IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRDESH AT HYDERABAD. Tuesday, the 28th day of December, 2010. Present: The Hon’ble Sri Justice V.Eswaraiah And Hon’ble Sri Justice P. Swaroop Reddy CRL.A.No. 93 of 2008 Between: The State of Andhra Pradesh Represented by the Public Proseuctor, High Court of A.P., Hyderabad. ..Appellant And Mohd. Ayyub and others ..Respondents VE & PSR, JJ. CRL.A.No. 93 of 2008 Judgment (Per P. Swaroop Reddy, J.) This appeal is filed by the State against the judgment of the learned II Additional Sessions Judge (FTC) Nizamabad in S.C.No. 291 of 2001. Three accused – husband, mother-in-law and sister-in- law of the deceased, Smt. Mahjabeen @ Rokhsar, are charge sheeted for the offences under sections 302 read with 34 IPC and S. 304-B read with 34IPC. For the sake of convenience, the parties herein would be referred to as they are arrayed before the trial court. 2. (a) The prosecution case is that the deceased was the third daughter of PW-1, whose marriage with A-1 was celebrated on 28.2.1998. At the time of marriage, an amount of Rs.55,000-00 was given as dowry, apart from other articles. Within five months of the marriage, all the accused started harassing the deceased for additional dowry. On account of continuous harassment by the accused for additional dowry, the deceased requested PW-1, her father to comply with the demand of the accused. PW-1 presented a gold ring to A-1; but the accused were not satisfied with the same and continued the harassment and she was necked out from the house with a direction to get an Auto-rickshaw for A-1. A Panchayat was held on 7.11.1999 at Armoor in the presence of PWs 8 and 9 and others where A-1 agreed that he will not demand additional dowry from the parents of the deceased and would not harass the deceased. Thereafter the deceased was sent to the house of the accused. (b) On 13.1.2000 the deceased was taken to the house of the accused and on the early morning of 14-1-2000, the deceased was asked to prepare black-tea (decoction) and after serving a cup of the same to A-2, the deceased went to attend calls of nature. On her return, A-3 gave her a cup of decoction saying that it is getting cold and the deceased consumed the same. All the accused conspired together and mixed rodent poison in the black tea, when the deceased went to attend calls of nature and A-3 served the same to the deceased. After consuming the black tea mixed with rodent poison, the deceased developed omitting and she became unconscious. She was immediately shifted to Government Hospital, Nizamabad; on 16.1.2000, she gained conscious and PW-15, the Head Constable recorded her statement, which is marked as Ex P- 27, on the basis of which, the case was registered and investigation was taken up. c) Initially the case was registered in Cr.No. 7 of 2000 under section 307 IPC at Rural Police Station, Nizamabad and later it was altered to one under section 302 IPC, after the death of the deceased. 3. Charges under section 302 read with 34 and S.304-B read with S.34 IPC were framed, read over and explained to the accused. The accused pleaded not guilty. 4. On behalf of the prosecution PWs-1 to PW-18 were examined and Ex P-1 to P-32 were marked, apart from Mos-1 to MO- 8. 5. Out of the witnesses examined on behalf of the prosecution – PW-1 is the father of the deceased, who spoke about the marriage of the deceased with A-1; the accused harassing the deceased for additional dowry etc.; he receiving information about the admission of the deceased in the hospital; in their presence the deceased narrating the incident of poison being administered to her by mixing in the black-tea. PW-2 is the son of PW-1, being brother of the deceased. His evidence is similar to the evidence of PW-1. PWs - 3, 4, 5 and 6, neighbours of the accused at Sarangapur village, who were supposed to speak about the accused harassing the deceased, turned hostile. PW-7 is the maternal uncle of the deceased, who arranged the marriage. He spoke about the accused having grievance about the alliance as sufficient dowry was not given. He spoke about other circumstances also. However, his evidence is not much useful to prove the prosecution case against the accused. PW-8 and 9 are the mediators in the Panchayat held at Armoor, where the accused have allegedly accepted that they would not harass and ill-treat the deceased and that A-1 executed an undertaking (Ex – P5) to that effect. PW-10 is the inquest panchayatdar. PW-11 is the photographer that took photographs of the scene of offence. His evidence is not of much relevance. PW-12 is the panch witness who spoke about the house of the accused being locked when they went along with the police PW-13 is a panch for recovery of certain material from the scene. PW-14 is the medical officer that conducted autopsy on the dead body of the deceased. His evidence is that the deceased died on account of administration of phosphate and rodenticide poisoning. He further stated that his conclusions are given on the basis chemical analysis report. PW-15 is the Head Constable, who recorded Ex P-27, statement of the deceased, on the bass of which the case was registered and as the deceased died subsequently, Ex P-27 is some what in the nature of dying declaration. PW-16 is the Mandal Revenue Officer that conducted inquest on the dead body of the deceased. According to him, during the course of investigation it came to light that poison was administered on the deceased by in- laws and husband by mixing in the cup of black-tea. This part of the statement of PW-16 may not be admissible. PW-17 and 18 are the Inspectors of Police that investigated the case. 6. On the basis of the above material the leaned trial judge held that Ex P-27 cannot be relied on, as there is doubt as to whether the deceased became conscious, at the time it was allegedly recorded on 16-1-2000; no medical officer has certified that the deceased was in sound and disposing state of mind, while recording the above statement and that no offence under section 302 read with S.34 IPC is constituted. That learned trial judge also held that there is no material to show about the deceased being harassed for the purpose of additional dowry immediately before her death. 7. The learned Public Prosecutor contends that there is sufficient material in the shape of the evidence of PWs-1 and 2, father and brother of the deceased; PWs -8 and 9 the mediators, which proves that there was harassment of the deceased for the purpose of dowry. Ex P-27 is dependable as there is corroborative evidence for the same in the shape of evidence of PWs-1 and 2 in whose presence the deceased made the above statement; that, as Ex P-27 was recorded as a statement of the deceased for the purpose of registering the case initially and as it was not recorded as a dying declaration, the steps like – certification from the medical officer was not taken and for that reason alone Ex P-27 cannot be totally discarded. There is material to show that the deceased was harassed for dowry immediately before her death and the death of the deceased has admittedly taken place within seven years of the marriage. As such the presumption under section 113-B of the Indian Evidence Act comes into play and admittedly, the deceased became victim of consumption of poison at the hands of the accused, within seven years of her marriage. There is no explanation as to how the deceased consumed poison in case the same was not administered by the accused; that only there is a belated suggestion to PWs 1 and 2 stating that as PWs 1 and 2 did not visit her, when she was in advanced stage of pregnancy, she became frustrated and committed suicide by consuming poison. 8. Now the point that arises for consideration is whether there are any grounds for allowing the appeal. 9. As far as the unnatural death of the deceased is concerned, there is absolutely no dispute whether it is suicidal or homicidal. There is no dispute that on account of consumption of poison the deceased died. It is not even the case of defense that this aspect is incorrect. 10. Coming to the aspect of S. 302 IPC, the prosecution case is that the deceased got up early in the morning; she prepared two cups of black-tea (decoction); one cup was served to A-2 and she went for attending calls of nature thereafter. By the time she returned, in pursuance of the conspiracy among A-1 to A-3, they mixed rodent poison in black-tea (decoction); A-3 gave it to the deceased, which the deceased consumed and consequently died. For this purpose, the evidence available is only the statement of the deceased - Ex P-27 and the evidence of PWs 1 and 2. It is stated in Ex P-27 that on 14.1.2000 morning the deceased prepared decoction and gave to her mother-in-law (A-2) and went for attending calls of nature. On her return, A-3 saying that the decoction is getting cold gave it to the deceased. After drinking the same, as the deceased was getting omitting, they (the accused) shifted her to the hospital after some time saying that there was no hurry. She suspects that her mother-in-law; sister-in-law and husband mixed some poison in the decoction and gave it to her. The evidence of PW-1 is that on 13.1.2000 all the accused along with the deceased went to Sarangapur, to their house. On 14.1.2000 the younger brother of A-1 telephoned to him stating that the deceased was admitted in the hospital and that she was vomitting due to the impact of poison. Immediately he proceeded to Government Hospital, Nizamabad along with his wife and son and found the deceased struggling for life. They reached the Hospital at 4.00 PM on the same day. A-1 and A-2 who were present by the side of the deceased went away from the Hospital on seeing them. The deceased gained conscious on 16.1.2000, when he enquired with the deceased, as to what has happened, the deceased told that there was a quarrel during the night of 13.1.2000 between her and the accused and next morning i.e., on 14.1.2000, A-1 directed her to prepare two cups of black-tea. The deceased prepared two cups of decoction and served one cup to A- 2; left the other cup and went for toilet. After her return from the toilet, A-3 served the remaining cup of decoction to her saying that it is getting cold. After she swallowed it, she developed severe burning sensation in the stomach and she was admitted in the Government Hospital, Nizamabad. 11. PW-2 in his evidence stated that on 16.1.2000 the deceased gained consciousness and narrated the incident of the poison being administered to her. The evidence of PW-15 is that on receiving intimation from the Government Hospital, Nizamabad regarding the admission of the deceased in the Hospital, he proceeded to the Hospital for recording her statement and recorded the statement of the deceased, which is Ex P-27. It is suggested to this witness that the deceased did not become conscious after her admission into the hospital till her death. It is the contention of the learned counsel for the respondents-accused that no medical officer is examined to say that the deceased gained conscious on 16.1.2000 after her admission into the hospital on 14.1.2000 and for that reason Ex P-27 cannot be accepted, to say that the deceased gained conscious after her admission into the hospital and Ex P-27 statement was recorded. No doubt, there is some lapse on the part of the prosecution in not examining the doctor that treated the deceased to show that the deceased gained conscious on 16.1.2000. 12. It is the contention of the learned counsel for the accused that on Ex P-27 there is no certification by any of the doctors stating that she was in a sound state of mind to make the statement. But, as contended by the learned Public Prosecutor, as it was not recorded as dying declaration, but, as a mere statement, on the basis of which, the case was registered, the precautions that were required for recording the dying declaring were not taken and for that reason the same cannot be disbelieved. It is also the contention of the accused that though the deceased was in Nizamabad Head- quarters and judicial officers were available; the police failed to get the statement of the deceased recorded by a Magistrate and non recording of the statement by the Magistrate is fatal to the prosecution’s case. This contention, perhaps, cannot be accepted, as the deceased might have become conscious for a brief period and there was no time for getting the dying declaration of the deceased recorded by a Magistrate. 13. The deceased was admitted into the Hospital on 14-1-2000 and the intimation was sent to the police on 16.1.2000, as per the evidence of PW-15. There is no explanation as to why till 16.1.2000 no intimation was sent to the police about the admission of the deceased into the Hospital, though there is a police out post there. However, in view of all these circumstances, where a doubt is created with regard to the deceased gaining consciousness on 16.1.2000, we are inclined to give the benefit to the accused with regard to Ex P-27 to be treated as a dying declaration and we are not inclined to give much reliance to the contents of Ex P-27 for the purpose of convicting the accused for the offence under section 302 IPC. 14. If Ex P-27 statement is not relied upon, the statements of PWs 1 and 2 with regard to the aspect of the statement of deceased (Ex P-27) allegedly made before them about her cause of death also cannot be safely relied upon. Thus, the accused can not be convicted for the offence under section 302 IPC. 15. Now the question is as to whether there is material to prove the case of the prosecution against the accused for the offence under section 304-B IPC. There is no dispute about the death of the deceased within seven years of the marriage. The marriage took place on 28.2.1998 and the deceased died on 17.1.2000 i.e., within two year of the marriage. There is also no dispute that she died of unnatural death in suspicious circumstances. Section 304-B IPC reads as follows: 304-B. DOWRY DEATH: (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death. Explanation: For the purpose of this sub-section “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years bur which may extend to imprisonment for life. Thus, the ingredients of the death being within seven years of the marriage and the death being suspicious are there, the other ingredients as to whether there was harassment of the deceased immediately before her death in connection with dowry has to be examined. 16. The evidence of PW-1 is that dowry of Rs.55,000-00 was given at the time of marriage and this fact is admitted by the accused in their examination under section 313 Cr.P.C. PW-1 further stated that he told the accused that he was not in a position to give additional dowry to them. But he gave half tola of gold ring and wrist watch to A-1 four months after the marriage of the deceased. Thereafter A-1 and the deceased lead life happily for one month. Once again they started harassing and ill-treating the deceased. The deceased approached him again informing that all the accused demanded her to get Auto rickahsaw for A-1 as part of additional dowry. As he could not arrange the Auto for A-1, the deceased stayed at his house for one month. During that period A-1 came to his house at Armoor along with two elders viz., Abdul Razak and Mouseen residents of Sarangapoor village and a Panchayat was held at Armoor at his house. In the said Panchayat two persons from Armoor viz., M.A.Muntaz and M.A.Qualeel also participated as elders and in their presence A-1 gave an undertaking that he would not demand Auto; that he would not ill-treat and harass the deceased for the same and that he would treat her properly. Thereafter on the assurance of the accused and elders that participated in the Panchayat, they have sent the deceased along with A-1. One month thereafter all the accused along with the deceased visited his house for one day and during that the deceased told him that A-1 was demanding for a suit for him. By that time as the deceased was in her seventh month pregnancy, he told her that he would present suit to A-1 after delivery; that in the meanwhile he would present a dress and wanted the deceased to purchase cloth for A-1. The deceased and A-1 went to the cloth shop; but returned without any dress saying that A-1 was not satisfied with the clothes available in the shop. A-1 grew wild against the deceased and she started weeping. On the same day, his wife got the deceased examined through a doctor at Armoor and on 13.1.2000, one day prior to the death of the deceased, all the accused along with the deceased went to Sarangapoor, her in-laws’ house. In the cross examination of all the witnesses suggestions are made denying all the statements by them in their chief examination, including the accused visiting the house of PW-1 three days after Ramzan festival. PW-2 also spoke about these things, suggestions were also made to PW-2 stating that what all he stated, including the visit of the accused to the house of PW-1 three days after the Ramzan is incorrect. 17. PW-17 stated that PW-1 did not state before him that he presented a wrist watch to A-1; about the accused demanding a suit and about they going to the cloth shop for purchase of dress. Thus, the above omissions are elicited from PW-17. But, it is not elicited from PW-1 stating that A-1 never visited his house three days after Ramzan. Thus the question as to whether the accused visited the house of PW-1 three days after Ramzan assumes importance, in view of the fact that after that the accused and deceased returned to their house at Sarangapoor on 13.1.2000 and the incident has taken place on the early morning of 14.1.2000. The immediate provocation would be not providing anything during the above visit to the house of PW-1. Another important aspect is that, in the cross examination of PWs 1 and 2, only after they are recalled, at a belated stage, suggestions are made stating that as the family of PW-1 did not visit the deceased, though she was in advanced stage of pregnancy, she got frustrated and committed suicide. But when on 13.1.2000, the deceased was with PW-1, there is no question of the deceased getting frustrated stating that she was not visited by her parents and committing suicide. Thus, this suicide theory is unacceptable, as already referred to; it was made at a belated stage by the accused, in the shape of suggestions to PWs 1 and 2, that, too, after they were recalled for further examination. In view of the above circumstances, the prosecution evidence that the accused and deceased visited the house of PW-1 three days after Ramzan and immediately after their return the incident has taken place, in our view cannot be disputed. 18. The evidence of PWs 8 and 9, the mediators, would show that a Panchayat was held about the accused harassing the deceased, during which time Ex P-5 was executed. However, whether Ex P-5 is believed or not, there cannot be any dispute regarding a Panchayat being held for harassing the deceased by the accused. No motive is attributed to these witnesses to give false evidence against the accused. PW-8 stated that accused visited Armoor along with two elders and that one out of the two elders is Babar Abdul Razak. In that connection PW-1 approached him (PW- 8) and requested him to act as an elder along with Mohisin (PW-9) and they participated in the Panchayat. At that time A-1 gave a written undertaking that he would not abuse or harass the deceased. PW-9 also spoke about the Panchayat. He stated that Ex P-5 was written even before he arrived. He has seen and attested Ex P-5. There is no reason to disbelieve the evidence of PWs 8 and 9 with regard to the Panchayat being held. 19. Thus, the circumstance of a panchayat being held about the accused harassing the deceased supports the prosecution case that there was harassment of the deceased by the accused and the evidence of PWs 1 and 2 that there was a demand in connection with dowry, Autorickshaw and suit etc. 20. The learned counsel for the accused contends that making demand for house hold articles would not amount to demand for dowry and in support of his contention he relied on a decision of the Hon’ble Supreme Court in Durga Prasad v. State of Madhya Pradesh[1]. The circumstances in the above case are not applicable to the facts of the case on hand. However, in that case also the evidence was that of mother and brother of the victim and no other evidence was there. In the present case also there is the evidence of father and brother of the deceased. But, in the present case, there are other circumstances like a Panchayat being held prior to the death of the deceased and the suggestion with regard to the theory of suicide on account of the parents of the deceased not visiting her, when she was in advanced stage of pregnancy is fund to be not acceptable. 20. In paragraph-23 of the Judgment, the learned trial Judge observed that “merely because the deceased died within seven years from the date of marriage, it cannot be said that the presumption is available under section 114 of the Evidence Act, the prosecution has to establish the ingredients of Section 304-B IPC. This view is supported by the decision reported in Dayyala Bikshapathi v. The State[2]. 21. The learned trial Judge had overlooked the evidence of Panch witnesses PWs 8 and 9, who stated that there was a Panchayat and the allegation is of the accused demanding an auto rickshaw as additional dowry, for which purpose she was earlier sent away from the house of the accused. May be there are minor contradictions and omissions in the evidence of the witnesses; but we are satisfied, in the circumstances of the case, where the deceased died immediately on account of poisoning after return from the parental home, along with the accused and the theory of suicide is not found to be acceptable. However, even if it is a case of suicide also, as there is demand for additional dowry, we hold that the provisions of S. 114-B Evidence Act are attracted and the accused are definitely liable for an offence under section 304-B IPC. 22. Now the question is whether the all accused are liable for the offence under section 304-B IPC. As A-3 is a