THE HON’BLE SRI JUSTICE G.V. SEETHAPATHI Criminal Appeal No.959 of 2004 Date: 22.04.2010 Between: Sandipogula Thupan … Appellant/accused AND The State of A.P., Rep.by its Public Prosecutor, High Court of A.P., Hyderabad. … Respondent/ Complainant THE HON’BLE SRI JUSTICE G.V. SEETHAPATHI Criminal Appeal No.959 of 2004 JUDGMENT: This Criminal Appeal is directed against the judgment dated 19.04.2004 in S.C.No.439 of 2001 on the file of V Additional District and Sessions Judge (Fast Tract Court), Ongole, wherein the appellant/accused is found guilty of offences punishable under Sections 304-B and 498-A of Indian Penal Code and he is convicted and sentenced to undergo Rigorous Imprisonment for seven years for the offence u/s.304-B IPC and R.I. for three years and also to pay a fine of Rs.500/-, in default to suffer Simple Imprisonment for one month for the offence u/s.498-A IPC with a direction that both the sentences shall run concurrently. 2. Heard the learned counsel for the appellant/accused and the learned Additional Public Prosecutor representing the respondent/State. Perused the records. 3. The case of the prosecution, in brief, is as follows: The accused is the husband of the deceased. PWs.1 & 2 are the parents and PW.3 is the brother of the deceased. They are all residents of same village. The deceased is none other than the daughter of maternal uncle of the accused. Their marriage was performed about three years prior to the occurrence. They led happy marital life for about three or four months. Later, the accused started asking the deceased to bring additional dowry and was harassing her. On the eve of Sankranthi i.e., in January 2001 the accused sent the deceased to her parents’ house and asked her to return only after meeting his demand for additional dowry. On the intervention of elders, the deceased was sent back to the house of the accused, however, the harassment continued. On 05.04.2001 there is a quarrel between the deceased and accused in the morning. When the deceased was alone in the house having got vexed with her life due to harassment and ill-treatment caused by her husband, she closed the door from inside and committed suicide by hanging herself with voni (chunni). At about 10.30 a.m. the accused returned home and found the deceased dead and on hearing cries, neighbours gathered. PW.1, father of the deceased on being informed of the incident rushed to the house of the accused and later in the evening gave a report, Ex.P.1 to the police having suspicion over the cause of death of the deceased. PW.10, Sub-Inspector of Police, registered the same as Crime No.20 of 2001 of J. Pangulur Police Station under Ex.P.7 FIR u/s.174 Cr.P.C. On a requisition, PW6, Mandal Revenue Officer, J. Pangulur conducted inquest under Ex.P.4 over the dead body of the deceased. PW.9, Assistant Civil Surgeon conducted post-mortem over the dead body of the deceased and noted the injuries found and issued Ex.P.6 post-mortem report opining that the cause of death is asphyxia due to mechanical compression of the neck. PW.10 examined witnesses during investigation and observed the scene of offence and prepared Ex.P.5 panchnama in the presence of PW.8 and another and seized MO.1 voni of the deceased. Later, he altered the section of law into 498-A IPC and 304-B IPC and after completion of investigation he filed the charge sheet for the said offences. 4. The accused appeared before the trial Court and denied the offences alleged and he pleaded not guilty of the alleged offences and charges were framed for the offences u/s.498-A and 304-B IPC. In support of their case, the prosecution examined PWs.1 to 10 and marked Exs.P.1 to P11 and MO.1. Exs.D.1 & 2 portion of statements of PWs.3 & 7 recorded under Section to Section 161 Cr.P.C are marked. The accused was examined u/s.313 Cr.P.C. explaining the incriminating circumstances appearing against him in evidence. On consideration of the material available on record, the trial Court found the accused guilty of the offences u/s.498-A and 304-B IPC and convicted him for the said offences and sentenced him as stated above. Aggrieved by the said conviction and sentences, the present Criminal Appeal is filed by the accused. 5. The learned counsel for the appellant/accused would contend that there is absolutely no evidence on record to establish the alleged demand for additional dowry or the alleged harassment in connection with the said demand and that the death was on account of such harassment. He would further contend that it was only for the first time PWs.1 to 3 stated in their evidence about three after the occurrence regarding the demand for additional dowry and the trial Court erred in placing reliance on such improved version of PWs.1 to 3. He would further contend that the trial Court totally erred in placing reliance on the statements of PWs.1 to 3 recorded u/s.161 Cr.P.C. for basing conviction, which is opposed to all cannons of law. He would further contend that the prosecution is not consistent in their stand as alleged in the charge sheet that it is a case of suicide, whereas in the evidence it was projected as if the deceased was beaten to death and there is no legally acceptable evidence in support of either of the two theories. 6. The learned Additional Public Prosecutor on the other hand would submit that the medical evidence on record clearly established the existence of injuries on the person of the deceased which is indicative of the cruelty meted out to her by the accused and in view of the presumption contained u/s.113-B of Evidence Act and having regard to the fact that the death occurred in the house of the accused and within seven years from the date of marriage, the conviction recorded by the trial Court is sustainable. 7. It is not disputed that the deceased is daughter of maternal uncle of the accused and they are all residents of same village and the marriage of the deceased with the accused took place about three years prior to the death of the deceased. PW.1 father of the deceased and PW.2 mother of the deceased have stated in their evidence that at the time of marriage in the year 1998 they gave Rs.10,000/- and household articles worth about Rs.5,000/- as dowry. They further deposed that on two occasions after marriage the accused sent the deceased to their house demanding more dowry. The further allegation of PWs.1 & 2 in the evidence is that on the eve of Sankranthi in 2001 the accused beat the deceased and sent her to their house to bring Rs.5,000/- as additional dowry and at the instance of elders the deceased was sent back to the house of the accused. Three months later in April 2001 the deceased died. PW.3 the brother of the deceased did not depose about the payment of dowry at the time of marriage. According to him, the accused used to beat the deceased and send her to parents’ house demanding additional dowry. PW.1 gave the complaint Ex.P.1 at 6 p.m. on the same day i.e., 05.04.2001, the date of occurrence. 8. It is significant to note that in Ex.P.1 PW.1 nowhere stated that any dowry was given at the time of marriage or that there is any demand by the accused for additional dowry subsequently or that the accused was subjected to any harassment or ill treatment for such demand for additional dowry or that he was beating and sending the deceased to her parents house asking to bring additional dowry. Even the alleged harassment for additional dowry on the eve of Sankranthi in 2001 and the intervention of elders resulting in the deceased being sent back to the house of the accused are not referred to in Ex.P.1. There is absolutely no reason or explanation for not making any references whatsoever to the above aspects in Ex.P.1 by PW.1. What all he stated in Ex.P.1 is that on being informed the incident he went to the house of the accused and saw the dead body of the deceased and he entertained some suspicion on the death of the deceased. Based on Ex.P.1 the case was registered initially u/s.174 Cr.P.C. and it was only at a later stage of investigation, the section of law was altered by PW.10 into Section 498-A and 304-B IPC. 9. Thus, it can be seen that what all PWs.1 to 3 deposed in their evidence about the alleged demand for additional dowry and alleged harassment of the deceased by the accused over such demand are not disclosed at the earliest point of time while giving Ex.P.1 and they stated for the first time while giving evidence about three years after the occurrence. It is significant to note that even by making statements u/s.161 Cr.P.C. during the investigation PWs.1 to 3 have not referred to any such demand for additional dowry or harassment over such demand. It is suggested to PWs.1 to 3 in their cross-examination that they are nowhere stated in the statements u/s.161 Cr.P.C. regarding the above. Though PWs.1 to 3 denied the suggestion, it is portion of testimony of PW.10, Investigating Officer, who recorded the statements u/s.161 Cr.P.C. that PWs.1 & 2 never stated before him during investigation u/s.161 Cr.P.C. that they gave any dowry at the time of marriage and subsequently the accused started demanding the additional dowry for Rs.5,000/- and subjected the deceased to ill-treatment and harassment over such demand and therefore, it can be seen that the testimony of PWs.1 to 3 about the alleged harassment and ill-treatment of the deceased by the accused over demand for additional dowry is clearly an improvement and embellishment on vital and material aspects indulged for the first time at the time of giving evidence and not stated anywhere at the earlier stage. It is well settled that such improved and embellished version of the witnesses on material aspects of the case is not safe to rely upon and base a conviction thereon. Curiously, the trial Court has relied upon the statements of PWs.1 to 3 contained u/s.161 Cr.P.C. in support of its finding that the deceased was subjected to cruelty. According to PW.10, Investigating Officer who recorded the statements of PWs.1 to 3 u/s.161 Cr.P.C. they did not refer to the alleged demand for additional dowry or alleged harassment over such demand for additional dowry. The trial Court observed that the statements of PWs.1 to 3 under 161 Cr.P.C. disclose that the accused harassed the deceased wife during her life time for dowry. The trial Court further observed that it is clearly stated by PWs.1 to 3 before the police and before the Court that the accused used to beat his wife and send her to her parents’ house to bring additional dowry. 10. The trial Court also referred to specific statements of PWs.1 to 3 said to have been made u/s.161 Cr.P.C. It needs no reiteration that the statements made by the witnesses before the police and recorded u/s.161 Cr.P.C. during the investigation are not substantive evidence and cannot be relied upon. It is unfortunate that the trial Court has sought to rely upon the statements of PWs.1 to 3 recorded during investigation u/s.161 Cr.P.C. and base a conviction thereon. In para 14 of the impugned judgment, the trial Court further observed that it is an admitted fact that among other things soon after her death (perhaps to be read as ‘soon before death’) she was subjected to cruelty and harassment by her husband. The accused nowhere admitted that the deceased was subjected to any cruelty and harassment at any time or that there was any demand for dowry. Noting the same as an admitted fact is clearly an erroneous approach on the part of the trial Court. 11. The trial Court further observed that in view of the said demand and also the fact that the deceased died in the house of the accused and that it is unnatural death, which occurred within seven years of marriage, the burden is heavy on the accused to prove that the death of the deceased is not a dowry death. Section 113-B of the Indian Evidence Act contains a presumption as to dowry death and 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 had been subjected by such person to cruelty or harassment for, or in connection with, any demand or 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 304-B of the Indian Penal Code (45 of 1860).” Before the presumption contained u/s.113-B can be drawn, it must be proved by the prosecution that soon before her death the woman had been subjected to cruelty or harassment for, or in connection with, any demand for dowry and then only the Court can presume that the person who subjected the woman to said cruelty or harassment had caused the dowry death. 12. In the present case, there is absolutely no record to show that there was any demand for additional dowry and that the deceased was subjected to cruelty or harassment over such demand. The testimony of PWs.1 to 3 in that regard cannot be relied upon as they have chosen to make the said allegation for the first time while giving evidence about three years after the occurrence and never raised any such allegation at any time before. PWs.4 & 5 neighbours of the accused who were examined to speak to the alleged harassment of the deceased by the accused did not support the prosecution and turned hostile. PW.7 another neighbour in the vicinity though did not turn hostile merely stated that on that date on hearing the cries she went to the house of the accused and found the deceased hanging to a beam and the accused placed the dead body of the deceased on the floor. In the cross-examination PW.7 denied the suggestion that she did not state before the police that there was a quarrel between the accused and the deceased on the date of incident or that on hearing the cries of the accused she went to the house of the accused. PW.10, Investigating Officer confirmed that PW.7 did not state before him what she stated in the evidence. Thus the testimony of PW.7 regarding the alleged quarrel between the deceased and accused on the morning of the date of occurrence is also clearly an improvement introduced for the first time in her evidence. The testimony of PW.7 is also silent about any demand by the accused for additional dowry or that the accused never subjected the deceased to any cruelty or harassment over such demand. Though the accused and deceased are closely related even prior to their marriage, no one among the circle of relations is examined to speak to the alleged demand by the accused for additional dowry or the harassment or ill-treatment said to have been meted out to the deceased. Thus the evidence adduced by the prosecution to establish the ingredients of the offences u/s.304-B and 498-A IPC is too scanty. 13. In order to constitute the offence u/s.304-B IPC, the prosecution has to establish that the death of woman among other things is caused otherwise than under normal circumstances and within seven years of marriage and soon before her death she was subjected to cruelty or harassment by her husband for, or in connection with any demand for dowry. Then only such death can be called ‘dowry death’ and the husband shall be deemed to have caused dowry death. U/s.498-A IPC it must be established by the prosecution that the husband subjected the wife to cruelty i.e., any wilful 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 or harassment of the wife with a view to coercing her to meet any unlawful demand for any property or valuable security. 14. In the present case, there is absolutely no evidence on record to show that the deceased was subjected to harassment over any unlawful demand for dowry or that soon before her death she was subjected to cruelty or harassment in connection with such demand for dowry. In other words, the prosecution has failed to establish that it is a case of dowry death falling within the ambit of Section 304-B IPC. In fact, the version of the prosecution projected during the trial is that the deceased was beaten by the accused and was killed, which is not the case in the charge sheet. 15. The medical evidence of PW.9 coupled with the Post Mortem certificate Ex.P.6 no doubt shows that besides injury on the neck, which is the cause of death, there are other injuries on the person of the accused. The prosecution did not establish by adducing necessary evidence as to how the said injuries were sustained by the deceased and under what circumstances. There is nothing on record to show that the deceased was beat by the accused soon before her death resulting in the said injuries. In fact, the case of the prosecution is that there was a quarrel between the accused and deceased on the morning of 05.04.2001 and the accused left the house and the deceased was staying alone and having got vexed with her life she committed suicide by hanging herself to the ceiling fan with the aid of voni. It is nowhere alleged that the accused beat the deceased and caused injuries nor there is any evidence in support of the same. The prosecution has, therefore, failed to explain as to how and under what circumstances the deceased sustained injuries, which were noted at the time of post mortem examination. In the absence of such evidence no inference can be drawn that the said injuries were caused by the accused. 16. Under those circumstances, it must be held that the prosecution failed to establish the ingredients of the offences u/s.498-A and 304-B IPC by adducing necessary evidence and the evidence on record is neither reliable nor adequate to base a conviction for the above said offences. The testimony of PWs.1 to 3 is wholly unreliable as the same is vitiated for the reasons stated supra. The conviction recorded by the trial Court on the basis of the evidence of PWs.1 to 3 and their statements before the police recorded under 161 Cr.P.C. during investigation is wholly unsustainable and hence, the same is liable to be set aside and it is accordingly set aside. Consequently, the sentences imposed on the accused by the trial Court for the above offences are also set aside. The bail bonds of the accused shall stand cancelled and the fine amount paid shall be refunded to him. 17. In the result, the Criminal Appeal is allowed setting aside the conviction and the sentence recorded against the accused by the trial Court in the impugned judgment. _________________ G.V. SEETHAPATHI, J Date: 22.04.2010 Isn