*HON’BLE SRI JUSTICE D.S.R.VARMA AND *HON’BLE SRI JUSTICE R.KANTHA RAO + CRL.A.NO.606 OF 2007 % Date: 09-09-2009 Between: # Sirikonda venkata Krishna .. Appellant and $ The State of A.P., rep.by Public Prosecutor, High Court of A.P. Hyderabad., … Respondent ! Counsel for appellant: Sri C.Praveen Kumar ^ Counsel for respondent: Public Prosecutor < GIST: >HEAD NOTE: ? Cases referred: [1] 2000 (3) Supreme 554 2 2009(1) ALD (Crl.) 252 (SC) 3 2007 Crl.L.J. 20 HON’BLE SRI JUSTICE D.S.R.VARMA AND HON’BLE SRI JUSTICE R.KANTHA RAO CRL.A.NO.606 OF 2007 BETWEEN: Sirikonda venkata Krishna .. Appellant and The State of A.P., rep.by Public Prosecutor, High Court of A.P. Hyderabad., … Respondent THE HON’BLE MR JUSTICE D.S.R. VARMA AND THE HON’BLE MR JUSTICE R. KANTHA RAO CRIMINAL APPEAL NO. 606 of 2007 JUDGMENT: (Per Hon'ble Sri Justice R.Kantha Rao,J) This appeal is directed against the judgment, dated 31.05.2007 passed by the V Additional Sessions Judge (Fast Track Court), West Godavari at Eluru in S.C.No.574 of 2001. 2. The appellant was tried by the learned Additional Sessions Judge for the charges under Sections 304-B, 302 and 201 of IPC, he was found guilty for the charge under Section 304-B of IPC, was convicted for the said charge and sentenced to undergo imprisonment for life. 3. Challenging the said order of conviction and sentence, the appellant preferred this appeal. 4. The prosecution case, in a nutshell, is as follows: The appellant (Sirikonda Venkata Krishna) is a resident of Kovvur in West Godavari District and he is a practicing advocate at Kovvur. The deceased No.1 (Himabindu) aged 22 years at the time of her death was the wife of the appellant. The deceased No.2 (Sarani) aged 10 months at the time of her death was his daughter. PW-2 (Kakinada Jagadeesh) is the father of the deceased No.1, PW-3 (Kakinada Kanaka Durga) is her mother, PW-4 (Kakinada Bhagyavathi) is her paternal grand mother and PW-5 (Bhimadole Mangatayaru) is the daughter of PW-4. 5. The marriage of the first deceased was performed with the appellant in the year 1998. The marriage was consummated and the second deceased was born to them out of lawful wedlock. The husband of PW-4 who is no other than the paternal grand father of the first deceased bequeathed a portion of the house property under a will, dated 22.06.1992 with a condition that PW-3 shall enjoy the property with life interest and vested reminder to deceased No.1 (Himabindu). The said fact has been within the knowledge of the appellant since the date of marriage. After the birth of the second deceased, the appellant started harassing the first deceased to sell away the portion of the house property bequeathed to her under the Will and to bring the amount. The said fact has been informed by the deceased No.1 to her parents and other relatives, some of whom were cited as witnesses in this case. PW-2, the father of the first deceased gave an amount of Rs.20,000/- to the appellant, so that the appellant will not resort to harass the first deceased. It is said that the appellant also developed illicit intimacy with some other woman, totally neglected his wife and daughter and was subjecting the deceased No.1 to physical and mental harassment with a demand to sell the portion of the house property bequeathed to her under the Will. The appellant was also contemplating to do away with the first and second deceased in order to bring the concubine to his house. 6. On the night of 24.05.2000 the appellant killed his wife Himabindu (deceased No.1) at his house by strangulation and also killed his daughter Sarani (deceased No.2) by beating on her head. He personally carried the dead bodies in a rickshaw and threw them in the river Godavari at Seetha Rama Snana Ghattam Harizan ferry, which was witnessed by PWs.11 and 12 Chitturi Veerraju and Rachuri Suribabu respectively). On 25.05.2000 PW-1 (Ponangi Balabhaskara Murthy), Village Administrative Officer, Kovvur came to know about floating of two dead bodies and after ascertaining they were that of the wife and daughter of the appellant, lodged a report with PW-15 (AVRPB Prasad), Sub-Inspector of Police, Kovvur Town Police Station and on the strength of the said report, a case in Crime No.110 of 2000 under Section 174 of Cr.P.C. came to be registered and was investigated into. 7. PW-18 (P.Ramakrishna Murthy), Mandal Revenue Officer held inquest over the dead bodies and thereafter PW-15 altered the section of law from 174 Cr.P.C. to one under Section 304-B of IPC. Subsequently, PW-16 (K.V.Babjee), Sub-Divisional Police Officer, Narasapuram Sub-Division took up investigation. On receiving the post mortem reports of both the deceased, PW-16 added the offences punishable under Sections 302 and 498-A of IPC. On 28.05.2000 PW-16 arrested the appellant and produced him before the Court. After completing investigation, PW-17 (M.J.Prasad), Inspector of Police filed charge sheet. 8. The prosecution in order to establish the guilt of the appellant for the above mentioned charges leveled against him, examined PWs.1 to 18, marked Exs.P-1 to P-20 and M.Os.1 to 7. The appellant did not propose to examine any defence witnesses but he marked Exs.D-1 to D-10 contradictions on his behalf. 9. PWs.11 and 12 through whom the prosecution sought to prove that on 24.05.2000 at about 3.00 a.m. while they were returning to their house at Kovvur after watching a movie at Rajahmundry, noticed the appellant pulling rickshaw in which a woman was found in sitting posture and a baby was found by her side on the rickshaw seat and further the rickshaw was being taken towards Godavari river. But, these two witnesses did not support the prosecution version and they were treated hostile by the prosecution. PWs.8 and 9 who were tenants of the residential houses under the appellant, PW-10 who is the neighbour of the deceased were examined by the prosecution for the purpose of establishing the fact that the appellant was harassing the deceased with a demand of additional dowry and that he also developed extra marital relationship with another woman, did not support the prosecution version and they were also treated hostile by the prosecution. 10. PW-14 (Dr.P.Bhaskar Kumar) and Dr.Vimala (LW- 3) conducted post mortem examination over the dead bodies of the deceased Nos.1 and 2 and issued Exs.P-11 and P-14 post mortem reports and in their opinion the cause of death of deceased No.1 was due to asphyxia caused by strangulation and the death of deceased No.2 was due to shock and haemorrhage on account of fracture of all the skull bones and injury to the brain. The trial Court mainly adverting to the evidence of PWs.2 to 5, arrived at the conclusion that the prosecution could not be able to prove the charge under Section 302 of IPC against the appellant but reached a decision that the prosecution could be able to establish that the death of both the deceased were otherwise than under normal circumstances and that the deceased No.1 was subjected to cruelty by the appellant within two years of her marriage with a demand to sell the house property bequeathed to her under the Will and thereby held that the appellant was found guilty for the offence of dowry death punishable under Section 304-B of IPC and accordingly convicted him for the said offence and sentenced him to punishment as mentioned above. 11. We have heard Sri C.Padmanabha Reddy, learned Senior Counsel appearing for the appellant and the learned Public Prosecutor for the State. 12. It has been contended by the learned Senior Counsel for the appellant that there are material omissions and contradictions in the version of PWs.2 to 5 on the aspect of payment of dowry, harassment put to the deceased in connection with getting money by selling the property bequeathed to her under the Will, the trial Court while acquitting the appellant for the charge under Section 302 of IPC, erroneously convicted him for the charge under Section 304-B of IPC though the prosecution failed to establish that the deceased was subjected to cruelty soon before her death for or in connection with demand of dowry. It has also been contended that since the trial Court recorded an acquittal for the charge under Section 302 of IPC, the conviction recorded against the appellant for the charge under Section 304-B of IPC cannot be altered to one for the offence punishable under Section 302 of IPC in the absence of any appeal preferred by the State against the acquittal for the charge under Section 302 of IPC. 13. On the other hand, the learned Public Prosecutor would submit that the evidence on record is enough to convict the appellant for the charge under Section 304-B of IPC and the conviction for the said charge having rightly been recorded by the trial Court, has to be confirmed in this appeal. 14. Now the point for consideration in this appeal before us is whether the conviction and sentence passed by the learned trial Court against the appellant for the offence under Section 304-B of IPC can be sustained. 15. Indisputably, the death of the deceased No.1 was within two years of her marriage with the appellant. Further the deaths of the deceased Nos.1 and 2 occurred otherwise than under normal circumstances, which has spoken to by PW-14, the autopsy surgeon and evidenced by Exs.P-11 and P-14 post mortem reports. According to PW-14, he conducted post mortem examination over the dead body of the deceased No.1 on 26.05.2000 at 3.15 p.m. and found the following: “The body is highly putrefied, skin peeled off here and there, eyes protruded, tongue is inside the mouth, mouth opened.” On external examination, PW-14 found ligature mark present around the neck measuring 15” x 3” and on his internal examination, he also found both greater horns of hyoid bone are fractured, there was extra vessation blood into subcutaneous tissue of the neck beneath the ligature mark present, muscles of the neck are injured. He deposed that the time of death was 50 to 58 hours prior to his post mortem examination. According to PW-14, the autopsy surgeon, the cause of death of the deceased No.1 was asphyxia due to strangulation and he issued post mortem report Ex.P-11 in respect of the deceased No.1. 16. PW-14, the autopsy surgeon further deposed that on the same day he along with Dr.Vimala Devi conducted post mortem examination over the dead body of child by name Sarani, deceased No.2 and found the following: “The body is highly putrefied, skin began peeling off here and there, eyes are protruded, tongue is protruded from the mouth, face is black in colour.” On external examination, the doctor found that the middle of the head of the deceased No.2 was depressed, nasal bones were fractured and on his internal examination, he found that the skull bones of deceased No.2 were fractured, hyoid bone and all ribs are intact. He deposed that the time of death was about 50 to 58 hours prior to his post mortem examination. According to him, the cause of death of the deceased No.2 was shock and haemorrhage due to fracture of all the skull bones and injury to brain and he issued post mortem report Ex.P-14 in respect of the deceased No.2. 17. However, to sustain a conviction under Section 304- B of IPC, the prosecution has to further establish that soon before her death, the deceased No.1 was subjected to cruelty or harassment for or in connection with demand of dowry by the appellant. According to the learned Senior Counsel appearing for the appellant, there is no enough evidence on this aspect. We have perused the depositions of the witnesses and the material papers to arrive at an appropriate conclusion on this issue. It is true that there are some omissions and contradictions on this aspect in the evidence of PWs.2 to 5. 18. PW-15 who was the Sub-Inspector of Police, Kovvur Town Police Station at relevant time registered the F.I.R. as well as conducted most part of the investigation before it was taken over by PW-16, Sub-Divisional Police Officer, Narsapuram. From the evidence of PWs.1 to 5 and PW-15, the Sub-Inspector of Police, it was brought on record that PW-2 stated in his police statement that due to ill-feelings between him and his wife (PW-3), they were separated about 20 years prior to his examination in Court. PW-2 did not state before the Sub-Inspector of Police while he was examined under Section 161 Cr.P.C. that he received a phone call from a person to the effect that his daughter was serious and that he received second phone call one hour after the first call and also that the person who made the phone call stated to him that if he fails to come over to Kovvur immediately, two persons would die. PW-4 stated in her statement before the police under Section 161 Cr.P.C. that when she visited Kovvur, found the appellant and the first deceased living in cordial terms. PW-4 did not state in her police statement that at the time of marriage of deceased No.1, Himabindu, she gave an amount of Rs.60,000/- in cash and also some gold ornaments to the appellant. Further PW-5 stated before the police that at the time of marriage of deceased No.1, they gave Rs.60,000/- in cash and also gold ornaments worth Rs.15,000/- to the appellant. These are the statements which were brought on record by the defence in the cross examination of PW-15, the Sub-Inspector of Police and investigating officer. Though some other suggestions were put to the witnesses, they were not proved through the investigating officer while he gave evidence before the trial Court. However, the learned Senior Counsel for the appellant endeavoured to impress upon us that there were discrepancies in regard to payment of dowry initially and that PW-3 who is no other than the mother of deceased No.1, Himabindu, did not speak about any harassment meted out to the first deceased by the appellant to bring money by selling away the house property bequeathed to her by the father of PW-1 under a will, though she spoke about her father-in-law bequeathing house property in her name under a Will. Similarly, PW-5 though stated that the appellant killed his wife Himabindu and her child, and threw the bodies into the river, did not speak about any harassment caused to her by the appellant in connection with getting money by selling away house property under the Will and as such, the evidence relating to the appellant demanding the deceased to sell away the house property and to get him the amount is undependable. 19. But, PW-2 had categorically stated in his deposition about their giving Rs.60,000/- as dowry to the appellant, apart from 3 ½ sovereigns of gold, his father executing Will bequeathing a portion of the house property in the name of PW-3 with life interest and giving vested reminder to deceased No.1. He had also spoken to the fact of the appellant harassing the deceased stating that since her parents were separated, she was the successor of the property covered by the Will and on that score, he was demanding the first deceased to sell away the property mentioned in the Will and bring the amounts to him and also that he was in dire necessity of money. He further deposed before the trial Court that he told the appellant that so long as PW-3 is alive, first deceased will not get any right to alienate the property, if at all any amount is required, he can adjust somehow or the other and that first deceased shall not be harassed for that purpose. He also stated in his evidence before the learned trial Court that in spite of his giving an amount of Rs.20,000/- to the appellant, the appellant did not mend his behaviour. PW-4, the mother of PW-2 and the grandmother of deceased No.1 stated in her evidence that first deceased used to inform her whenever she comes to the house of PW-4 that the appellant used to beat her and used to harass her demanding money. First deceased was brought up by PW-4 and she performed the marriage of the first deceased with the appellant though PWs.2 and 3 also attended the said marriage. 20. There may be some discrepancies in the evidence of the above mentioned witnesses here and there regarding the payment of dowry as well as the appellant subjecting the deceased No.1 to cruelty with a demand to sell away the house property bequeathed to her under the Will, the evidence of the witnesses, obviously indicates that at the time of marriage some amount was given to the appellant as dowry and subsequently the appellant was treating the deceased No.1 with cruelty and was subjecting her to harassment with a demand to sell away the property under the Will and to bring the amount. The investigation in this case suffers from serious lapses which aspect will be dealt with a little later and in view of the said fact, the discrepancies or omissions pointed out by the defence are inconsequential. Further, the above mentioned witnesses suddenly arrived at the place where the dead bodies were lying after they were removed from the river Godavari and they being under deep sorrow, are not expected to give each and every detail to the police when they were examined under Section 161 Cr.P.C. there itself. 21. The term ‘dowry’ as defined in the Dowry Prohibition Act, 1961 also includes ‘valuable security’ given or agreed to be given either directly or indirectly. The explanation of the said provision lays down that the expression ‘valuable security’ has the same meaning as in Section 30 of the IPC. Section 30 of the IPC defines ‘valuable security’ as follows: “The words ‘valuable security’ denote a document which is , or purports to be, a document whereby any legal right is created, extended, transferred, restricted, extinguished or released, or whereby any person acknowledges that he lies under legal liability, or has not a certain legal right.” 22. Therefore, if the prosecution seeks to prove that the appellant was subjecting the deceased No.1 to cruelty or maltreatment with a demand to sell away the house property bequeathed to her under the Will despite the fact whether the property was agreed to be given at the time of marriage or not, comes within the definition of ‘dowry’ and virtually in the background facts of the present case, it amounts to demanding additional dowry. 23. The learned Senior Counsel appearing for the appellant would contend that, since admittedly life interest was given to PW-3 and the deceased No.1 was only entitled for the vested reminder, it cannot be expected of the appellant who is an advocate by profession to insist upon the first deceased to sell away the property during the life time of PW-3. 24. As to this, we may state that what was really labouring in the mind of the appellant would not be known. Even, if he is a legal practitioner, he need not know the legal consequences, which actually follow under the Will after the death of the deceased. Further it is also quite possible for the appellant to pressurize the first deceased to convince her mother to sell away the property and both the daughter and mother after coming to an understanding can sell away the property, more particularly to their near relatives. 25. Here, we would like to point out certain important facts, which throw much light on this aspect. While the appellant was examined under Section 313 Cr.P.C., he filed the Xerox copy of the Will, dated 22.06.1992 which indicates that 1/3rd share of tiled house was bequeathed to PW-3 with life interest and vested reminder to deceased No.1 (Himabindu). The very fact that the appellant was having a xerox copy of the Will and filed the same into the Court with a view to impress upon the Court that the first deceased had no existing right in the property clearly indicates that he was very much conscious about the property under the Will, he was keeping the Xerox copy of the Will all along and was with pre-determined mind to give an outward appearance whenever occasion comes to the effect that he did not commit any wrong since apparently from the contents of Will, deceased No.1 had no existing right to alienate the property. 26. Another crucial aspect is basing on the instructions given by the appellant to his counsel it was elicited through PW-2, the father of first deceased in the cross examination to the effect that the Will was executed by his father prior to partition, dated 16.09.1993 with Bheemadole Ramakrishna who is no other than the brother of his wife (PW-3) and that the said Ramakrishna, the brother-in-law of PW-2 is in possession and enjoyment of the house and that there were disputes between Ramakrihsna and PW-3 (the mother of first deceased) in respect of the property which is in possession of Ramakrishna. In the cross examination PW-2 admitted that Ramakrishna got issued a notice to his daughter Himabindu regarding the said property and that after the said notice, PW-2 did not make any efforts to see that PW-3 would enjoy the property given to her by his father. From the tenor of cross examination the only conclusion which can be reached is that the appellant was very much conscious about property under the Will and there was some dispute going on between PW-3 and her brother Ramakrishna in respect of the house property bequeathed under the Will. PW-3 was also cross examined to the effect that whether Ramakrishna issued any legal notice to her in respect of the said property for which PW-3 replied in the negative, besides stating that her mother-in- law (PW-4) is enjoying the house property given to PW-3 by her father-in-law. Therefore, we have no manner of doubt whatsoever regarding the fact that the prosecution by clinching evidence could be able to prove that the appellant was subjecting the deceased No.1 to cruelty in connection with a demand to sell away the property bequeathed in her favour under the Will by her paternal grand father and to give him the sale proceeds. 27. Now the question, which is pertinent remains for our consideration is whether a presumption of dowry death contemplated under Section 113-B of the Evidence Act can be drawn against the appellant that he caused the dowry death. Since we have already dealt with other aspects, the only question to be dealt with is whether such harassment caused by the appellant was soon before the death of the first deceased. 28. I n KANS RAJ v. STATE OF PUNJAB AND OTHERS[1] dealing with the expression ‘cruelty’ (soon before death), the Apex Court held as follows: “ ‘Soon before’ is a relative term which is required to be considered under specific circumstances of each case and no straight jacket formula can be laid down by fixing any time limit. This expression is pregnant with the idea of proximity test. The term ‘soon before’ is not synonymous with the term ‘immediately before’ and is opposite of the expression ‘soon after’ as used and understood in Section 114. Illustration (a) of the Evidence Act. These words would imply that the interval should not be too long between the time of making the statement and the death. It contemplates the reasonable time which, earlier noticed, has to be understood and determined under the peculiar circumstances of each case. In relation to dowry deaths, the circumstances showing the existence of cruelty or harassment to the deceased are not restricted to a particular instance but normally refer to a course of conduct. Such conduct may be spread over a period of time. If the cruelty or harassment or demand for dowry is shown to have persisted, it shall be deemed to be ‘soon before death’ if any other intervening circumstance showing the non existence of such treatment is not