THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD CRIMINAL APPEAL No.977 OF 2005 Dated:10.11.2009 Between: Giridharlal Parwai .. Appellant And The State of Andhra Pradesh, rep., by its Public Prosecutor, High Court of Andhra Pradesh, Hyderabad .. Respondent JUDGMENT: The first accused in S.C.No.660 of 2004 on the file of the IV Additional Metropolitan Sessions Judge, Hyderabad, who was convicted for an offence punishable under Section 304-B of the Indian Penal Code and consequently sentenced to undergo Rigorous Imprisonment for seven years by the judgment dated 24.06.2005, came up with this appeal. The factual background for the appeal is that the Assistant Commissioner of Police, Abids Division, Hyderabad, filed the charge sheet against five accused stating that Poornima Varma was married to the first accused on 03.03.1999 at Pune and her parents spent Rs.2,50,000/- towards gold and silver ornaments, clothes and other expenses. Poornima Varma lived with the first accused and the other family members at Ramkote, Hyderabad and they were blessed with a son Prakash and a daughter Neha. Accused Nos.1 to 5 were claimed to have started harassing the deceased Poornima Varma mentally and physically alleging that she was not attending to the domestic work properly. The first accused was stated to have demanded money for purchase of a second hand car and when the parents of Poornima Varma expressed their inability, the accused started beating and torturing her. On 07.10.2002, at about 10.00 p.m., the first accused and Poornima Varma had a quarrel and the accused beat the deceased very severely causing severe injuries on the person of Poornima Varma about which she phoned to her father Kantilal N.Varma and wept. Then, Kantilal N.Varma talked to the accused No.2, the mother of the accused No.1, but in vain. Then he requested Vivekananda Agroya to visit Poornima Varma, who appeared to be in trouble but in the meanwhile, the first accused himself phoned to Vivekananda Agroya informing that the condition of Poornima Varma was serious. Then, Vivekananda Agroya, his brother-in-law, and friends rushed to Apollo Hospital, Hyderabad, and found the dead body of Poornima Varma. Vivekananda Agroya immediately informed Kantilal N.Varma, who rushed to Hyderabad and the parents of Poornima Varma gave a written report to Narayanguda Police, on which, the crime was registered. Kantilal N.Varma alleged in the report that he suspected that his daughter was beaten by her husband and other members of the family, due to which, she died. The Inspector of Police conducted panchanama at the scene of offence before the mediators, prepared rough sketch of the scene and got the scene photographed; broken bangle pieces were recovered from the scene, apart from the saree used for hanging. The statements of the parents of Poornima Varma were recorded by the IX Metropolitan Magistrate, Hyderabad under Section 164 of the Code of Criminal Procedure. While the accused Nos.1 and 5 were arrested and sent for judicial custody, accused Nos.2 to 4 surrendered before the Court. The Medical Officer, who conducted autopsy over the dead body, opined that the death was due to hanging and hence, the accused Nos.1 to 5 were prosecuted for the offence punishable under Section 304-B of the Indian Penal Code. The accused were furnished with the copies of documents and the learned Magistrate committed the case to the Court of Session. A charge under Section 304-B of the Indian Penal Code was framed against the accused Nos.1 to 5, to which they pleaded not guilty and claimed to be tried. PWs.1 to 11 were examined during trial, in the course of which, Exs.P1 to P14, Ex.D1 and M.Os.1 and 2 were marked. The accused denied the incriminating circumstances appearing against them, when they were examined under Section 313 of the Code of Criminal Procedure and the brother of the first accused was examined as DW.1. No other defence evidence was produced by the accused. The trial Court rendered the impugned judgment analyzing the evidence on record in detail and noting that the first accused did not explain as to how the deceased could have hanged herself in his bedroom at about 11.30 p.m., in the night though there was no direct evidence as to how the deceased hanged herself. The trial Court also noted that the deceased contacted her father - PW.1 before her death informing about the scuffle with her husband. The trial Court further noted that there was no explanation as to how the name of the deceased was entered as Arun Varma at some places and as to how the name Poornima Varma was added in some papers of the record of the Apollo Hospital. The trial Court further noted that Ex.P13 reply by PW.9 – medical officer to the questionnaire from the police specified that the injuries noted by him on the dead body were of recent origin and the contusion of right kidney could be due to reasonably heavy blunt force, while the abrasions found on the body could have been the result of persistent pressure caused by any object coming in contact with the skin of that area. PW.9 noted to have categorically answered that injuries 4 to 9 found by him were unlikely to be caused at the time of hanging and the possible loss of consciousness due to contusion of kidney was also noted by PW.9. PW.9 did not rule out possible physical assault by using blunt force unless proved otherwise, and this evidence of PW.9, with reference to Exs.P10, 12 and 13 and the photographs Exs.P7 and P8, showing some other injures were considered very important by the trial Court. The trial Court also noted that the ligature mark on the neck noted as ante mortem was also appearing to be not possible by use of M.O.2 – saree and that there must have been some violence from the factum of broken pieces of bangles M.O.1 - being present at the scene. It was also noted that the fifth accused himself stated to the Apollo Hospital doctors about the scuffle between the deceased and the first accused. The trial Court also observed that PW.9 did not note the normal changes that would occur in the internal parts of the body in a case of hanging and in the absence of any possible explanation from the accused during their examination before the Court or otherwise, the trial Court ruled out the injuries being caused either due to rough handling of the dead body or due to convulsions at the time of hanging. From such circumstances, the trial Court concluded the death of Poornima Varma to be otherwise than under normal circumstances. While noting that the death was admittedly within seven years of her marriage, the trial Court concluded from the complaint of PW.1 and other circumstances including the evidence of PW.2 that the deceased appeared to have been kept in isolation having been allowed to go to her parents only on three occasions and also appeared to have been abused and cruelly treated in connection with a demand for dowry. For this purpose, the trial Court took the aid of statutory presumption under Section 113-B of the Evidence Act. The trial Court considered that it was only the first accused, who subjected the deceased to harassment soon before her death as seen from the complaint of the deceased to PW.1 through phone and gave the benefit of doubt to the second to fifth accused. Consequently, while acquitting the accused Nos.2 to 5, the trial Court examined the first accused regarding the quantum of sentence and taking a lenient view in view of his having small children to be looked after by him, imposed the minimum sentence prescribed at seven years rigorous imprisonment. The first accused challenges the said judgment herein contending that the evidence of PWs.1 and 2 could not have been the basis for conclusion of any guilt and the trial Court did not consider the possibility disclosed by PW.9 of the injuries found on the deceased being possibly caused during Cardio Pulmonary Resuscitation to revive the function of heart and lungs. The multiple corrections in various documents were ignored and the interested evidence of PWs.1 and 2 alleging about the demand for additional dowry for the first time before the Court could not have led to his conviction. Sri N.Ramchander Rao, learned counsel for the appellant and Sri K.Venkateswara Rao, learned counsel representing the learned Public Prosecutor are heard at length. Insofar as the acquittal of accused Nos.2 to 5 is concerned, the same had not been challenged by the State or in any other manner and it had become final. The consideration herein is, therefore, confined to the first accused alone and the only point that arises for consideration is as to whether any offence had been made out against the first accused beyond all reasonable doubt and if so, what offence and what would be the reasonable quantum of punishment for any such offence? POINT:- The earliest version Ex.P1 from PW.1 alleged about the harassment for dowry and demands for huge money, apart from the first accused being addicted to alcohol. Poornima Varma was claimed to have phoned to PW.1 at about 10.00 p.m., in the night prior to her death and was claimed to have complained about her being in trouble on being beaten by the first accused, who twisted her hand. PW.1 suspected that his daughter might have died due to beating by the first accused and other members of the family. The evidence of PW.1, father of the deceased, admitted that his daughter and the first accused lived happily for about one year after the marriage and when his daughter was brought for delivery twice, the first accused himself came and took her back. It was alleged by PW.1 for the first time in the evidence about his daughter informing about the demand for Rs.50,000/- to purchase a second hand Car. The complaints by the daughter about being compelled to do household work and being harassed were stated to be subsequent through telephonic conversations, but PW.1 was specific about the telephonic call at about 10.00 p.m., on 07.10.2002 about being beaten by all the five accused and her hand being fractured. The evidence of PW.1, of course, discloses that the family of the first accused was in a more affluent condition and that they knew about the poorer financial state of PW.1 even at the time of the marriage. His evidence also discloses that there were mutual visits and that there were no serious incidents as to result in any total break down of communication between the families. Though PW.1 denied his daughter being under depression, he had to admit that he did not state to the police in his statement or to the Magistrate about the demand for Rs.50,000/- for purchasing a second hand Car etc. PW.2, son of PW.1 and the brother of the deceased, also spoke similarly before the Court, while admitting that his sister never complained anything to him when he visited her at her marital home twice, but again stated that his sister told him that she was being ill treated by the accused concerning the household work and gifts. It was PW.2 that drafted Ex.P1 in which, as already stated, there was no reference to the demand for money for purchase of a second hand Car and PW.2 had to admit that he did not state earlier to the police or otherwise about the demand for a second hand Car. The evidence of PWs.1 and 2 coupled with the other circumstances may thus disclose that there appeared no circumstantial basis for coming to a conclusion that there was any demand for or in connection with any dowry though there was possibility of the deceased complaining from time to time about the harassment or cruelty meted out to her from the family of the first accused. The evidence of PW.3, cousin of PWs.1 and 2, who informed about the death of Poornima Varma to them on being informed by PW.1 about the deceased’s phone call to him and his going to the Apollo Hospital, does not throw any direct light on the questions in issue and similar was the evidence of PW.4, the Mandal Revenue Officer, who conducted the inquest. The evidence of PW.5, who could not state anything about Alex Andrews attending on the deceased, was similar and PW.6 – Inspector of Police, who spoke about seizing of M.O.1 - bangle pieces, and M.O.2 – saree from the scene under a panchanama and who stated about getting a rough sketch prepared and getting the scene photographed can be taken to be corroborating the possibility of a scuffle between the first accused and the deceased before the death of the deceased probablised by the presence of broken bangle pieces at the scene. Though he did not verify about PW.1 receiving a telephone call from the house of the accused on that night, there is no reason to totally discredit his version, while the evidence of police officers, PWs.7 and 8, is also not much significant. The medical officer, who conducted the post mortem as PW.9, while stating the cause of the death to be hanging, was specific about finding 14 ante mortem injuries on the person of the deceased. He was specific that the injuries may not be ruled out to have been caused either due to convulsions or due to rough transport of the dead body during peri mortem period. Such observation was confined only to injuries 4 to 8 and 10 to 13 respectively. The other injuries as noted by the trial Court could find no explanation either from the evidence of all the witnesses or from the accused and were serious enough as to indicate the probability of their having been caused during the physical scuffle between the husband and the wife. While the evidence of PWs.10 and 11 about what happened at the Apollo Hospital when the dead body was brought is of not much significance, even the evidence of DW.1, brother of the first accused, only claimed that they were not allowing the deceased to do more domestic work as she was educated which did not rule out their making Poornima Varma attend some domestic work. The witness also attempted to claim that the deceased was under depression, which claim is uncorroborated by any dependable medical or other evidence and the evidence of DW.1 does not in any manner rule out the harassment and cruelty, which appeared to have been meted out to the deceased from the hands of her husband, the first accused. Even if the version of PWs.1 and 2 about the incident and the complaints of the deceased about her husband ill treating her may be open to criticism as tainted with interestedness, no such infirmity can be fastened to the ante mortem injuries found by the medical officer, PW.9, on the person of the deceased, for which there was no explanation. The analysis of the evidence, therefore, shows that the trial Court was not wrong in taking adverse note of the silence of the first accused as to how in his presence in his bedroom, the deceased could have hanged herself at about 11.30 p.m. The detailed analysis made by the trial Court about the nature of the injuries found on the dead body and the probabilities indicated thereby appeared quite logical and reasonable. But the death of Poornima Varma, which was thus proved to have been caused otherwise than under normal circumstances within seven years of her marriage, was of course not shown to be due to harassment for and in connection with a demand for dowry. While her being subjected to cruelty or harassment by the first accused was probablised beyond any reasonable doubt, any link between such cruelty or harassment and any demand for dowry cannot be considered established when the alleged demand for Rs.50,000/- for purchase of a second hand Car was alleged for the first time by PWs.1 and 2 in the evidence and when such a demand does not appear natural in view of the other circumstances on record. The presumption under Section 113-B of the Evidence Act becomes available only when the cruelty or harassment to which the woman was subjected is proved to be for or in connection with any demand for dowry and in the absence of proof of the existence of any such demand for dowry before the death of a woman, the presumption could not be available. Not only should there be such a demand but it should also be soon before her death and the alleged demand for Rs.50,000/- for purchasing a Car at the time of the first and second deliveries of the deceased cannot be considered to be soon before her death due to hanging on the date of the incident. If proof of any demand for dowry is absent, the offence, which can be attributed to the first accused, will be under Section 498 A of the Indian Penal Code as the wilful conduct on the part of the first accused to cause grave injury or danger to life, limb or health of the deceased was probablised by the evidence on record and such conduct is cruelty within the meaning of Section 498 A of the Indian Penal Code. The first accused becomes subject to punishment under that provision. Though there was proof of the deceased being subjected to do household work and the deceased having been subjected to physical violence before her death, the conduct of the first accused in that regard may also be not capable of being construed to be of such a nature as was likely to drive a woman to commit suicide to bring the conduct of the first accused within the scope of the offence of abetment of suicide punishable under Section 306 of the Indian Penal Code. What was proved was such conduct as causing grave injury and danger to the life, limb and health of the deceased amounting to cruelty within the meaning of Section 498 A of the Indian Penal Code and the presumption under Section 113-A of the Evidence Act as to abetment of suicide by the husband may not be invokable under the circumstances. The first accused has to be, therefore, found guilty of the offence punishable under Section 498 A of the Indian Penal Code, which is punishable with imprisonment for a term which may extend to three years and also fine. The first accused admittedly is taking care of the young son and daughter born out of the wedlock with the deceased even according to the evidence of PW.1 and DW.1 and he was aged only 32 years by the time of the incident, while he had no past criminal record. The need for imposing an appropriate sentence to adequately punish the first accused for the cruelty to his wife and the necessity to make his parental care available to his infant children have to be appropriately balanced in determining the punishment to be imposed and imposing a sentence of rigorous imprisonment for a period of two years will be not depriving the children for too long of the parental care and at the same time, it will not be excessively lenient. There need be no addition of imposition of fine to such sentence. In the result, the conviction of the first accused in S.C.No.660 of 2004 on the file of the IV Additional Metropolitan Sessions Judge, Hyderabad, by the judgment dated 24.06.2005 for an offence punishable under Section 304-B of the Indian Penal Code is set aside along with consequential sentence imposed therein and the said first accused is found guilty of an offence punishable under Section 498 A of the Indian Penal Code and he is sentenced to undergo Rigorous Imprisonment for a period of two years with the benefit of set off under Section 428 of the Code of Criminal Procedure and the appeal is ordered accordingly. ___________________ G. BHAVANI PRASAD, J 10th November 2009 KH