At, High Court of Andhra Pradesh
By, THE HONOURABLE MR. JUSTICE IYYAPU PANDURANGA RAO
For the Appearing Parties: E.Ella Reddy, Advocate.
( 1 ) CRIMINAL Appeal No. 42 of 1992 is directed against the judgment dated November 15,1990 of the learned Sessions Judge Nizamabad in S. C No. 47 of 1990 on his file finding the respondents 1 to 3 (herein after referred to as the accused 1 to 3' respectively) not guilty for the offences for which they were charged and acquitted them, giving the benefit of doubt. Aggrieved by the said acquittal the Government has filed this appeal. The Criminal Revision case was instituted on the basis of the complaint given by the father of late Rajeeva (herein after referred to as 'the deceased' ). He filed the Criminal Revision Case no. 72/91 against the same judgment.
( 2 ) THE gravamen of the charge against the accused is that on 9-9-1987 at about 7-30 p. m, they abetted the commission of suicide by the deceased, an offence punishable under Section 306 IPC the deceased died due to harassment and cruelty in connection with the demand for bringing more dowry from her parents and as a result the deceased died and consequently the accused are liable for punishment under Section 304-B IPC and that the accused harassed the deceased for dowry and the deceased died as a result of the said harassment which is an offence punishable under Section 498-A of the IPC. 2. The prosecution story in brief is as follows: The deceased was the eldest daughter of P. W. I through his second wife P. W. 3. The deceased studied upto intermediate. She was married to A-1 on 18-5-1987 at Nizamabad as per Hindu rites and customs. 'immediately after the marriage, the deceased joined A-l and started living in the family house of A-2. While so, on4-9-1987 during night time the deceased became unconscious. As such A-l immediately rushed to the house, of P. W. I which is hardly at a distance of abou
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1v2 furlongs at nizamabad and informed P. W. I that the deceased was unwell. Immediately p. W. 1 came and found the deceased in an unconscious state. Immediately thereafter the deceased was removed to the District Headquarters hospital, nizamabad where she was treated by P. W. 2, Civil Assistant Surgeon, Govt head quarters hospital, Nizamabad and diagnosed that that was a case of insecticide poison. While in the hospital, the deceased continued to be unconscious and breathed her last on 9-9-1987 at about 7. 45 a. m. P. W. 2 who was working as Civil Assistant Surgeon, Government Headquarters hospital, nizamabad was then on duty and she sent Ex. P-2 death intimation to the police. P. W. 13, Head Constable attached to police booth Government Headquarters hospital, Nizamabad, having received Ex. P-2 intimation went to the government Headquarters hospital, Nizamabad and was informed that the deceased was unconscious. After the death of the deceased, he proceeded to the government Headquarters hospital on 9-9-1987 and recorded Ex. P-8 statement from A-2. P. W. 14 who was then working as S.. of Police, II town police station nizamabad registered Ex. P-8 as F.. R. in Cr. No. 108/87 under Section 174 cr. P. C. Later P. W. 13 conducted inquest over the dead body of the deceased in the presence of P. W. 10 and another mediator. Ex. P-5 is the inquest report. Later the corpse was sent to post-mortem examination. ( 3 ) P. W. LL worked as Medical Officer, Government Headquarters hospital, nizamabad during the relevant period. On 9-9-1987 he conducted post-mortem examination over the corpse of the deceased. Ex. P-6 is the post-mortem certificate. He sent the stomach, loop of intestines, chamber of liver and kidneys and spleen to the Chemical Examiner, Hyderabad having duly preserved the same. Ex. P-7 is the report of the Chemical Examiner received by P. W. 11, stating that the death was due to Endosulphan, an insecticide poison. ( 4 ) AFTER the death of the deceased on 9-9-1987 at about 8 p. m. , P. W. I who is no other than the father of the deceased went to P. W. 14, the sub-Inspector of police and gave Ex. P-1 report regarding the death of the deceased alleging that her daughter's death is a case of dowry death. P. W. 14 registered Ex. P-1. In view of the averments made in Ex. P-1, P. W. 14 altered the section of law from 174 cr. P. C. to 498-A and 306 IPC. Then he examined P. Ws. 1,3 to 9 and recorded their statements. On 16-9-1987 at about 5 p. m. he arrested the accused. P. W. 15 continued further investigation in this case and laid charge-sheet against the accused. ( 5 ) ON behalf of the prosecution P. Ws. 1 to 15 were examined and Exs. P-1 to p-9 were marked. After the prosecution evidence was closed the accused were examined to explain the circumstances appearing against them in the evidence of witnesses examined by the prosecution. The accused denied to have committed any offence and in defence while the first accused has examined himself as D. W. 2 his father the second accused is examined as D. W.. They have denied the entire prosecution story and have stated that the deceased has committed suicide and denied demanding of dowry and also denied to have harassed the deceased. Having considered the entire material on record the learned Assistant Sessions Judge has not inclined to Accept the prosecution story and giving the benefit of doubt, all the accused were acquitted of the charges framed against them and aggrieved by the same, while the State filed criminal Appeal No. 42/92, P. W. I who is no other than the father of the deceased filed Criminal R. C. No. 72/91. ( 6 ) A-1 was married to the deceased on 18-5-1987 and the deceased breathed her last at 7-45 a. m. on 9-9-1987 having consumed Endosophan, an insecticide poison. These facts are not in dispute and they are well established from the evidence on record. ( 7 ) IT is the prosecution story that this is a case of dowry death within the four corners of Section 304-B IPC; the accused abetted the commission of suicide by the deceased an offence punishable under Section 306 IPC and the deceased was subjected to cruelty by the accused within the meaning of Section 498-A of the IPC and consequently the accused are liable for punishment under section 498-AIPC. ( 8 ) P. W. 6 is the younger brother of P. W.. He was present when the marriage of the deceased with A-1 was fixed. Speaking to the terms under which the said marriage was fixed, P. W. 6 in his evidence says thus: "there was no demand for anything in the marriage from the accused's side. Neither at the time of completing formalities before settlement of the marriage or at the time of marriage there was no demand of cash or any particular articles from the side of the accused. " This is also admitted by P. W. I in his evidence. Thus at the time of the marriage there was no demand for any dowry or cash or any articles from the side of the accused. At this juncture it is appropriate to extract Sec. 304-B of the Indian Penal Code, which reads as follows: section 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. (2) Whoever commits its 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. "( 9 ) THOUGH the word 'dowry occurring in Section 304-B of the Indian Penal code is not defined therein, it is shown that for the purpose of Section 304-B of the Indian Penal Code the words 'dowry' shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961. The word 'dowry' is defined as follows in Section 2 of the Dowry Prohibition Act: 2. Definition of 'dowry':- in this Act, "dowry" means any property or valuable security given or agreed to be given either directly or indirectly - (a) by one party to a marriage to the other party to the marriage; or (b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (shariat) applies. (emphasis supplied)( 10 ) THUS unless any property or valuable security given or agreed to be given either directly or indirectly by one party to the other party to the marriage or by parents of either party to a marriage or by any other person to either party to the marriage or to any other person at or before or any time after the marriage in connection with the marriage of the said parties the same shall not be treated as dowry. Thus it is significant to note that unless any property or valuable security given or agreed to be given directly or indirectly at or before or any time after the marriage in connection with the marriage of the said parties, the same shall not be treated as a dowry. The evidence of P. W. I clearly shows that at the time of the marriage there was no arrangement to give anything either cash or any article as dowry. Consequently this is not a case attracting the provisions of Section 304-B of the Indian Penal Code. ( 11 ) IT is now to be seen whether this is a case of subjecting the deceased to cruelty within the meaning of Section 498-A of the Indian Penal Code and a case of abetting the suicide of the deceased attracting the provisions of Section 306 of IPC. ( 12 ) BEFORE proceeding further it is to be noted that Crl. Appeal No. 42/92 is an appeal against acquittal and a Criminal Revision Case No. 72/91 is a revision. In an appeal against acquittal unless the conclusions reached by the trial Court are palpably wrong or based on erroneous authority of law or that the decision is likely to result in grave injustice, the High Court should be reluctant to interfere with the conclusions. If two reasonable conclusions can be reached on the basis of the evidence on record, then the view in support of the acquittal of the accused should be preferred. The fact that the High court is inclined to take a different view of the evidence on record is not sufficient to interfere with the order of acquittal. Vide Ram Jag vs. State of U. P. and G. B. Patel vs. State of maharastra. Bearing these principles in mind the evidence on record has to be appreciated.( 13 ) P. W. 3 in her evidence says that the deceased was complaining to her that a-1 used to come to the house late in the nights that is about 2. 00 a. m. having illegal contacts with so many girls and when the deceased objected, A-l used to beat her. P. W. 4 is no other than the daughter of P. Ws. 1 and 3 and the younger sister of the deceased. She also says that the deceased was complaining that a-l used to come home late in the nights and when the deceased objected A-l used to beat her. P. W. 5 is a close friend of the deceased. She also supports the evidence of P. Ws. 3 and 4 on this aspect. But P. W. I who is no other than the father of the deceased did not mention anything about this aspect in Ex. P-1. P. W. 6 the younger brother of P. W. I and P. W. 7 also did not say that at any time either the deceased or her relations, namely, P. Ws. 1,3 or 4 complained that the deceased was coming home late and when questioned by the deceased he was assaulting the deceased. This aspect of the case was not mentioned in Ex. P-1 a report given by P. W. I on the next day after the death of the deceased or in ex. P-4 the undated letter written by the deceased to P. W. 5. Sri Ella Reddy, advocate appearing for the defacto-complainant and the learned Public prosecutor submit that by and large the parents will be slow to complain against the son-in-law and that such complaints will be given only when there was no possibility of any reconciliation between the wife and husband and it is further submitted that since no complaint was made earlier, it cannot be taken that the averment made in Ex. P-1 are incorrect. They further submit that social offences like dowry deaths cannot be allowed to go scot free and stringent punishment be given to the culprits. It is true that no person who has committed any crime should be permitted to go scot free more particularly in a social and heinous crime like dowry death. But sufficient care should be taken that innocent people should not be made to suffer due to private vindicta. ( 14 ) IT is to be seen that coming home late in the nights due to girl friends prima facie cannot be taken as cruelty within the meaning of Section 498-A of the Indian Penal Code. Of course, if the evidence shows that when the wife questions the husband about the same and if the husband were to assault the wife definitely it has to be treated as cruelty within the meaning of Sec. 498-A IPC. In Jagdish Chander vs. State of Haryana Punjab and Haryana High Court held that where the husband was taking liquor daily and was coming home late in spite of constant protests from the wife does not constitute cruelty within the meaning of Section 498-A of IPC. Similary in P. Bikshapathi vs. State of Andhra pradesh it was observed that taking drinks and coming home late much against the will of the wife may not per se amount to cruelty. So I am of the clear opinion that coming home late even due to girl friends by itself does not constitute cruelty within the meaning of Section 498-A IPC. But in this case in view of the averments in Ex. P-1 which was given one day after the death of the deceased wherein no allegations were made of this type against the accused, I am of the clear opinion that the evidence adduced to show that A-1 was coming home late and when questioned he was assaulting the deceased cannot be accepted. Hence I am not inclined to accept the evidence adduced by the prosecution on this aspect. ( 15 ) P. W. 5 in her evidence says that the deceased complained to her that a-l was behaving as a sadist. Of course this aspect was not spoken to by any other witness including P. W. 4 who is no other than the-sister of the deceased. In the event of A-l behaving like a sadist though the deceased may not express the same to her parents, but definitely she would have informed the same to her younger sister P. W. 4. This aspect was not mentioned in Ex. P-1. As such I am not inclined to accept the evidence of P. W. 5 that A-l was behaving as a sadist.( 16 ) SIMILARLY P. W. 3 in her evidence says that she was informed by the deceased that A-2 and A-3 told her that they will get A-l married to another girl unless the request for more dowry is conceded. This evidence of P. W. 3 is not corroborated by any other witness. e. , P. Ws. 1,4 or 5. As a matter of fact, no mention was made about this aspect even in Ex. P-1 which was given one day after the death of the deceased. Similarly in Ex. P-4 letter which was written by the deceased to her close friend P. W. 5 nowhere it was complained that A-2 and a-3 were threatening to marry A-l with another girl for more dowry. In view of these circumstances the evidence of P. W. 3 that the deceased was threatened by A-2 and A-3 to marry A-l with another girl unless their demand for more dowry is conceded cannot be accepted. ( 17 ) TO show that the deceased was physically assaulted reliance is placed on the evidence of P. W. 4. P. W. 4 in her evidence says that on 6-7-1987 she went to the house of the accused and requested that the deceased be sent to her (parental) house enabling her to attend the birth day of P. W. 3, accused did not agree, while P. W. 4 was talking to the deceased in a room, A-l entered the said room, abused the deceased and P. W. 4 and when the deceased objected she was beatenj by A-l. This aspect was not spoken to by any other witness no mention either in Ex. P-1 or in Ex. P-4 was made. Hence I am not inclined to place any reliance on this evidence to show that the deceased was physically assaulted at any time by A-l. ( 18 ) P. W. 1 in his evidence says that A-2 demanded to give one tola of gold to a-l on the occasion of Deepavali and the accused also demanded to give a refrigerator, scooter, almyrah and water filter. P. W. 1 did not mention about the same in Ex. P-1. Similarly no mention was made about the same in Ex. P-4. In the event of the deceased making such demands, one expects the deceased to write about the same to her close friend P. W. 5. The evidence of P. Ws. 3 and 4 is silent on this aspect. P. W. 5 in her evidence says that the deceased informed her that the accused were demanding for a fridge, scooter and almyrah about Ex. P-4 which has emanated from the deceased is silent about the same. In view of these circumstances and since no panchayat was ever held by P. W. I disputing the accused that they were unnecessarily making demands for articles which were never agreed to be given the lower Court did not inclined to accept the evidence of the witness to show that any articles like fridge etc. , were demanded by the accused. Since this being an appeal against acquittal and since the lower Court did not incline to accept the evidence of the prosecution witnesses examined in this behalf for valid reasons, it is not desirable that the appellate Court should come to a different conclusion when the appeal is one against acquittal as per the guidelines mentioned by the Supreme Court referred to above. ( 19 ) IN view of these circumstances, finding no merits the criminal appeal filed by the State is dismissed and similarly criminal revision petition filed by p. W. 1 the defacto complainant is also dismissed.
"1994 (1) Andhwr 524" == "1993 (2) Crimes 139"