IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE ELEVENTH DAY OF FEBRUARY TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU CRIMINAL APPEAL No.499 of 2003 Between: Geda Venu, S/o. Ramakrishna ..... APPELLANT AND The State of Andhra Pradesh, Represented by its Public Prosecutor, High Court of A.P., Hyderabad ....RESPONDENT The Court made the following: THE HON’BLE SRI JUSTICE K.C. BHANU CRIMINAL APPEAL No.499 OF 2003 JUDGMENT: This Criminal Appeal, under section 374(2) of the Code of Criminal Procedure, 1973 (for short, "Cr.P.C."), is directed against the judgment, dated 15.11.2002, in S.C.No.494 of 2001 on the file of IV Additional Metropolitan Sessions Judge, Hyderabad, whereunder and whereby, the sole accused was found guilty of the offence punishable under Section 304B of the Indian Penal Code, 1860 (for short, “I.P.C.”) and sentenced to undergo simple imprisonment for seven years and to pay fine of Rs.1,000/-, in default to undergo simple imprisonment for six months. 2. The brief facts that are necessary for disposal of the prosecution case may be stated as follows: The accused is none other than the husband of the Jyothi (hereinafter referred to as the deceased). Their marriage was performed in accordance with customs in the month of August, 1995. At the time of marriage, an amount of Rs.80,000/- was given to the father of the accused towards dowry. Out of the said amount, an amount of Rs.73,000/- was jointly deposited in the name of the accused and the deceased in the post office savings bank for a period of five years. For about three months both the accused and the deceased lived happily. Thereafter, it is alleged that the accused started harassing the deceased to get additional dowry of Rs.50,000/-. She informed the same to her mother (PW.3) telephonically. Then the husband of PW.3 along with one Shiva went to the house of the accused and paid Rs.10,000/- as part of the additional dowry demand. Then the accused stated to them that he would look after his wife properly. Immediately after marriage the accused was transferred to Nellore. Thereafter, again he was transferred to Hyderabad. But, there was no change in the attitude of the accused with regard to harassment on the deceased. A panchayat was convened and in the panchayat, the accused promised to the elders that he would look after his wife properly. On 19.08.1998 at about 04:00 AM, the accused went and informed PW.1, who is the owner of the house, that his wife fell unconscious. He rushed to the house of the accused and found deceased lying on the bed. He found a ligature mark on the neck of the deceased. Then he proceeded to the house of PW.2, who is the distant relative of the deceased. PW.1 informed about the same to PW.2. PW.1 lodged Ex.P-1, complaint. Thereafter, PW.9 registered a case under Section 174 Cr.P.C. The investigating officer visited the scene of occurrence and observed the scene of occurrence in the presence of PW.8 and others and prepared EX.P-4, scene of observation panchanama and Ex.P-5, rough sketch. He got the photographs taken on the dead body. On the same day, he sent the dead body to the hospital and gave a requisition to PW.6 to conduct inquest on the dead body. PW.6 accordingly conducted inquest and on the same day the investigating officer examined the witnesses and altered the section of law from 174 Cr.P.C. to 304B I.P.C. and on 25.08.1998 he arrested the accused. After completion of investigation, Assistant Commissioner of Police, Panjagutta filed the charge sheet. 3. The trial Court framed the following charge against the accused: “That your wife by name Smt. Jyothi on the intervening night of 18/19th day of August, 1998 committed suicide at H.No.8-2-293/82/B-89, Gayathri Hills, Yousufguda, Hyderabad, by hanging herself due to the harassment caused by you for an additional dowry of Rs.50,000/- from her parents and also unable to bare the sadist nature and torture her both mentally and physically, you caused her death, and thereby you committed an offence punishable under Section 304B I.P.C. and within my cognizance; And I hereby direct that you be tried on the said charge.” 4. When the above charge was read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried. 5. To substantiate the charge, the prosecution examined PWs.1 to 10 and got marked Exs.P-1 to P-10 besides case property M.O.1. 6. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses. He denied the same and reported no evidence either oral or documentary. 7. The trial Court accepting the case of the prosecution, found the accused guilty of the offence punishable under Section 304B I.P.C. and accordingly convicted and sentenced him as stated above. Challenging the same, the present Criminal Appeal has been filed. 8. Now the point for determination is whether the prosecution proved its case against the accused of the offence punishable under Section 304B I.P.C beyond all reasonable doubt and whether the judgment of the trial Court is correct, legal and proper? 9. The learned counsel appearing for the appellant contended that the alleged demand of Rs.50,000/- is made three months after the marriage, that therefore, the demand of additional dowry cannot be shown to be made soon before her heath and that the father of the deceased is the best person to speak about the alleged demand of dowry, if any, made, but, the prosecution though cited him as a witness, he was not examined, that therefore, an adverse inference has to be drawn for his non- examination and there is no evidence to show that the deceased was subjected to cruelty or harassment, that there is no case of cruelty or harassment for demand of additional dowry soon before her death and therefore, the necessary ingredients of 304B I.P.C. have not been made out; that the evidence of PWs.3 and 4 is nothing but imagination with regard to causing of injuries with lighted cigarette on the body of the deceased; and that the harassment or cruelty is not shown to be for or in connection with the demand of dowry and therefore, he prays to set aside the conviction and sentence recorded against the accused. 10. On the other hand, the learned counsel representing the learned Public Prosecutor contended that though the evidence did not show that the deceased was subjected to cruelty or harassment for or in connection with demand of dowry soon before her death, but still the acts of the accused facilitated the deceased to commit suicide and it is a case where the accused has intentionally aided the deceased to commit suicide, that for causing injuries to the deceased a panchayat was held and the injuries were shown to the elders; and that once the prosecution established its case for the offence punishable under Section 306 I.P.C, the burden shifts to the accused to rebut the same under Section 113A of the Indian Evidence Act, 1872 (for short, “the Act”); that the accused has not rebutted that presumption, that therefore, the presumption that the accused abetted the deceased to commit suicide can be drawn and therefore, she prays to dismiss the criminal appeal. 11. There cannot be any dispute that the initial burden is on the prosecution to establish that the deceased was subjected to cruelty or harassment for or in connection with demand of dowry soon before her death. After discharging the said burden by the prosecution, it shifts to the accused under Section 113B of the Act. The necessary ingredients for the offence punishable under Section 304B I.P.C. are as follows: “Firstly: The death of a woman should be caused by any burns or bodily injury otherwise than under normal circumstances; Secondly: Such death should have occurred within seven years of her marriage; Thirdly: She must have been subjected to cruelty or harassment by her husband or any relative of her husband soon before her death; Fourthly: Such cruelty or harassment should be for or in connection with demand of dowry” 12. It is not in dispute that the marriage of the deceased was performed with the accused in the month of August, 1995. It is also not in dispute that the deceased committed suicide on the night of 19.08.1998. The Mandal Revenue Officer - PW.6 held inquest on the dead body of the deceased upon receipt of requisition from the police in the presence of PW.7 and issued Ex.P-3, inquest report. The inquest mediators opined that the deceased died as a result of hanging. After inquest, the dead body of the deceased was subjected to post-mortem examination. 13. PW.5 is the doctor who conducted autopsy on the dead body of the deceased, on 20.08.1998, and found the following injuries: “1) Ante mortem ligature mark of 25 x 2 cms placed over upper half of the neck above thyroid cartilage upgoing over sides of neck starting from below right angular and ending over left side of the back of neck with a bare area over right side of back of neck. Ligature mark is brown in colour, prachment like prominent over left side of neck margins separated. The ligature mark passing through points on right side of the neck 3.5 cms from right mastoid 2.5 cm from tip right ear 2 cms from right angle of mandible. 5 cms chin in front of neck, on left side of neck 4 cms from left angle of mandible, 5 cms from tip of left ear, 6 cms from left mastoid. Tissues underlying ligature mark are contused. Thyroid and hyoid intact. 2) Teeth bite marks spread over an area of 5 x 4 cms on outer side of middle of right thigh, bluish green in colour with teeth bite impressions (5 to 7 days old). 3) A burn injury healed superficial spread over an area of 6 x 4 cms over middle of right fore arm on inner side on upper half (about 2 weeks old). 4) An irregular scar of burn injury spread over an area of 8 x 5 cms on inner side of middle of right thigh (the injury is aged about one month). 5) Scars of burns (branding) 3 in number placed one below the other, horizontally 6 cms above umblicus the upper one measuring 4 x 1/2 cms the lower two merging with each other - measuring 6 x 1 cms.” He opined that the deceased died due to hanging. He issued Ex.P-2 – Post-mortem Certificate. Practically, the evidence of PW.5 and the recitals in Ex.P-2 remained unchallenged. Therefore, the death of the deceased was due to suicidal hanging, which was occurred otherwise than under normal circumstances. Therefore, the prosecution established its case with regard to the first two ingredients of the offence punishable under Section 304B I.P.C. 14. Coming to the next two ingredients of the offence punishable under Section 304B I.P.C., the evidence of PW.3 is relevant. She stated that at the time of marriage, they gave Rs.80,000/- towards dowry besides gold ornaments and scooter apart from household articles. Out of Rs.80,000/- an amount of Rs.73,000/- was kept in the post office savings bank, jointly in the name of the accused and the deceased. Within three months after the marriage, the deceased telephoned to PW.3 and informed that her husband was demanding Rs.50,000/- towards additional dowry and was harassing her. Therefore, the husband of PW.3 and PW.4 went to the house of the accused and paid Rs.10,000/- towards part of the additional dowry demanded. This was happened three months after the marriage. The deceased died on 19.08.1998. Therefore, the alleged demand of Rs.50,000/- made in the year 1995 cannot be stretched to the year 1998 to infer that the deceased committed suicide because of the demand made by the accused in the year 1995. Except that statement, there is no other evidence to show that the deceased was subjected to cruelty or harassment for or in connection with demand of dowry. 15. PW.4, who is distantly related to the deceased came to know about the demand of Rs.50,000/- through the husband of PW.3. The husband of PW.3 is not examined to speak that he informed the same to PW.4. Therefore, whatever PW.4 testified with regard to the demand of additional dowry is hit by hear say evidence. Therefore, the evidence of PW.4 with regard to the fact that he came to know about the demand made by the accused through the father of the deceased, cannot be accepted. 16. Except the baring statement of PW.3, there is no other evidence to show that the deceased was subjected to harassment for or in connection with the demand of dowry three months after the marriage. There is no other evidence to show that the deceased committed suicide in the month of August, 1998, as she was unable to bear the harassment or cruelty for or in connection with demand of dowry. Therefore, the ingredients of Section 304B I.P.C. have not been attracted. 17. Now, it has to be seen whether it is the case where the accused committed an offence punishable under Section 306 I.P.C. For the offence punishable under Section 306 I.P.C., there must be abetment to the deceased to commit suicide. The word abetment is defined under Section 107 I.P.C., which is as follows: “Firstly – Instigates any person to do that thing; or Secondly – Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly – Intentionally aids, by any act or illegal omission, the doing of that thing.” 18. The first two ingredients of Section 107 I.P.C. have not been attracted because there is no evidence to show that the accused has made a conspiracy with an intention to eliminate the deceased. Similarly, there is no instigation by the accused to the deceased to commit suicide. Now, it is to be seen whether the case of the accused falls under the third ingredient or not i.e., intentional aiding. The explanation 2 of Section 107 I.P.C. says thus: “Explanation 2 – Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby, facilitate the commission thereof, is said to aid the doing of that act.” If the same is established, then the presumption under Section 113A of the Act would come into picture. Under the said provision, the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. The cruelty as mentioned under Section 113A of the Act shall have the same meaning to the explanation appended to Section 498A I.P.C. The explanation reads thus: Cruelty means: “(a) any willful 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) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.” 19. There is evidence on record, which would go to show that about four or five months prior to the death of the deceased, a panchayat was held with regard to the conduct of the accused. In that panchayat, the accused promised to look after his wife properly and would not harass her. PW.2 was informed by the deceased that the accused used to pinch her and burn with cigarette butts. He admitted that he was not present in the panchayat held at Tanuku. 20. The evidence of PW.3, who is none other than the mother of the deceased, would go to show that the accused was torturing the deceased by burning with cigarettes. 21. PW.4 also stated that when the deceased informed them that the accused was still harassing her by drinking and burning her with cigarettes, a panchayat was held in the house of Seetharam and he also attended the said Panchayat. The accused was also called to the panchayat. In the panchayat, the deceased complained against her husband and shown the injuries to the elders and fifteen days thereafter, he received a call from his sister that deceased died. So, it is clear from the evidence on record that the deceased was subjected to cruelty prior to her death. If really, the deceased was not subjected to cruelty like causing burn injuries with cigarette butts, PW.5, the doctor, who conducted post-mortem examination would not have noticed the burn scars on the body of the deceased. PW.5 found scars of burns three in number and found some irregular scar of burn injury on the middle of the right thigh, aged about one month; a burn injury healed superficial on the right fore arm, aged about two weeks and teeth bite marks, aged about 5 to 7 days old, on the middle of right thigh. These injuries are shown to be caused one month prior to the post-mortem examination. Therefore, these injuries coupled with the evidence of PW.2 to 4 would clearly to go show that the deceased was subjected to cruelty prior to her death. The possibility of deceased committing suicide because of the acts of the accused cannot be ruled out. Therefore, the prosecution has succeeded in establishing the case of the offence punishable under Section 306 I.P.C. Once the prosecution case for the offence under Section 306 I.P.C. is proved, the burden shifts to the accused under Section 113A of the Act. Of course, it is a rebuttable presumption and the accused can rebut it by adducing necessary evidence or he can elicit the same in the cross- examination of prosecution witnesses. There is absolutely no rebuttal evidence to show that the deceased committed suicide for some other reason, but not for his abetment to deceased. 22. Though it is suggested that because of abdominal pain during the periods, she committed suicide. But, the evidence of PW.3 is very clear that the deceased never complained of the abdominal pain at any time. There was no scope or possibility for the deceased to commit suicide for any other reason, as there is no material on record to infer the same except for the cruelty meted out to the deceased. Even, the doctor has eliminated the possibility of committing suicide because of abdominal pain during menstruation period. Therefore, the presumption under Section 113A of the Act has to be drawn. If it is drawn, the presumption is that the deceased because of abetment made by the accused committed suicide. Therefore, the accused can be convicted under Section 306 I.P.C. Since the conviction for the offence punishable under Section 306 I.P.C. is minor when compared to the conviction for the offence punishable under Section 304B I.P.C., it will not cause any prejudice to the accused in his defence. 23. Accordingly, Criminal Appeal is partly allowed setting aside the conviction and sentence recorded by the IV Additional Metropolitan Sessions Judge, Hyderabad, vide Judgment dated 15.11.2002, in S.C.No.494 of 2001, against the appellant/accused of the charge under Section 304B I.P.C. However, the appellant/accused is found guilty of the offence punishable under Section 306 I.P.C. and accordingly, he is convicted and sentenced to undergo simple imprisonment for two years and also to pay a fine of Rs.1,000/-, in default to undergo simple imprisonment for one month. Period of remand, if any, undergone by the appellant/accused during the course of investigation, trial and after conviction shall be given set off under Section 428 Cr.P.C. _______________ K.C. BHANU, J 11.02.2010 MD