*HON’BLE SRI JUSTICE V.V.S. RAO & *HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU +Crl.A. No.1720 OF 2006 % 05-03-2010 #Gorre Dharma Reddy and 2 others …. Appellants Vs. $ State rep. By Sub Divisional Police Officer, Karimnagar, rep by the Public Prosecutor. …. Respondent !Counsel for the Petitioner : Sri K. Venu Madhav Counsel for the Respondent: Public Prosecutor <Gist : >Head Note: ? Cases referred: 1.2006(2) ALT (Crl.) 33 (SC) 2.2007(2) ALT (Crl.) 162 (SC) IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HON’BLE SRI JUSTICE V.V.S. RAO & HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL NO.1720 OF 2006 DATE:05.03.2010 Between: Gorre Dharma Reddy and 2 others …… Appellants/Accused Nos.1 to 3. And: The State, through Sub Divisional Police Officer, Karimnagar, rep. by PP. …..Respondent. HON’BLE SRI JUSTICE V.V.S. RAO AND HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL NO.1720 OF 2006 JUDGMENT: (per Hon’ble Sri Justice Samudrala Govindarajulu) This appeal is filed by the accused Nos.1 to 3 against Judgment dated 29.11.2006 passed by the III Additional Sessions Judge, Karimnagar in S.C.No.239 of 2006 by which the lower court convicted A- 1 to A-3 under Section 304B IPC and sentenced them to imprisonment for life; convicted them under Section 498A IPC and sentenced them to rigorous imprisonment for three years and fine of Rs.1,000/- each; convicted them under Section 3 of the Dowry Prohibition Act and sentenced them to rigorous imprisonment for five years and fine of Rs.1,65,000/- each; and convicted them under Section 4 of the Dowry Prohibition Act and sentenced them to rigorous imprisonment for two years and fine of Rs.500/- each; and also directed that total fine amount of Rs.4,95,000/- imposed under Section 3 of the Dowry Prohibition Act, shall be paid to P.W.1 towards compensation. It is alleged that about six months prior to date of the offence, marriage of Anitha with A-1 was performed and that at the time of marriage, P.W.1 father of Anitha gave Rs.5,00,000/-, Hero Honda Motor cycle, 12 tolas of gold, half tola of gold ring and wrist watch to A-1 and gave Rs.25,000/- towards ‘Adapaduchu Katnam’. A-2 and A-3 are parents of A-1. A-1 was working as teacher in private school viz., Gnana Jyothi in his village Sreeramulapalli of Kamalapur Mandal. It is alleged that after two months of marriage, A-1 to A-3 started harassing Anitha demanding to bring additional dowry of Rs.5,00,000/- or Ac.3.00 of land located road side in Mucherla Nagaram village of her parents and that about four months ago they drove her out of house, when Anitha came to her parents’ house and narrated the harassment and that when P.W.1 along with his brother P.W.6 and P.W.16 took Anitha to the accused and enquired, A-1 to A-3 bluntly asked them to pay Rs.5,00,000/- or give Ac.3.00 of land as additional dowry and that P.W.1 assured them to fulfil their demand by Ugadi festival and left the deceased in house of the accused. It is further alleged that on 01.11.2004, the deceased informed P.W.1 over telephone about A-1 to A-3 harassing and ill-treating her mentally and physically with the same demand and about she informing the same to her sister P.W.4 and brother-in-law P.W-5 over cell phone. While so, on 2.11.2004 Anitha committed suicide by hanging in house of the accused, allegedly because of harassment and ill-treatment of the accused for additional dowry. The lower court framed charges against A-1 to A-3 for offences punishable under Sections 498A, 304B or alternatively 306 IPC and Sections 3 and 4 of the Dowry Prohibition Act. A-1 to A-3 pleaded not guilty of the charges in the lower court. During trial in the lower court, the prosecution examined P.Ws.1 to 19 and marked Exs. P.1 to P.16 and M.Os., 1 to 4. Ex.D-1 was marked on behalf of the accused. When the lower court recorded conviction of A-1 to A-3 under Section 304B IPC, recording of another conviction against them under Section 498A IPC is not warranted at all because facts constituting offence punishable under Section 498A IPC are all included in offence punishable under Section 304B IPC. When the victim woman dies within seven years of her marriage, then subject to satisfying other requirements, Section 304B IPC is attracted. When the victim dies beyond seven years of her marriage, then first limb of Explanation to Section 498A IPC applies; In such a case, death is by way of suicide, Sections 498A and 306 IPC will be attracted in the place of Section 304 B IPC if death of the victim occurred beyond seven years of her marriage. Therefore, when the lower court recorded conviction under Section 304B IPC, again convicting the same accused under Section 498A IPC is not warranted in law. Statutory facts/basic ingredients to attract Section 304B IPC are:- 1. Death of the woman should be caused by burns or fatal injury or otherwise than under normal circumstances. 2. Such death should have occurred within seven years of her marriage. 3. The victim was subjected to cruelty or harassment by her husband or any relative of her husband 4. Such cruelty or harassment was for or in connection with demand for dowry 5. Such cruelty or harassment coupled with demand for dowry should be soon before her death It is contended by the appellants’ counsel that marriage of the deceased Anitha with A-1 took place about eight years prior to her death and not six months prior to her death. At this stage itself it may be noted that no evidence is let in by the accused to show date of marriage. No doubt, burden is on the accused to prove facts relating to the offence. The deceased was aged 19 years by the date of her death. She was an young girl by that day. A-1 was aged 26 years as per age given for A-1 in the charge sheet which was filed on 13.5.2005. If really marriage of A-1 with Anitha took place eight years prior to her death, then it would be a child marriage in respect of both of them. Not only P.Ws.1 to 6 who are parents, brother, sister, brother- in-law and paternal uncle of the deceased but also P.W.16 who is friend of P.W.1 deposed that marriage of the deceased was performed six months prior to her death. Their evidence was not challenged in their cross examination on this aspect. P.W.9 is a neighbour and cousin of A-2. he says that marriage between the deceased and A-1 took place two or three years prior to death of the deceased. P.W.10 is Washerman of the accused. He says that marriage of the deceased was performed six months prior to her death. Thus, evidence on record undoubtedly prove that marriage of the deceased Anitha with A-1 took place six months prior to her death and at any rate, within seven years of her death. There is no dispute at this stage that the deceased committed suicide by hanging. P.W.18 who is the Civil Surgeon in Government Hospital, Huzurabad and who conducted autopsy over dead body of the deceased opined in Ex.P-12 post-mortem report and in Ex.P-14 final opinion that the deceased died due to asphyxia resulted from hanging. P.W.7 who is the Mandal Revenue Officer, Kamalapur who conducted inquest on dead body of the deceased in presence of panch witnesses under cover of Ex.P-3 inquest Panchanama deposed that he and panch witnesses opined that the deceased committed suicide because of ill-treatment to her by A-1 to A-3 for the sake of additional amount of Rs.5,00,000/- or Ac.3.00 of land. Thus, it is proved that the deceased Anitha died by way of suicide i.e., otherwise than under normal circumstances. It was not a natural death. The alleged demand for additional dowry of Rs.5,00,000/- or Ac.3.00 of land was spoken to by P.Ws. 1 to 6 and 16. P.Ws.8 to 10 who are neighbours and washerman of the accused turned hostile to the prosecution. It is their evidence that A-1 and the deceased were living amicably and that they do not know reason for death of the deceased. For outward appearance, there may or may not be quarrels among family members. Simply because there were no quarrels which were not noticed by neighbours and washerman, one cannot rule out the same. Only family members and relations who were informed about the same will be knowing whether there were any quarrels or harassment or cruelty within the family. It is evidence of P.W1 that A-1 and the deceased lived happily for two months after their marriage and thereafter quarrels took place and that he came to know through his daughter about A-1 to A-3 demanding additional amount of Rs.5,00,000/- and that his daughter informed the same when she visited his house. P.W.1 says that he took P.W.16 and P.W.6 to Sreeramulapalli where A-1 to A-3 reside together and that the elders and himself advised A-1 and the deceased to live amicably and that he (P.W.1) promised to provide the amount or otherwise would give Ac.3.00 of land by Ugadi festival. He says that thereafter A-1 and the deceased lived cordially for three months and that P.W.2 who is the eldest daughter came to know that there were disputes and quarrels for additional amount, and that 15 days thereafter he received telephonic message about death of the deceased Anitha. He says that his daughter committed suicide because of mental humiliation made to her by A-1 to A-3 for the sake of additional amount. P.W.1 gave Ex.P-1 report to the police on the same day of death of the deceased. P.W.17 the then Assistant Sub Inspector of Police, Kamalapur police station received Ex.P-1 from P.W.1 and registered the same as case in Crime No.140 of 2004 under Sections 498A, 304B I.P.C and Sections 3 and 4 of the Dowry Prohibition Act and issued Ex.P-11 F.I.R. P.W.17 and P.W.19 (Sub Divisional Police Officer, Karimnagar) investigated into the case. Evidence of P.W.1 is consistant with averments in Ex.P-1 report. In cross examination P.W.1 deposed that he came to know for the first time two months after marriage of the deceased with A-1 about demand for additional amount and that he went to house of the accused after coming to know about the demand and brought his daughter to his house and that ten days thereafter he took P.W.6 and P.W.16 and the deceased to house of the accused and questioned them. He further says that on the next day of he receiving telephone message from P.W.4, he received death message of the deceased. It is evidence of P.W.2 that after two months of marriage,A-1 to A-3 ill- treated, beat and abused the deceased demanding additional amount of Rs.5,00,000/- or Ac.3.00 of land and drove the deceased out of their house when the deceased came to their house and that on the same day P.Ws.1, 6 and 16 along with the deceased went to house of the accused. She further says that on one day prior to her death, the deceased telephoned to them and informed about the accused ill- treating her by abusing and beating for getting the promised amount of Rs.5,00,000/- or Ac.3.00 of land and that her daughter asked her to send P.W.1. In cross examination, P.W.2 deposed that there is no telephone in their house and there is no telephone in house of the accused and that they have not received any telephone call directly from the deceased, but P.W.5 used to receive calls from the deceased. Even though there was no telephone facility in house of the accused, there is S.T.D booth everywhere in this country including remote villages. Irrespective of telephone calls or cell phone calls, according to P.Ws.1 and 2, the deceased informed them about harassment meted out to her by A-1 to A-3 for the sake of additional amount of Rs.5,00,000/- or Ac.3.00 of land. P.W.3 is elder brother of the deceased. He says that one day prior to her death i.e., on 01.11.2004 they received telephone message from the deceased about the accused ill-treating her for getting additional amount of Rs.5,00,000/- or Ac.3.00 of land. In cross examination, he deposed that Sammireddy who is their neighbour received telephone call about death of the deceased. P.W.6 deposed that six months after marriage between A-1 and the deceased, she was subjected to cruelty and that he came to know about ill-treatment through P.W.1 and the deceased when the deceased came to house of her parents and that he came to know through the deceased that she was ill- treated for getting an amount of Rs.5,00,000/- or Ac.3.00 of land. He further says that thereupon himself, P.W.1 and P.W.16 took the deceased to house of the accused and questioned A-1 as to why he beat the deceased and that A-1 disclosed that he wanted amount, and that they agreed to provide amount of Rs.5,00,000/- by Ugadi festival. P.W.16 deposed that two months after marriage, he received telephone call from P.W.1 about quarrel taking place between A-1 and the deceased, and the deceased coming to his house and that P.W.1 asked him to come to his house and that he went to house of P.W.1 as the deceased Anitha was there and that when he enquired her she disclosed that A-1 to A-3 demanded Rs.5,00,000/- as additional amount and A-1 beat her and drove her out of his house. He further says that that on the same day, he, P.W.1 and P.W.6 went to house of the accused and enquired A-1 to A-3 who stated that they want Rs.5,00,000/- and unless the said amount is paid they will not be taking her into their house. He says that P.W.1 agreed to give the said amount by Ugadi and that the accused demanded for paying the said amount immediately and that they convinced A-1 to A-3 that P.W.1 would pay the said amount by Ugadi as the amount asked was huge amount. P.W.4, sister of the deceased deposed that she came to know through the deceased about the accused ill-treating her for additional amount of Rs.5,00,000/- or Ac.3.00 of land and that when the deceased came to house of her parents, she disclosed about the ill-treatment. In cross examination, she deposed that she came to know about ill-treatment to the deceased two months after the marriage for the first time when she came to her parents’ house. It is her further evidence that on 01.11.2004, the deceased telephoned to cell phone of her husband P.W.5 and that she had conversion with the deceased and that the deceased informed by phone that the accused were ill-treating her physically and mentally for getting additional dowry of Rs.5,00,000/- or Ac.3.00 of land and asked her to convey the same to her parents and to see that P.W.1 was sent there. She further says that the deceased was having fourth month pregnancy. P.W.5 deposed that he came to know through the deceased herself on cell phone conversation that A-1 to A-3 ill-treated her for getting additional dowry of Rs.5,00,000/- or Ac.3.00 of land. He says that he conveyed the same to P.Ws.1 and 2. It is his further evidence that on 01.11.2004 he received another telephone call from the deceased Anitha to his cell phone and that the deceased informed about the accused ill-treating her mentally and torturing her for getting promised amount or land and that P.W.4 had also conversation with the deceased on 01.11.2004 through his cell phone and that both of them went to house of P.Ws.1 and 2 and informed the same to them. The above evidence of P.Ws.1 to 6 and 16 undoubtedly proved that A-1 to A-3 were harassing the deceased mentally and physically and were torturing her for the sake of Rs.5,00,000/- or Ac.3.00 of land. Therefore, the decisions in Harjit Singh v. State of Punjab[1] and Biswajit Halder @ Babu Halder v. State of West Bengal[2] in which the accused were acquitted by the Supreme Court for want of proof of harassment of the victim for the sake of dowry soon before her death, hence no application herein. Evidence of P.Ws.4 and 5 clearly establish that even one day prior to her death i.e., on 01.11.2004, the deceased expressed her anguish and wept saying that the accused were torturing her for the sake of Rs.5,00,000/- or Ac.3.00 of land. It is only for that reason, the deceased committed suicide by hanging inspite of the fact that she was carrying 5th month pregnancy as per Ex.P-12 post-mortem certificate. Therefore, we have no hesitation to come to the conclusion that the deceased committed suicide because of cruelty and harassment of A-1 to A-3 towards her since two months after her marriage with A-1 and even soon prior to her death. Thus, irrespective of invoking any presumption under Section 113B of the Evidence Act, the prosecution was able to prove all the necessary facts constituting offence of ‘dowry death’ against A-1 to A-3. The lower court rightly found A-1 to A-3 guilty of the offence under Section 304B IPC. In so far as offence punishable under Sections 3 and 4 of the Dowry Prohibition Act are concerned, it is evidence of prosecution witnesses to the effect that dowry of Rs.5,05,000/-, Hero Honda Motor Cycle, 12 tolas of gold ornaments, half tola of gold ring were given to A-1 and Rs.25,000/- was given towards ‘Adapaduchu Katnam’. Naturally there is no documentary proof for the same. One cannot expect any documentary proof for giving of dowry etc. P.W.1 in cross examination deposed that at the time of ‘Varapooja’ Rs.50,000/- was given and that he paid balance dowry at the time of marriage. He did not say from what sources he could raise so much of money. P.W.4 deposed in cross examination that her father took Rs.1,00,000/- from them. P.W.1 deposed in cross examination that he purchased gold at Warangal and got prepared the ornaments and that he has got receipt to show that he purchased gold. Even though any such receipt is not filed, in Hindu Marriages one can reasonably expect giving of gold ornaments by the bride’s father to his daughter. Gold ornaments are not meant for the bride-groom, except a gold ring. P.W.2 deposed in cross examination that she was not present when negotiations or payment or giving of articles took place and that she did not attend for ‘Varapooja’. P.W.3 deposed in cross examination that he has not personally participated in negotiations of marriage and that he does not know how his father secured amount for performing marriage of the deceased and that he does not have personal knowledge when the amount was paid and how much amount was paid. He says that P.W.1 did not disclose particulars of the amount paid till death of the deceased. P.W.4 deposed in the cross examination that she does not know how her father secured remaining amount other than Rs.1,00,000/- taken from them. She says that she was not present in marriage negotiations prior to marriage between A-1 and the deceased and that her husband P.W.5 was not aware about marriage negotiations. P.W.6 deposed that dowry and articles were given prior to marriage. P.W.16 deposed that Rs.50,000/- was paid by the P.W.1 on ‘Varapooja’ day and remaining balance amount and articles were given by P.W.1 on the date of marriage. In cross examination, he admits he did not state to the police about P.W.1 paying Rs.50,000/- at the time of ‘Varapooja’. As pointed out earlier, A-1 is a resident of Sreeramulapalli village of Kamalapur Mandal of Karimnagar District. He was working as teacher in a private school in that village. P.W.1 is an agriculturist. If really P.W.1 paid total dowry of Rs.5,05,000/- at the time of marriage, having regard to financial status of the parties and their social position, it would be difficult to believe that the accused demanded another sum of Rs.5,00,000/- in addition to original dowry of Rs.5,05,000/-. The additional amount demanded by the accused is almost equal to original agreed dowry amount. It throws lot of doubt on payment of original agreed dowry amount by P.W.1 to the accused. P.W.1 had to borrow Rs.1,00,000/- from P.Ws.4 and 5 for marriage of the deceased. The said amount might have been utilised by P.W.1 for purchase of gold and other customary articles apart from incurring marriage expenses. This Court came to the conclusion that there was demand for Rs.5,00,000/- by the accused from P.W.1. The said demand, in our opinion, is nothing but demand for payment of original agreed amount which was not paid at the time of marriage. When huge amount of Rs.5,00,000/- was demanded by the accused, P.W.1 would not have agreed to pay the same or in the alternative agreed to give Ac.3.00 of land within four months of marriage, if really he paid agreed dowry amount of Rs.5,05,000/- to the accused at the time of marriage. Therefore, this Court is not inclined to place reliance on P.W.1’s evidence to the extent of payment of dowry of Rs.5,05,000/- to the accused at the time of marriage or ‘Varapooja’. Thus, the prosecution could not lead acceptable evidence to prove offences under Sections 3 and 4 of the Dowry Prohibition Act. The prosecution could only prove offence punishable under Section 304B IPC. The offence of ‘dowry death’ under Section 304B IPC prescribes imposition of imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life. This is not a case of bride burning. It is not a case of homicide. It is a case of suicide committed by the deceased because of harassment of A-1 to A-3 to her for the sake of Rs.5,00,000/- or Ac.3.00 of land. There are no strong reasons for imposing maximum punishment of imprisonment for life in this case. In the circumstances, we deem it appropriate in the interest of justice to impose rigorous imprisonment for seven years instead of imprisonment for life. In the result, the appeal is partly allowed setting aside convictions and sentences passed by the lower court against the appellants 1 to 3/ A-1 to A-3 for offences under Section 498A IPC and Sections 3 and 4 of the Dowry Prohibition Act. The appeal is partly dismissed confirming conviction of the appellants 1 to 3/A-1 to A-3 under Section 304B IPC, but altering sentence of imprisonment alone from life imprisonment to rigorous imprisonment for seven years. _______________ V.V.S.RAO, J. ____________________________________ SAMUDRALA GOVINDARAJULU, J. 05.03.2010 Note: L.R. Copy to be marked. //By Order// Gk. HON’BLE SRI JUSTICE V.V.S. RAO & HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL NO.1720 OF 2006 DATE:05.03.2010 Gk [1] 2006(2) ALT (Crl.) 33 (SC) [2] 2007(2) ALT (Crl.) 162 (SC)