There must be existence of a proximate and live-link between the affect of cruelty based on dowry demand and the concerned death: Telangana High Court

HONOURABLE JUSTICE G.SRI DEVI CRIMINAL APPEAL No.320 Accused No.1 in Sessions Case No.178 of 2016 on the file of the Judge Family Court cum VI Additional District and Sessions Judge Nalgonda is the appellant herein. He along with two others were charged for the offences punishable under Sections 498 A 302 304 B of I.P.C. and Sections 3 and 4 of the Dowry Prohibition Act 1961. By its judgment dated 30.12.2019 the learned trial Judge while acquitting A 2 and A 3 for the offences punishable under Sections 498 A 304 B of I.P.C. and Sections 3 and 4 of the Dowry Prohibition Act 1961 and A 1 for the offence punishable under Section 302 of I.P.C. convicted A 1 for the offences punishable under Sections 304 B 498 A of I.P.C. and Section 4 of the Dowry Prohibition Act 1961 and sentenced him to suffer rigorous imprisonment for seven years for the offence punishable under Section 304 B of I.P.C. and to suffer rigorous imprisonment for two years and to pay a fine of Rs.2 000 in default to suffer simple imprisonment for two months for the offence punishable under Section 498 A of I.P.C. and also to suffer rigorous imprisonment for one year and to pay a fine of Rs.2 000 in default to suffer simple imprisonment for two months for the offence punishable under section 4 of the Dowry Prohibition Act 1961. All the sentences were directed to be run concurrently. GSD J The case of the prosecution according to the evidence let in during the course of trial is that one Ashwiniwas the elder daughter of P.W.1 Mididoddi Ramachandru and she was given in marriage to A 1 three years prior to the date of offence. At the time of marriage P.W.1 presented cash of Rs.4.00 lakhs 5 ½ tulas of gold ornaments and other household articles. Immediately after the marriage the deceased was taken to the house of the accused and there A 1 and the deceased lived happily for four months and thereafter A 1 to A 3 started harassing the deceased for additional dowry of Rs.2.00 lakhs and one motorcycle. On the demand made by A 1 to A 3 P.W.1 informed to the deceased and A 1 to A 3 that he will arrange the additional dowry of Rs.2.00 lakhs and motorcycle to A 1 at the time of Sankranthi festival. Three days thereafter P.W.1 received a phone call from the younger brother of A 1 that the deceased fell down from the motorcycle and received injuries and she was admitted in Kamineni Hospital Narketpally and immediately P.W.1 P.W.2 and P.W.5 went to Kamineni Hospital Narketpally but they did not find the deceased in the hospital. The R.M.P. doctor of Korlapahad Village informed them that the deceased was shifted to the Government Hospital Nakrekal then they went there and found the dead body of the deceased with injuries on the right shoulder and chest. GSD J On 09.11.2013 P.W.1 lodged a reportwith P.W.26 the then Assistant Sub Inspector of Police. Basing on the said report P.W.26 registered a case in Crime No.157 of 2013 for the offences punishable under Sections 302 and 498 A of I.P.C. and issued Ex.P24 First Information Report. He recorded the statement of PW.1 and sent the F.I.R. to all the concerned. On receipt of the First Information Report P.W.27 the Inspector of Police took up investigation and proceeded to the Primary Health Centre Nakrekal conducted inquest over the dead body of the deceased in the presence of P.Ws.19 to 22. Ex.P18 is the inquest report. During inquest P.W.12 trained constable) photographed and videographed the dead body and P.W.19 seized M.Os.1 to 4 in the presence of P.Ws.16 and 20. Thereafter P.W.27 proceeded to the scene of offence prepared a panchanama of the scene of offence in the presence of P.Ws.17 and 18 and also prepared a rough sketch of the scene of offence which are placed on record as Exs.P26 and P27. He examined and recorded the statements of P.Ws.5 and 6 at the scene of offence. Later the dead body was sent to Community Health Centre Nakrekal where P.W.21 and other team of doctors have conducted postmortem examination over the dead body and issued Ex.P19 the postmortem certificate. After completion of investigation PW.27 filed a charge sheet before the Court of Judicial Magistrate of First Class Nakrekal who in turn committed the case to the Sessions Division. On committal the same came to be numbered as S.C.No.1718. GSD J On appearance of the accused charges under Sections 498 A 302 and 304 B I.P.C. and Sections 3 and 4 of the Dowry Prohibition Act 1961 1961 were framed against A 1 and charges under Sections 498 A and 304 B of I.P.C. and Sections 3 and 4 of the Dowry Prohibition Act 1961 I.P.C came to be framed against A 2 and A 3 read over and explained to the accused to which they pleaded not guilty and claimed to be tried. In order to prove its case the prosecution examined PWs.1 to 29 and got marked Exs.P1 to P31 and M.Os.1 to 4. After closure of prosecution evidence the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of the prosecution witnesses to which they denied. Neither oral nor documentary evidence was adduced on behalf of the accused. On appraisal of the evidence both oral and documentary the learned trial Judge has convicted A 1 for the aforesaid offences and sentenced him as stated supra while acquitting A 2 and A 3 for the charges leveled against them. Aggrieved by the said conviction and sentence the appellant A 1 preferred the present appeal. Learned Counsel for the appellant A 1 mainly contended that the evidence let in by the prosecution does not inspire confidence that the appellant committed the alleged offences. According to her there is absolutely no evidence against the appellant A 1 who is the GSD J husband of the deceased and as such the trial Court ought not to have convicted him for the charges framed against him. According to the learned Counsel the alleged offence does not satisfy the requirements of Section 304 B of I.P.C. According to him the words used in Section 304 B I.P.C. are that soon before her death the deceased was subjected to cruelty or harassment by her husband or any relative of her husband. In the instant case according to the learned Counsel the deceased suffered breathing problem on the alleged date of incident and died while shifting her to the hospital. Therefore he contended that the appellant A 1 is not liable to be convicted under Section 304 B I.P.C. In respect of the other charge for dowry harassment she contended that there is no clinching evidence which would establish that there was any physical or mental harassment by the appellant A 1 for dowry. On the contrary the learned Assistant Public Prosecutor appearing for the respondent complainant contended that the evidence on record would clinchingly establish the case against the appellant and the trial Court was justified in convicting and sentencing the appellant for the charges framed against him. He also points out that according to Section 113 B of I.P.C. if a woman dies within seven years of her marriage a presumption under Section 113 B of I.P.C. has to be drawn and if the events as spoken to by the prosecution witnesses are taken into consideration it clearly GSD J satisfies the ingredients of Section 304 B of I.P.C. and thus justifies the conviction and sentence imposed by the trial Court. In order to prove its case the prosecution examined as many as 29 witnesses. P.Ws.1 to 7 and 10 are the close relatives of the deceased. Admittedly there are no eyewitnesses to the alleged beating of the deceased by the appellant A 1 on the alleged date of incident and the entire case rests on the circumstantial evidence. P.Ws.1 to 7 9 10 11 13 14 and 15 are circumstantial witnesses. P.Ws.9 to 10 and 13 to 15 who were cited as circumstantial witnesses did not support the case of the prosecution. P.W.8 who was cited as an eyewitness to the incident did not support the case of the prosecution and in her deposition she categorically stated that the deceased was suffering from breathing problem on the alleged date of incident and she died while she was being shifted to the hospital. P.W.1 who is the father of the deceased deposed in his evidence that the marriage of the deceased was performed with A 1 on 18.05.2013 and at the time of marriage he presented cash of Rs.4 lakhs 5 ½ tulas of gold ornaments and household articles to A 1 towards dowry. He further stated that after the marriage the deceased joined with A 1 and lived happily for four months and thereafter A 1 to A 3 harassed the deceased for additional dowry of Rs.2 lakhs and one motorcycle. GSD J P.W.2 who is the mother of the deceased deposed that the deceased Aswini is her elder daughter and her marriage was performed with A 1 and at the time of marriage they presented cash of Rs.4 lakhs 5 ½ tulas of gold ornaments and household articles to A 1 towards dowry. She further stated that after the marriage the deceased joined with A 1 at Korlaphad and lived happily for four months and thereafter A 1 to A 3 harassed the deceased for additional dowry of Rs.2 lakhs and one motorcycle. The deceased informed her about the demand of dowry by A 1 to A 3 whenever she visited her house. She also deposed that in the year 2013 during the festival of Deepavali she went to the house of the deceased and at that time A 1 to A 3 demanded Rs.2.00 lakhs and one motorcycle towards additional dowry on that she informed the same to P.W.1 after she returned to her house and thereafter P.W.1 informed the deceased and A 1 to A 3 over phone that he will arrange the additional dowry of Rs.2.00 lakhs and motorcycle at the time of Sankranti festival. Three days thereafter they received a phone call from the younger brother of A 1 that the deceased fell down from the motorcycle and received injuries and asked him to come to Kamineni Hospital Narketpally. Immediately she along with her husband and her mother in law went to Kamineni Hospital Narketpally but they did not find the deceased in the hospital and the R.M.P. doctor informed them that the deceased was shifted to Government Hospital Nakrekal and then they went there and found that the deceased dead and they noticed injuries on the right GSD J shoulder and chest of the deceased. She further deposed that A 1 to A 3 harassed her daughter both physically and mentally and beat her indiscriminately due to which the deceased died. The evidence of P.W.3 who is the paternal uncle of the deceased is also to the same effect. P.W.4 who is the brother of P.W.2 deposed that the marriage of the deceased was performed with A 1 on 18.05.2013 and at the time of marriage P.W.2 presented cash of Rs.4.00 lakhs and 5 ½ tulas gold ornaments to A 1 towards dowry. After the marriage the deceased joined with A 1 at Korlapahad and both of them lived happily for two months. He also deposed that two days prior to the death of the deceased he received a phone call from P.W.1 and informed him that A 1 demanded Rs.2.00 lakhs and one motorcycle towards additional dowry and three days thereafter he received a phone call from P.W.1 that one Saidulu informed P.W.1 that the deceased was fell down from the bike and admitted in Kamineni Hospital Narketpally. Immediately he went to Kamineni Hospital Narketpally and verified the deceased along with P.Ws.1 to 3 and others but they did not find the deceased in the hospital. When they enquired with the said B.Saidulu about the deceased he informed that the deceased was shifted to Government Hospital Nakrekal and immediately himself P.Ws.1 to 3 reached Nakrekal and found the body of the deceased in the hospital with bleeding injuries on the right side shoulder chest and also pressing injury on GSD J the neck of the deceased. He also deposed that A 1 to A 3 were harassed and assaulted the deceased in demand of additional dowry due to which the deceased died. P.W.5 who is the grand mother of the deceased deposed that the marriage of the deceased was performed with A 1 and at the time of marriage P.W.1 presented cash of Rs.4.00 lakhs and 5 ½ tulas of gold ornaments to A 1 towards dowry and they lived happily for two months. She stated that A 1 harassed the deceased in demand of additional dowry of Rs.2.00 lakhs and one motor cycle. She further stated that when the deceased and A 1 came to their house for Dasara festival the deceased informed her about the said demand of dowry and that she told to A 1 that they will arrange Rs.2.00 lakhs and one motorcycle at the time of Sankranti festival. Three days prior to the death of the deceased she received a phone call form P.W.1 that the deceased fell down from the bike of A 1 and asked her to come to Kamineni Hospital Narketpally and then herself P.Ws.1 to 3 and one M.Yadaiah went to Kamineni Hospital Narketpally but they did not find the deceased in the hospital. On that P.W.1 contacted A 1 and A 1 informed to P.W.1 that the deceased was shifted to Government Hospital Nakrekal then they reached there and found the deceased died with bleeding injuries on the nose ear shoulder neck and chest of the deceased. She also deposed that A 1 to A 3 harassed and assaulted the deceased in GSD J demand of additional dowry of Rs.2.00 lakhs and one motorcycle due to which the deceased died. P.W.6 who is the relative of P.W.1 deposed that he is one of the marriage elders of the deceased with A 1 and at the time of marriage P.W.1 presented cash of Rs.4.00 lakhs 5 ½ tulas of gold ornaments to A 1 towards dowry. After the marriage the deceased joined with A 1 at Korlapahad and they lived happily for two months. He further deposed that the deceased informed him when she came to her parents house that A 1 harassed her in demand of additional dowry of Rs.2.00 lakhs and one motorcycle and he told to A 1 that P.Ws.1 and 2 will arrange the same. He came to know through the neighbours that the deceased was died in Nakrekal Government Hospital and immediately himself and some of the villagers went to Nakrekal Hospital and found that the deceased was died with an injury on her neck. P.W.7 who is also one of the relatives of P.Ws.1 and 2 deposed that the marriage of the deceased was performed with A 1 on 18.05.2013 at the time of marriage Rs.4.00 lakhs and 5 ½ tulas of gold were presented to A 1 towards dowry and both the couple lived happily for two months and thereafter some disputes arose between them. P.W.1 used to inform about the family affairs of A 1 and the deceased. A 1 to A 3 harassed the deceased and P.Ws.1 and 2 in demand of additional dowry. On the date of incident when he was in his house P.W.1 informed him over phone that he has GSD J received a phone call from one Saidulu that the deceased fell down from the motorcycle and sustained injuries and she was taken to Kamineni Hospital Narketpally. Immediately he rushed to the house of P.W.1 then he himself along with P.Ws.1 to 6 went to Kamineni Hospital Narketpally but they did not find the deceased. On enquiry they came to know through R.M.P. doctor that the deceased has died on the way to Nakrekal Government Hospital and immediately they went there and found that the deceased was in the mortuary. They noticed injuries on the shoulder neck and chest of the deceased. He further deposed that the deceased died due to the unbearable harassment of A 1 to A 3. Before proceeding further it would be useful to refer to Section 304 B of I.P.C. which deals with dowry death reads as under: 304 B. Dowry Death 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 same meaning as in Section 2 of the Dowry Prohibition Act 1961Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life." The provision has application when 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 relatives of her husband for or in connection with any demand for dowry.” In order to attract application of Section 304 B IPC the essential ingredients are as follows: “(i) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance. ii) Such a death should have occurred within seven years of her marriage. iii)She must have been subjected to cruelty or harassment by her husband or any relative of her husband. iv) Such cruelty or harassment should be for or in connection with demand of dowry. v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death. Section 113 B of the Evidence Act is also relevant for the case at hand. Both Section 304 B IPC and Section 113 B of the Evidence Act were inserted as noted earlier by the Dowry Prohibition Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113 B reads as follows: GSD J 113 B: Presumption as to dowry death When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for or in connection with any demand for dowry the Court shall presume that such person had caused the dowry death. Explanation For the purposes of this section dowry death shall have the same meaning as in Section 304 B of the Indian Penal Codeand then her father went and brought R.M.P. doctor and the said RMP doctor gave first aid. P.W.9 also deposed that on the date of incident while he was at his house P.W.8 informed him that the deceased was suffering from breathing problem and immediately he went and brought R.M.P. doctor who gave first aid to the deceased and asked him to take the deceased to a private hospital at Nakrekal. Therefore it appears that the deceased died due to breathing problem while cleaning the store room which is used for keeping paddy. The evidence of these witnesses is supported by the medical evidence. P.W.21 the doctor who conducted post mortem examination on the dead body of the deceased opined that the cause of death was due to asphyxia due to smothering. Thus from a perusal of the evidence of the prosecution witnesses the essential ingredient which is necessary to attract the offence under Section 304 B of I.P.C. i.e. the deceased was subjected to cruelty by the appellant soon before her death in demand of dowry is lacking. As such the appellant is entitled to the benefit of doubt for the offence under Section 304 B of I.P.C. Now the question is whether a case under Section 498 A of I.P.C. has been made out even if accusations under Section 304 B of I.P.C. fail. Section 498 A of I.P.C. reads as follows: GSD J 498 A: Husband or relative of husband of a woman subjecting her to cruelty Whoever being the husband or the relative of the husband of a woman subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation For the purpose of this section cruelty means a) any wilful 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 healthof 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." instant case the cross examination P.W.1 categorically admitted that he is earning Rs.200 to Rs.300 per day by doing coolie work. P.W.2 also admitted in her cross examination that she is also doing labour work and earning Rs.100 per day. In view of the categorical admissions made by P.Ws.1 and 2 regarding their status it is quite unbelievable that they have paid such a huge amount of Rs.4.00 lakhs cash and 5 ½ tulas of gold ornaments towards dowry to the accused and also informed the deceased that they will arrange additional dowry of Rs.2.00 lakhs and motorcycle at the time of Sankranti festival to accused. The inquest report of the deceased which was held in the presence of P.Ws.16 and 20 on 09.11.2013 at 1.30 P.M. would shows that at the GSD J time of inquest only Mattelu Ear studs and Nose pin were found on the body of the deceased and not any other gold ornaments particularly “pusthelathadu” and as such the case of prosecution that at the time of marriage P.Ws.1 and 2 have given 5 ½ tulas of gold ornaments is found to be false. Therefore under these circumstances the demand of additional dowry appears to have been invented by the prosecution witnesses after the death of the deceased. If really the accused were harassing the deceased to bring additional dowry certainly this fact would have been stated by P.W.2 before P.W.28 who recorded her statement. Moreover in this case the lodging of the complaintafter due deliberations cannot be ruled out because of the reason that it came to be filed on 09.11.2013 at 12.00 Noon whereas the prosecution witnesses have received the information on the previous day evening itself and they reached the hospital immediately thereafter. P.Ws.1 2 and 3 have categorically deposed that P.W.1 has lodged the report on the very date i.e. on the date of death of the deceased. But in the cross examination P.W.7 has categorically admitted that the complaint was drafted by one Pendyala Bixam at his instructions and on 09.11.2013 he gave the complaint to the Police Kethepally. Whereas a perusal of the complaint it does not bear the signature of the scribe of the complaint. The said Pendyala Bixam was neither cited as witness nor examined by the prosecution for the reasons best known to them. In view of these circumstances it is highly unsafe GSD J to place an implicit reliance on the evidence of P.Ws.1 and 2 with regard to the demand of additional dowry. Basing upon the evidence of P.Ws.1 to 7 the trial Court while acquitting A 2 and A 3 for the offences punishable under Sections 498 A 304 B of I.P.C. and Sections 3 and 4 of the Dowry Prohibition Act 1961 convicted the appellant A 1 only for the offences punishable under Sections 498 A and 304 B of I.P.C. and Section 4 of the Dowry Prohibition Act 1961. As discussed above it is clear that the evidence is not wholly reliable with regard to the demand of dowry soon before the death of the deceased. If that evidence is eschewed from consideration the appellant cannot be convicted for the offences punishable under Sections 498 A and 304 B of I.P.C. and Section 4 of the Dowry Prohibition Act 1961. For the foregoing reasons I am of the considered opinion that the prosecution has failed to prove the guilt of the appellant A1 for the offences punishable under Sections 304 B and 498 A of I.P.C. and Section 4 of the Dowry Prohibition Act 1961 beyond all reasonable doubt and that he is entitled to the benefit of doubt. Accordingly the Criminal Appeal is allowed and the conviction and sentence passed by the learned Judge Family Court cum VI Additional District and Sessions Judge Nalgonda against the appellant A 1 for the offences punishable under Sections 498 A and 304 B of I.P.C. and Section 4 of Dowry Prohibition Act 1961 by GSD J judgment dated 30.12.2019 in S.C.No.1716 are hereby set aside and he is acquitted of the said offences and he shall be set at liberty forthwith if he is not required in any other case. The fine amount if any paid by the appellant A 1 shall be returned to him. ____________________ JUSTICE G.SRI DEVI 22.04.2021 21 GSD J 

Summary: Prosecution has failed to prove the guilt of the appellant beyond all reasonable doubt and he is entitled to the benefit of doubt. This was said in the case of Boddupally Venkanna vs The State Of Telangana [CRIMINAL APPEAL No.36 of 2020] by Justice G. Sri Devi in Telangana High Court.  The facts of the case date back to 30.12.2019 when the appellant along with two others, were charged for the offences punishable under Sections 498 A, 302, 304-B of I.P.C. and Sections 3 and 4 of the Dowry Prohibition Act, 1961. The trial judge while acquitting the other two accused, convicted and sentenced the appellant under all the above sections.  Assailing the judgment of the Trial Court, the appellant moved the High Court. The appellant contended that the words used in Section 304-B I.P.C. are that ‘soon before her death’ the deceased was subjected to cruelty or harassment by her husband or any relative of her husband. In the present case, the deceased suffered a breathing problem on the alleged date of the incident and died while shifting her to the hospital. Therefore, he contended that the appellant is not liable to be convicted under Section 304-B I.P.C. In respect of the other charge for dowry harassment, they contended that there is no clinching evidence that would establish that there was any physical or mental harassment by the appellant for dowry. On the contrary, the respondent contended that the evidence on record would establish the case against the appellant. He also points out that according to Section 113-B of I.P.C. if a woman dies within seven years of her marriage, a presumption under Section 113-B of I.P.C. has to be drawn and if the events as spoken to by the prosecution witnesses are taken into consideration, it clearly satisfies the ingredients of Section 304-B I.P.C. The Court after analyzing the facts of the case and the settled position of law on the subject opined that “The expression ‘soon before’ is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. To indicate that the expression ‘soon before’ would normally be implied that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be the existence of a proximate and live-link between the affect of cruelty based on dowry demand and the concerned death. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence”.