THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD CRIMINAL APPEAL No.339 of 2005 JUDGMENT: The 1st accused in Sessions Case No.478 of 2003, on the file of the Court of I Additional Sessions Judge, Karimnagar, filed this appeal against the conviction and sentence imposed on him by the judgment, dated 30.11.2004, for the offences punishable under Sections 304-B and 498-A of the Indian Penal Code (for short “IPC”) and Section 4 of the Dowry Prohibition Act. 2. The appellant and four others were prosecuted through the charge sheet filed by the Sub-Divisional Police Officer, Godavarikhani in Crime No.80 of 2003 of Kamanpur Police Station alleging that Shabana (Anjum), the deceased and the first accused were married in October, 2002, at which time, the parents of the girl Meherajunnisa and Mohd.Budran Sharief presented cash of Rs.30,000/-, five tulas of gold, a motor cycle, furniture and utensils towards dowry. Still, the husband/first accused, his mother/the second accused, the first accused’s brother/ the third accused, the wife of the first accused’s brother/the 4th accused and the sister of the first accused/ the 5th accused were harassing Shabana mentally and physically for additional dowry. The parents of the girl paid Rs.5,000/- and Rs.10,000/- on two occasions, but still the accused did not change their attitude. On 7.5.2003 Shabana talked to her mother on telephone about the harassment and requested for getting Rs.50,000/- as additional dowry. When the mother replied that they cannot give such a huge amount, the first accused took the telephone and saying that it was OK, put down the telephone. At about 11 PM, a known person telephoned to the mother of Shabana informing that Shabana was in a serious condition. When Mohd.Budran Sharief and other family members went to Centenary colony at about 2.00 A.M. they found Shabana lying dead in the house of her parents-in-law. There was an abrasion around the neck of the deceased and the deceased was four months pregnant, at the time of death. On the report of Mohd.Budran Sharief, the crime was registered and the scene of offence and the dead body were photographed. The Investigating Officer conducted inquest and also prepared a scene of offence panchnama before mediators. On the confession of the first accused, the iron binding wire said to have been used in the commission of offence was seized under panchnama. The first accused strangulated the deceased with that wire on the instigation of accused 2 to 5, in the kitchen room, on the night of 7.5.2003 and nothing at the scene of offence probablised the possibility of the deceased hanging herself from the high ceiling. Hence the charge sheet against accused 2 to 5 for an offence under Section 304-B of the IPC and against the first accused for an offence punishable under Sections 302 and 304-B of the IPC. 3. The Magistrate after furnishing the copies of the documents to the accused, on their appearance before him, committed the case to the Court of Session and it framed the charges under Sections 498 A and 304-B of the IPC and Section 4 of the Dowry Prohibition Act against accused 1 to 5 and a charge under Section 302 of the IPC against the first accused for which the accused 1 to 5 pleaded not guilty. After examining PWs 1 to 17 and marking Exs.P.1 to P.9 and Mos 1 to 3, the accused were examined under Section 313 of the Code of Criminal Procedure (for short “Cr.P.C.), when they denied the incriminating circumstances appearing in the evidence against them. The accused produced no defence evidence. 4. The trial Court rendered the impugned judgment firstly considering that the offence under Section 302 of the IPC was not proved against the first accused beyond reasonable doubt, as there was no other evidence except the strong suspicion of PWs.1 to 4. The trial Court also noted that the evidence of PWs 6 to 8 showed that the first accused was not inside the house at the time of death of Shabana and even the medical evidence could not establish the death to be not due to hanging but due to strangulation. As no opinion could be arrived at even by the Mandal Revenue Officer, PW.14 who conducted the inquest regarding the nature of death of the deceased, the trial Court gave the benefit of doubt to the first accused in this regard. 5. The trial Court proceeded to consider the evidence concerning the harassment of the deceased for additional dowry and opined that the evidence of PW.1 clearly disclosed cruelty contemplated under Section 498- A of the IPC, due to harassment to coerce the deceased and her parents to meet an unlawful demand for property. The trial Court also referred to the evidence of PWs 2 to 5, who corroborated the direct evidence of PW.1 on this aspect. 6. The trial Court proceeded further to consider the evidence about the alleged offence under Section 304-B of the IPC and firstly noted that the death of Shabana was within seven years of her marriage. Secondly, the trial Court noted that the evidence of PWs 1 to 3 was cogent concerning the demand made by the first accused for Rs.50,000/-, even assuming that the absence of list of articles and dowry paid at the time of marriage makes the alleged payment of dowry at the time of marriage, open to doubt. Opining that the demand by the first accused satisfied the definition of ‘dowry’ under Section 2 of the Dowry Prohibition Act, 1961, the trial Court also considered the demand to be soon before the death and that the accused failed to rebut the statutory presumption under Section 113-B of the Indian Evidence Act. While the separate residence of the deceased and the first accused from the other accused was considered to give the benefit of reasonable doubt to accused 2 to 5 as the allegation of the demand for dowry was confined to the first accused and as there was no reason for PWs 1 to 5 to speak falsehood, the trial Court brushed aside the precedents relied on by the defence counsel and concluded that the first accused harassed the deceased soon before her death, notwithstanding the failure of the Investigating Officer to investigate into the alleged phone calls. 7. The trial Court accordingly concluded that the accused 2 to 5 are found to be not guilty of the offence with which they were charged and the first accused was found to be not guilty of the offence punishable under Section 302 of the IPC. However, it convicted the first accused for the offence punishable under Sections 498-A and 304-B of the IPC and Section 4 of the Dowry Prohibition Act, for which he was found guilty and declined to take a lenient view in spite of the plea of the accused when examined regarding the question of sentence. Consequently, it sentenced the first accused to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,000/- with a default sentence of two months for the offence punishable under Section 498-A of the IPC, rigorous imprisonment for seven years for the offence punishable under Section 304-B of the IPC and rigorous imprisonment for six months and the fine of Rs.1,000/- with a default sentence of two months for the offence punishable under Section 4 of the Dowry Prohibition Act with the benefit of set off under Section 428 of the Cr.P.C. 8. The first accused challenged his conviction and sentence in this appeal contending that in spite of the absence of evidence beyond reasonable doubt, the trial Court convicted the first accused for the offence punishable under Section 304-B of the IPC. He contended that the deceased was quarrelsome and was living separately from the parents-in-law. He also contended that the independent mediators for the alleged confession and recovery of iron wire turned hostile and he was having sufficient means to earn his livelihood from his properties and his occupation as a driver not requiring to make any demand from the parents-in-law. The neighbours or independent witnesses were not examined and the evidence of PWs 1 to 5 with many improvements should have been disbelieved. Hence, the first accused desired his conviction and sentence of imprisonment to be reversed. 9. Smt K.V.Rajashree, learned counsel representing Sri S.Satyam Reddy, learned counsel for the appellant and Sri K.Venkateswara Rao, learned counsel representing the learned Public Prosecutor are heard at length. 10. The acquittal of accused 2 to 5 for the offences punishable under Sections 498 A and 304-B of the IPC and Section 4 of the Dowry Prohibition Act remained unchallenged and had become final. The acquittal of the first accused for the offence punishable under Section 302 of the IPC also had become final having remained unchallenged. 11. The consideration herein, is therefore, confined to the guilt of the first accused for the offences punishable under Sections 498 A and 304-B of the IPC and Section 4 of the Dowry Prohibition Act and the question is whether the prosecution had proved the guilt of the first accused for such offences beyond all reasonable doubt? 12. Ex.P.1 report from PW.1 to the police was the earliest version and while reiterating that cash of Rs.30,000/-, 5 tulas of gold, a motor cycle, furniture and household articles worth Rs.1,00,000/- were given at the time of the marriage, PW.1 stated that still Shabana, her daughter, was physically and mentally harassed with demands for additional dowry, making her pay Rs.5,000/- and Rs.10,000/- respectively after the marriage. PW.1 claimed in Ex.P.1 that on the evening of 07.5.2003, Shabana telephoned from Centenary colony complaining about harassment for another Rs.50,000/-, on which, she expressed her inability to pay the same. She claimed that the first accused took the phone from Shabana and put it down, after which at about 11 P.M. she received another phone call about the serious condition of Shabana. PW.1 further claimed in Ex.P.1 about finding the dead body of the deceased Shabana when they went there by 2 A.M. and finding strangulation marks on the neck. She suspected that Shabana might have been killed by the accused and she did not know whether she committed suicide due to the harassment. Thus, Ex.P.1 showed the allegation of PW.1 at the earliest point of time about the demands for additional dowry including through a phone call on 07.5.2003. But, in so far as the nature of death of Shabana is concerned, her apprehensions were only based on suspicion. Ex.P.4 inquest report before independent mediators also described the death to be suspicious and could have been due to hanging by the deceased herself or by others. 13. PWs. 1 to 6 and 9 were the witnesses for the inquest report and the inquest report only noted about the strangulation marks around the neck and noted the deceased to have been found hanging and to have been declared dead when she was brought to the hospital. The inquest report did not specifically state about the phone call from the deceased being just before her death. The post-mortem examination of the dead body showed, as seen from Ex.P.9, that the ante-mortem injuries found on the dead body were only around the neck and the death was opined to be due to asphyxia due to strangulation. Thus, the post-mortem report also did not provide any positive indication as to whether the death could have been due to strangulation by others or due to hanging by the deceased herself. PW.1, the mother of the deceased, while reiterating her claims, stated about the first accused himself demanding for Rs.50,000/- during the phone call on the date of death of Shabana contrary to Ex.P.1 about Shabana conveying such demand of the accused to her through phone. While admitting that it was only her strong suspicion against all the accused concerning the death of the deceased, PW.1 also admitted that usually a list of articles given will be prepared at the time of the marriage. While no such list was forthcoming, her claims about a quarrel at the time of marriage itself about the articles was not the claim in Ex.P.1 and PW.1 also admitted not to have informed the Masjid Committee about the demand from the first accused. The information about the death of the deceased was admitted by PW.1 to have been given at the instance of the accused. 14. PW.2 the father of the deceased stated about the deceased informing that they needed no help from him to set up a separate family, when she and the first accused came to their house. PW.2 also stated about the list of articles being prepared at the time of the marriage, which was not placed before the Court and admitted not informing elders of the Masjid committee about the demand by the first accused. PW.2 did not state anything about the phone call on the date of death of the deceased though he stated about the deceased informing PW.1 on phone about the demand by the first accused and at any rate, he did not state about the first accused also speaking to PW.1 on phone at that time. While admitting that the deceased and first accused were visiting them now and then, PW.2 did not remember when was the last visit. 15. PW.3 the elder brother of the deceased tried to claim that the first accused was demanding Rs.30,000/-, which he could not pay. But, he stated that they received a phone call from the deceased and the first accused informing that they were alright, at which time also, the amount was demanded by the first accused. PW.3 also had only suspicion against the accused regarding the cause of death and his admission that he and his parents lived together and that he had no phone, may make the alleged telephone calls on the date of death of Shabana doubtful and PW.3 tried to claim that the deceased was making phone calls to the house of the neighbour Dusa Shankar and even her death was also informed through that phone. PWs 1 and 2 did not state about the same and the said Dusa Shankar or any member of his family were not examined during investigation or trial. PW.3 also admitted about not informing the elders of the Masjid Committee and about preparing a list of articles presented at the time of the marriage. 16. Apart from the evidence of PWs 1 to 3, the immediate family members, PW.4 stated about the deceased and the first accused living separately since after six months after the marriage. He also only suspected the first accused and PWs 2 to 4 did not speak about any quarrel raised by the first accused at the time of marriage about the articles presented as claimed by PW.1. 17. PW.4 also admitted not informing the elders of the Masjid Committee and also preparing the list of articles presented at the time of the marriage. 18 PW.5 the Junior Paternal Uncle of the deceased also spoke similarly. PW.5 also referred to the phone call from the deceased on the date of her death PW.5 also only suspected the first accused and he admitted that PW.1 did not have any telephone connection at all. PW.5 never attempted to mediate in the disputes or pacify the accused. 19. PW.6, who was the landlord of the house where the deceased died, was unaware of the cause of her death and did not know whether there were any disputes between the first accused and the deceased. He was informed by his son about the incident and he found the first accused holding the deceased in his arms and weeping. 20. P.W.7 is the wife of PW.6, who was also unaware of the cause of death and PW.8 is the son of PWs 6 and 7, who denied being examined by the police or stating them as in Ex.P.2. 21. The evidence of PW.9 was about the photographs taken by him, Ex.P.3 and PW.10 was the inquest mediator, who claimed to have opined that the death was not a case of suicide as it was not possible to reach the height of the ceiling. 22. PW.11 was an attestor to Ex.P.5 crime details form under which MO.1 bangle pieces and MO.2 hair pin were seized. 23. PWs 12 and 13, while admitting their signatures Exs.P.6 and P.7, denied any confession by A1 for recovery of one iron wire of 47 inches at the instance of the first accused in their presence 24. PW.14 is the Mandal Revenue Officer, who conducted the inquest and he was specific that they could not come to any opinion whether the deceased committed suicide or whether she was killed. 25. PW.15 the Sub-Inspector speaks about the registration of first information report Ex.P.8. 26. PW.16, the Medical Officer, who conducted the post-mortem over the dead body, opined the cause of death to be asphyxia due to strangulation, but could not distinguish between strangulation and hanging. 27. PW.17 is the Investigating Officer, who claimed that he did not collect the list of articles presented at the time of marriage and he admitted that he did not probe into the details of the telephone call or STD booth from where the deceased called. He also stated that he did not enquire about the availability of a phone at the house of PW.1. 28. On this evidence, it is clear that the marriage between Shabana and the first accused is not in dispute and the death of Shabana was an unnatural death, which death could have been either due to strangulation or due to hanging. The death was within seven years of the marriage and the evidence of PWs 1 to 5 was not suggested or shown to be motivated by any ulterior reason. Though they might be aggrieved by the unnatural death of Shabana, not even a remote cause was shown to suspect that they could have resorted to any falsity in their claims. Though the possibility of some exaggeration may not be unnatural, the presentation of articles at the time of marriage, notwithstanding the absence of the list, is a natural event in such Muslim marriages and PWs 1 to 5 consistently spoke about the second payment of Rs.10,000/- and Rs.5,000/- on demands. They also alleged about the subsequent demand for more money after the deceased and the first accused started living separately. 29. The offence under Section 304-B of the IPC will be constituted only when the cruelty or harassment for or in connection with any demand for dowry was “soon before her death” and the statutory presumption under Section 113-B of the Evidence Act, is also available only when the cruelty or harassment for or in connection with any demand for dowry was “soon before the death of the woman”. In the present case, though there was consistent evidence about the demands for additional dowry after the marriage, such demands being soon before the death of Shabana were attempted to be linked only through the alleged telephone call by the deceased and the first accused on the date of death of Shabana. However, when PWs 1 to 3 had no telephone in their own residence and when the alleged telephone calls were coming to the house of the neighbour, the silence of PWs 1 and 2 on that aspect may create a doubt. The doubt becomes stronger in view of the total absence of any investigation by the Investigating officer for confirming the receipt of such telephone call by PW.1 on that date. The silence of PW.2 about the date on which the telephone call had come and the contradiction between PWs 1 to 3 as to whether it was the deceased or her husband who informed about such demand and the non-examination of Dusa Shankar, the neighbour or any member of his family etc., may make the claims of PWs 1 to 5 in this regard not open to straight acceptance and if the alleged phone calls on the date of death were to be suspected, there cannot be said to be any positive act of cruelty or harassment soon before the death of Shabana. Though the first accused was claimed to be demanding more monies towards additional dowry, the first accused and Shabana separated from the parents of the first accused and started living separately with no serious incidents of cruelty or harassment having been alleged during that period and in the circumstances, though the first accused seemed to be demanding further monies, there was no proof of cruelty or harassment for such additional amounts soon before the death of the deceased either to raise the presumption under Section 113 B of the Evidence Act or to believe in an offence under Section 304-B of the IPC. Though the death of Shabana was unnatural and not in normal circumstances and though it was within seven years of her marriage and though there were demands for additional dowry, in the absence of proof of Shabana being subjected to cruelty or harassment for or in connection with such demand soon before her death, the offence under Section 304-B of the IPC cannot be considered to have been made out and the first accused cannot be presumed to have caused a dowry death by taking the aid of Section 113-B of the Evidence Act. 30. While the alleged offence under Section 304-B of the IPC against the first accused has to be, hence, considered not proved beyond reasonable doubt, no such doubt exists in respect of the alleged offence punishable under Section 498 A of the IPC or under Section 4 of the Dowry Prohibition Act. As already stated, the evidence of PWs 1 to 5 in this regard was consistent right from the earliest version Ex.P.1 and the conclusions of the trial Court in this regard do not appear to be vitiated for any reason. The offence under Section 498 A of the IPC is made out on proof of harassment with a view to coerce the parents of the deceased to meet the unlawful demands for additional dowry and the presumption under Section 113-A of the Evidence Act also is available against the first accused as in the absence of proof of the death of Shabana being homicide, it could have been only suicide and the suicide within seven years of her marriage after being subjected to the demands by the first accused for additional dowry can even be presumed to have been abetted by the first accused but of course the first accused was not prosecuted for the offence under Section 306 of the IPC. The demand for additional dowry by the first accused undoubtedly comes under Section 4 of the Dowry Prohibition Act. Therefore, the conviction of the first accused for the said two offences has to be upheld in the light of proof of such offence beyond reasonable doubt. 31. The sentences imposed by the trial Court for the said two offences are reasonable and can be sustained, while reversing the finding of the trial Court in respect of the offence punishable under Section 304-B of the IPC for the reasons already stated. 32. In the result, the conviction and sentence imposed on the first accused for the offence punishable under Section 304-B of the IPC in Sessions Case No.478 of 2003 on the file of the I Additional Sessions Judge at Karimnagar by the judgment dated 30.11.2004 are set aside and the first accused is acquitted of the offence punishable under Section 304-B of the IPC having been found not guilty of the said offence. However, the conviction and sentence of the first accused for the offences punishable under Sections 498 A of the IPC and Section 4 of the Dowry Prohibition Act are confirmed. 33. The Criminal Appeal is ordered accordingly. ____________________ G.BHAVANI PRASAD,J 11th November, 2009 PNV