order to establish the offence under Section 304-B IPC, the prosecution has to establish that there was a demand for dowry prior to the death and there should be harassment or cruelty or ill-treatment caused to the deceased in connection with the said demand for dowry and in support of her contention, she relied upon a decision rendered in Yallamanda Chand Basha and others v. State of A.P.[1] wherein the Division Bench of this Court has held: “Mere making of demand of amounts, unless followed by an element of cruelty or harassment, does not attract provisions of Section 304-B IPC. Compliance with demands without any protest cannot be treated as harassment for dowry.” The other decision relied upon by the learned counsel for the appellants is rendered in Hazarilal v. State of Madhya Pradesh[2]. “In this decision, the High Court finding that the appellant husband was financing P.W.1 father of the deceased, and hence, there was no question of demand of dowry, acquitting him of charges under S.304-B. However, it convicting him under S. 498-A holding that after giving birth to a child in the normal course she could not have entertained the idea to commit suicide unless she was being harassed by appellant. Testimonies of PWs showing that they spoke about dowry to be basis for suicide. No other material to show as to how the deceased was being harassed or subjected to cruelty.” On the above said facts, the Apex Court has held: “That the conclusion of the High Court that because the deceased committed suicide there must be some harassment and cruelty is insupportable and indefensible. Merely on surmises and conjectures, conviction could not have been recorded. There is a vast difference between “could have been”, “must have been” and “has been”. In the absence of any material, the case falls in the first category and as such conviction is impermissible.” The other decision relied upon by the learned counsel for the appellants is rendered in Amar Singh v. State of Rajasthan[3] wherein the Apex Court has held: “Mere demand of dowry, not sufficient under Sx.304-B and 498-A. It must be shown that soon before her death deceased was subjected by accused persons to cruelty or harassment for, or in connection with, any demand of dowry. No evidence in case of father-in-law and mother-in-law about their exact conduct which caused harassment to deceased. A prosecution witness who merely uses word “ harassed” or “tortured” without describing exact conduct of accused, which according to him, amounts to harassment or torture may not be believed by Court in cases under Ss. 498-A and 304- B. View taken by High Court that charges as against them not established beyond reasonable doubt and they were implicated because they were members of accused-husband’s family, justified and acquittal is proper.” Therefore, in view of the above said decisions, there must be cruelty or harassment in connection with any demand for dowry prior to the death of the deceased to establish the offence under Sections 304- B and 498-A IPC. In the present case as already observed, the accused has demanded for half gunta of extra site towards dowry. Even that was not established by the prosecution. With regard to harassment caused by the accused, P.Ws.1 to 3 have only stated that they harassed the deceased but no specific overt acts were attributed or the manner in which she was harassed by the accused. In view of the above said decisions, mere using the words harassed is not sufficient to conclude that the accused has treated her with cruelty in connection with demand for additional dowry. More over the Panchayatdars who have said to be panchayat elders have not spoken any thing about the same. As the appellants’ counsel has not disputed about the death of the deceased by consuming poison, the evidence of P.Ws.5 and 6 who have shifted the deceased to the hospital and the mediators for the inquest who turned hostile to the prosecution need not be discussed. The panchayatdars for the scene of offence also turned hostile and the persons who have shifted the deceased to the hospital are the neighbours of the accused and they are the proper persons to speak any thing about harassment by the accused towards deceased but they turned hostile to the prosecution. Therefore, the only evidence available with regard to harassment caused to the deceased by the accused is the evidence of P.Ws.1 to 3 and as already observed above they also not specifically spoken about the manner in which the deceased was harassed by the accused. Therefore, in the above circumstances, I hold that the prosecution has failed to establish the offences under Sections 304-B and 498-A against the accused beyond reasonable doubt. The learned Sessions Judge even though has discussed about the ingredients of Section 304-B IPC and Section 113-B of the Evidence Act, he did not give any finding with regard to harassment, cruelty prior to her death and he simply come to the conclusion that the deceased died within 7 years of her marriage and the accused has demanded for half acre of land and come to the conclusion that the accused caused the dowry death of the deceased. Therefore, in view of the above discussions, the said finding is liable to be set aside. In the result, the appeal is allowed and the conviction and sentence passed by the III Additional Sessions Judge, (FTC), Asifabad in S.C.No.420 of 2003 dated 20.10.2004 is hereby set aside and all the accused are acquitted. ______________________ P.DURGA PRASAD,J. Date:11.03.2011. Gk. HONOURABLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL NO.2258 OF 2004 Dated 11.03.2011 Gk. [1] 2008(2) ALT