IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2273 of 2004 DATE:26.12.2011 Between: Bellamkonda Shekhar …… Appellant And State of A.P, rep. by P.P ...Respondent HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2273 of 2004 JUDGMENT : The appellant/A-1 was convicted by the lower Court under Section 304-B I.P.C and was sentenced to rigorous imprisonment of 10 years and fine of Rs.5,000/-. Questioning the same, A-1 filed this appeal. Though A-2 to A-4 were also tried along with A-1 by the lower Court for the offence under Section 304-B I.P.C, they were found not guilty of the said charge. 2) There is no dispute about marriage of the deceased Rama Devi with A-1 about 7 months prior to her death. On 31.10.2000 during late in the evening, the deceased left A- 1’s house for attending calls of nature and did not return to the house. On 04.11.2000 dead body of the deceased was traced in Nagarjuna Sagar Project canal at a distance of about half furlong from house of the accused. It is alleged that A-1 started harassing the deceased to bring Rs.40,000/- as additional dowry for purchase of Hero Honda motor cycle and also demanded her to dispose of 1 ½ acres of land given by her father and bring cash and that when the deceased did not bring the amount, A-1 subjected her to physical and mental torture and that on the evening of 31.10.2000 evening A-1 picked up quarrel with the deceased about the dowry amount and beat her and thereafter the deceased left the house and her dead body was traced after 4 days in canal. According to the prosecution, the deceased died by jumping into canal by way of suicide as she was fed up with continued harassment of her husband. Plea of the accused is one of total denial and not guilty. 3) P.Ws 1 and 2 are parents, P.Ws 4 and 5 are brother and sister of the deceased. P.W-3 is husband of P.W-5. P.W-6 is son of P.W-1’s brother. Three days after disappearance of the deceased, P.W-1 gave Ex.P-1 report to P.W-13 who was the then Sub-Inspector of Police, Garedepalli Police Station. He received Ex.P-1 report from P.W-1 on 03.11.2000 at 10.00 A.M. and registered the same as case in Crime No.82/2000 and issued Ex.P-10 F.I.R under the caption of ‘woman missing’. After tracing of dead body on 04.11.2000, he gave Ex.P-11 alteration memo to the Magistrate altering section of law in this case to Section 304-B I.P.C. P.W-14 is the then Mandal Revenue Officer, Huzurnagar Mandal who conducted inquest on dead body on 04.11.2000 in the presence of witnesses and panchayatdars under the cover of Ex.P-12 inquest panchanama. P.W-15 the then Inspector of Police, Huzurnagar circle took up investigation in this case. P.W-12 is the then Civil Assistant Surgeon in Community Hospital, Huzurnagar who along with another doctor conducted post mortem examination on dead body of the deceased on 05.11.2000 and gave Ex.P-9 post mortem examination report, after receipt of forensic science laboratory report, opining that cause of death was no poisonous substance and that the deceased appear to have died of Asphyxia due to drowning. From this post mortem examination report of P.W-12, it cannot be concluded whether it is a case of homicidal death or suicidal death or accidental death. But it certainly proved that the death of the deceased occurred otherwise than under normal circumstances. The death occurred in this case within 7 years of marriage between A-1 and the deceased. In order to find whether it is a case of dowry death under Section 304-B I.P.C., it has to be seen whether soon before her death, she was subjected to cruelty or harassment by A-1 for or in connection with any demand for dowry. 4) It is evidence of P.W-1 that at the time of marriage they have given 1 ½ acres of land, Rs.45,000/- in cash to his daughter. He says that he also agreed to give Bajaj vehicle, but A-1 demanded for Hero Honda vehicle and that he sent Rs.20,000/- in cash through P.Ws 3 and 5 to A-1 who refused to take the said amount demanding another Rs.20,000/- for purchase of Hero Honda for Rs.40,000/-. What was given at the time of marriage, is not the subject matter in this case. According to P.W-1, the dispute was only with regard to giving of two wheeler, P.W-1 offering to give Bajaj vehicle whereas A-1 demanding for Hero Honda vehicle. Scrutiny of evidence of P.Ws 3 to 6 in this appeal is limited to the said controversy and not with regard to what was given at the time of marriage. It is further evidence of P.W-1 that A-1 was not allowing the deceased to see her mother who was operated for back pain and that P.W-2 and P.W-4 went to house of the accused and brought the deceased and that A-3 and father of A-1 came and took away the deceased informing that A-1 was not well and that about 4 days thereafter, A-3 came and informed about the deceased not being seen. He says that he along with other relatives searched for the deceased and that the accused informed him that the deceased left the house after indulging in a quarrel. He did not say as to who out of A-1 to A-4 informed him about the deceased leaving the house after indulging in a quarrel. In cross-examination he deposed that he had not stated to others that A-1 was demanding Hero Honda vehicle and cash and that there was no panchayat before any elders for the said demand of Hero Honda vehicle by A-1 and on his difficulty to give the amount to him. At this stage, a look at Ex.P-1 report given by P.W-1 to the police becomes relevant. It was stated in Ex.P-1 report by P.W-1 that since the date of marriage, A-1 was harassing the deceased and that A-1 was not sending the deceased for festivals and that on 31.10.2000 at about 2.00 A.M. in the night, A-1’s father Ramulu came to his house and informed that the deceased was not being seen and that wife and husband (the deceased and A-1) had some altercation. In Ex.P-1, P.W-1 expressed suspicion on A-1 to A-4 and also expressed that they might have beaten the deceased and thrown her into Sagar major canal. A-1’s father Bellamkonda Ramulu is not examined by the prosecution even though his name was specifically mentioned in Ex.P-1 report to the effect that he gave information to P.W-1 about there being a quarrel between A- 1 and the deceased before the deceased leaving their house. 5) P.W-2 deposed that A-1 demanded for Rs.30,000/- for purchase of Hero Honda vehicle and that A-1 was not allowing her daughter to go to her parents’ house and that when P.W-4 took Rs.10,000/- to A-1, he refused and that when P.Ws 3 and 5 went to A-1 and informed him that they would arrange the amount through P.W-1 and requested him to send the deceased, A-1 did not allow the deceased to go with them. She says that she along with P.W-4 went in auto to A-1’s house and brought the deceased for Deepavali festival and that on the next day of Deepavali festival, A-3 and father of A-1 took away the deceased to the house of A-1 informing that A-1 was not well and so presence of the deceased was required. P.W-3 deposed that A-1 harassed the deceased demanding amounts by selling the agricultural land and also for purchase of Hero Honda vehicle and that the deceased informed the same to him when he went to A-1’s house. What was informed by the deceased to P.W-3, is no relevant piece of evidence as it is not saved by Section 32 of Evidence Act. P.W-3 further deposed that P.W-1 gave Rs.20,000/- and he took the amount to A-1, but A-1 refused to receive the same stating that the amount was insufficient and he needs Rs.40,000/- for purchase of Hero Honda vehicle. He says that he tried to convince A-1 not to harass the deceased and they would arrange the amount by sale of land. P.W-3 also speaks about P.Ws 2 and 4 going to house of A-1 and bringing the deceased to their house for Deepavali festival and on the next day, A-3 and father of A-1 coming and taking back the deceased to their house on the ground of A-1 suffering from ill health. P.W-4 deposed that A-1 harassed the deceased demanding dowry and for Hero Honda vehicle. He speaks about he and P.W-2 going and bringing the deceased to their house for Deepavali festival and on the next day, A-3 and father of A-1 coming and taking back the deceased to their house informing that A-1 was not well. P.W-5 deposed that when she went to house of A-1, the deceased informed her about A-1 harassing her demanding dowry and for purchase of Hero Honda vehicle. The said evidence of P.W-5 is not a relevant piece of evidence under Section 32 of the Evidence Act. P.W-5 further deposed that when her father gave Rs.20,000/- which they offered to A-1, A-1 refused to take the amount stating that it was not sufficient for purchasing Hero Honda vehicle and he needed Rs.40,000/-. P.W-6’s evidence is based on what was informed to him by the deceased when she visited her parents’ house. So also, evidence of P.W-7 who is a neighbour of P.W-1. P.W-8 is a boy who was studying 5th class. His house is near A-1’s house. On that night when the deceased left A-1’s house, P.W-8 was in the house as he went there for studies. He says that A-1’s wife left the house for attending calls of nature. P.Ws-9 and 10 also deposed that the deceased left A-1’s house for attending calls of nature during that night. P.Ws 9 and 10 were treated as hostile to the prosecution. 6) Though evidence of P.Ws 1 to 6 revealed that there was some tussle going on between P.W-1 and A-1 with regard to two wheeler to be given by P.W-1 to A-1. The dispute is not for giving two wheeler, but the dispute is with regard to nature of two wheeler to be given. P.W-1 was offering to give Bajaj vehicle which may cost Rs.20,000/- whereas A-1 wanted Hero Honda vehicle costing about Rs.40,000/-. The harassment which A-1 is stated to have subjected on the deceased was about not sending the deceased to her parents’ house and even though the deceased was taken to her parents’ house for Deepavali, recalling her back to A-1’s house on the next day on the pretext of A-1 suffering from illness. In Ex.P-1 report given by P.W-1, P.W-1 stated about harassment of the deceased by A-1 by not sending her to her parents’ house. He did not state or indicate anything in Ex.P-1 about the dispute with regard to two wheeler. P.W-1 did not attribute not sending his daughter to his house by A-1 to any dispute regarding demand for Hero Honda vehicle or any other demand for presents or additional dowry. For the first time after dead body was traced and during inquest conducted by Mandal Revenue Officer, the dispute regarding two wheeler came to surface. Until then, though there was opportunity for P.W-1 to mention the said dispute also in Ex.P-1, it was not stated in Ex.P-1 report by P.W-1. This is a circumstance which throws doubt on subsequent version which is a development at a later stage. 7) Assuming for a moment for the sake of argument that there was demand for the motor cycle from A-1 which was not fulfilled by P.W-1, there is no evidence let in by the prosecution to show that there was any occasion between A-1 and the deceased soon before the deceased left A-1’s house either for quarrel between them or harassing or subjecting the deceased to cruelty by A-1 on that ground. In the absence of proof of any harassment or subjecting the deceased to cruelty soon before her death, one of the ingredients under Section 304-B I.P.C is not satisfied in this case. 8) Even for considering alternative stand whether there was any harassment or cruelty towards the deceased leading to her commission of suicide, unfortunately there is no evidence of suicide in this case. As pointed out earlier, though the prosecution was able to prove that the deceased died of asphyxia due to drowning, there is no other evidence to show whether it was by way of homicide or by way of suicide or by way of accidental death. Evidence on record reveals that there was no toilet in the house of A-1 and people go to canal bund for attending calls of nature. In the same manner, the deceased left A-1’s house on that night on the pretext of attending calls of nature. It is not known muchless proved as to how the deceased landed in water resulting in her death. In the absence of proof of commission of suicide by the deceased, this Court cannot surmise that the deceased committed suicide on that night. Therefore, the prosecution was not able to prove requirements of clause (a) of explanation to Section 498-A I.P.C in order to find A-1 guilty thereunder. 9) In the light of the above discussion of the prosecution evidence on record, I am of the opinion that the lower Court did not consider the evidence on record analytically and landed in erroneous conclusion in favour of the prosecution. Simply because there was dispute between P.W-1 and A-1 with regard to presentation of a two wheeler, the dispute being nature of two wheeler and not presentation of two wheeler as such, it cannot be concluded that it is a case of dowry death. I do not agree with reasoning and conclusion of the lower Court on this aspect, particularly when the prosecution has failed to prove that the deceased was subjected to cruelty for the sake of dowry soon before her death. 10) In the result, the appeal is allowed setting aside the conviction and the sentence passed by the lower Court against the appellant/A-1 and acquitting him. _______________________________ SAMUDRALA GOVINDARAJULU, J December 26, 2011 ksh