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there is only demand for payment of Rs.10,000/- and fan by A1, but there is no evidence to establish the harassment caused by A1 to the deceased in connection with the demand for payment of the said Rs.10,000/- and fan. Therefore, the prosecution could not establish that soon before the death of the deceased, she was subjected to cruelty or harassment by the appellant in connection with the demand for dowry.

THE HON'BLE SRI JUSTICE P. DURGA PRASAD  CRIMINAL APPEAL No.327 of 2002 

15-07-2011 

Alakunta Yadaiah 

1.State of A.P.,through Public Prosecutor

COUNSEL FOR PETITIONER: Smt.Vasundhara Reddy.C 

COUNSEL FOR RESPONDENT :Public Prosecutor 

:JUDGMENT: 

This appeal is directed against the conviction and sentence passed by III-Additional District & Sessions Judge (FTC), at N.T.R. Nagar, L.B. Nagar,R.R.Dist, in S.C.No.351 of 1998, on 28.01.2002.The appellant and his parents who are A2 and A3 were prosecuted for offenceunder Section 304-B IPC, alleging that the appellant has married the daughter ofPW.1, by name Saidamma eight months prior to her death and at the time of marriage, PW.1 gave five tolas of gold, almirah, wrist watch, cycle, portabletelevision and net cash of Rs.1,500/- for purchase of cot. After marriage,Saidamma joined the appellant at Srinivas Nagar, Jagadgiri Gutta and they ledhappy marital life for about two months and thereafter, the appellant along withhis parents A2 and A3 started harassing the deceased for bringing net cash ofRs.15,000/- and a fan from her parents and harassing her, abusing her in filthylanguage. PW.1 and her husband held a panchayat in the presence of PWs.2 and 3 and PW.1 promised and assured A1 that they will arrange the net cash ofRs.10,000/- on 06.08.1997 and sent the deceased with the accused No.1 and his sister Anjamma, and even then the accused did not satisfy and continued toharass the deceased and as there is no change in the attitude of the accused,the deceased poured kerosene and set fire to herself in her in-laws house atSrinivas Nagar, Jagadgiri Gutta on 03.08.1997 at 6.00 P.M and died on the spot.On receipt of the information, PW.1 and her husband had gone to Jagadgiri Guttaand lodged complaint with the police. The police, after investigation, filedcharge sheet against the accused and A2 and A3 for offence under Section 304-B IPC.The learned Sessions Judge framed charge under Section 304-B IPC against all theaccused and all the accused pleaded not guilty for the said charge.The prosecution, in order to establish the said charge, examined 11 witnessesi.e. PWs.1 to 11 and got marked Exs.P1 to P13 and MOs.1 and 2. On behalf of the accused, DW.1 was examined and Exs.D1 and D2 were marked. The learned Sessions Judge, by taking into consideration the said oral anddocumentary evidence, found A1 guilty for the offence under Section 304-B IPCand convicted and sentenced to undergo rigorous imprisonment for 7 years, and A2and A3 were found not guilty and acquitted. Aggrieved by the said convictionand sentence, the accused No.1 has filed the present appeal.Now the point that arises for consideration is whether the prosecution couldable to establish the charge under Section 304-B IPC against the appellant/A1.The counsel who has filed the appeal on behalf of the appellant did notrepresent the matter in spite of giving several opportunities and thereby, anon-bailable warrant has been issued for the production of the accused and onproduction, the accused has stated that he has no capacity to engage an advocateand a counsel may be appointed for arguing his case. Hence, Smt.Vasundhara Reddy.C was appointed as legal aid counsel to argue the appeal.Smt. Vasundhara Reddy, legal aid counsel, has pleaded that except the evidenceof PW.1, there is no other evidence on record to establish the demand made bythe accused for additional dowry and also harassment caused to the deceased by the accused. She further pleaded that even though PWs.2 and 3 were cited asmediators, they were also not aware of the harassment caused by the accused to the deceased but they came to know about the same only through PW.1 and the evidence of PWs.2 and 3 is not consistent with regard to their holding themediation. The legal aid counsel has further pleaded that even though PW.1 hasstated that the accused demanded Rs.15,000/- and a fan and started harassingher, but the manner in which the deceased was harassed was not spoken by her except generally alleging harassment of the deceased. The learned counselfurther pleaded that since the prosecution could not establish the cruelty onthe part of the accused prior to the death of the deceased, the appellant cannotbe convicted for the offence under Section 304-B of IPC.The Additional Public Prosecutor has pleaded that since the harassment hascaused within the house of the in-laws of the deceased, there will not be anyeye witness to the alleged incident, and PW.1 has come to know about theharassment through the deceased and as such the evidence of PW.1 has to be relied upon and the circumstantial evidence of PWs.2 and 3 supported the versionof PW.1 with regard to the harassment and demand of Rs.15,000/- and a fan by theaccused. She further pleaded that since the deceased committed suicide within 7years of her marriage, and prior to her death there is harassment in connectionwith the demand for additional dowry, the prosecution could able to establishthe offence under Section 304-B IPC, and the learned Sessions Judge has rightlyconvicted the appellant and the said conviction does not warrant anyinterference by this appellate Court.According to the prosecution, the marriage of the deceased took place with A1eight months prior to her death, and at the time of marriage, PW.1 and herhusband has presented five tolas of gold, one almirah, one cycle, one portabletelevision, wrist watch and other house-hold articles and also gave net cash ofRs.1,500/- for purchasing a cot, and after the deceased joined the company of A1at her in-laws house at Srinivas Nagar, Jagadgiri Gutta, they lived happily fortwo months and thereafter the accused No.1 and his parents started harassing thedeceased for bringing additional dowry of Rs.15,000/- and a fan and abused herin filthy language and as she could not tolerate the harassment, she came to herparents house and informed the same to PW.1 and PW.1 held mediation in the presence of PWs.2 and 3 and they pacified the matter as PW.1 agreed to pay an amount of Rs.10,000/- by 06.08.1997 and give the fan as demanded by them, and sent the deceased along with A1 to his house. But before 06.08.1997, theaccused again started harassing the deceased as such the deceased committed suicide on 03.08.1997 at 6.00 P.M. by pouring kerosene and setting fire toherself at in-laws house at Jagadgiri Gutta.In order to establish the charge under Section 304-B IPC, the prosecution has toestablish that:i. The death of a woman must have been caused by burns or bodily injury orotherwise than under normal circumstances; ii. Such death must have occurred within seven years of her marriage;iii. Soon before her death, the woman must have been subjected to cruelty orharassment by her husband or by relatives of her husband;iv. Such cruelty or harassment must be for or in connection with demand ofdowry.In the present case, the deceased died due to burn injuries and eye witnessesPWs.4 and 5 have categorically stated that while they were playing gilli-dandain the ground near to the house of the accused at about 4 or 5 PM, sister of A1came out of her house crying "burning, burning", and then they rushed to thehouse of the accused and found the deceased Saidamma was burning in the house in the flames, and that they put out the flames by covering a bed sheet on Saidammaand made her to lie on the floor. Soon after, Saidamma died. But the defencecounsel tried to establish that the burn injuries sustained by the deceased wasaccidental, by putting a suggestion to them that at the time they went into thehouse of the accused, they found kerosene stove burning with a milk vessel onit. In support of the said suggestion, there is no other evidence to establishthat the burn injuries sustained by the deceased is accidental. PW.6-themediator for the scene of offence has stated that the inspector of police hadseized a kerosene stove MO.1 from the scene of offence. The mediator for theinquest-PW.7 also opined that the deceased died due to burn injuries. PW.8-Mandal Revenue Officer who conducted the inquest has also recorded the opinionof the mediators as the deceased died due to burn injuries. PW.10-the Doctorwho conducted autopsy on the deceased Saidamma had opined that the deceased died due to shock consequent to the burn injuries. Thus, the prosecution hasestablished that the death of the deceased, Saidamma was due to burn injuries,and she committed suicide. The appellant's counsel has not disputed about the death of the deceased withinseven years of her marriage and the evidence of PWs.1, 2 and 3 also establishthat the death of the deceased occurred within seven years of her marriage.The next point to be established by the prosecution is that soon before thedeath of Saidamma, she was subjected to cruelty or harassment by the accused in connection with demand for additional dowry.According to the prosecution, the accused demanded Rs.15,000/- towards additional dowry and a fan and started harassing the deceased in thatconnection, and as she could not tolerate the harassment, she committed suicideby pouring kerosene and setting fire to herself. PW.1-the mother of he deceasedhas stated about the giving of gold ornaments, cash of Rs.15,000/-, one cycle,one television, one wrist watch and other house-hold articles at the time ofmarriage. According to her, they lived happily for two months and thereafter A1demanded her daughter to bring Rs.10,000/- more and started harassing and ill-treated her, and her daughter informed her about the demand made by A1 and she informed her daughter that she will give Rs.10,000/- and a ceiling fan aftergetting the chit amount and according to her, A1 came to her house to take herdaughter back to his house and that her daughter did not agree to go with himstating that A1 was harassing her and that she asked A1 to bring his father ormother and then only she will send her daughter, but A1 brought his sisterAnjamma along with her husband and she told A1 and his sister and brother-in-lawnot to harass and ill treat her daughter and she will give the money and fanafter getting the chit amount and the said talks took place in the presence ofPochamma, Yadamma and Satyanarayana who are her neighbours, and that A1 and his sister and brother-in-law took the deceased with them after agreeing to herrequest and it happened about ten days prior to the death of her daughter.After ten days, she received information about the death of her daughter. Inthe cross-examination, she has stated that she got mentioned in Ex.P1 that shegave Rs.15,000/- to A1 prior to the date of marriage and also stated the samebefore the police and she admitted that her daughter visited her house severaltimes after she went to the house of A1 and whenever her daughter came to herhouse, A1 used to come and take her to his house, and she used to stay in herhouse for two or three days, and that she stayed for ten days when she lastvisited her house. She admitted that she did not state before the police thather daughter came to her house and that her husband, father-in-law and mother-in-law together demanded Rs.15,000/-, as mentioned in Ex.D2. She did not raiseany dispute before the elders about the demand of Rs.10,000/- and fan by theaccused. PW.1 has lodged the complaint with the police which was marked as Ex.P1 and in the said complaint she has not mentioned about payment of Rs.15,000/- at the time of marriage as dowry but she has only stated aboutgiving five tolas of gold, one wrist watch, one cycle and one portabletelevision and house-hold articles but paid Rs.1,500/- for purchasing of cot.It is also further stated that the accused and his parents demanded the deceasedto get Rs.15,000/- and fan from her parents. When her daughter came to herhouse, D.Satyanarayana and Yadamma have pacified A1 and his sister and brother- in-law stating that Rs.10,000/- and fan will be sent by 06.08.1997, andthereafter the deceased committed suicide on 03.08.1997. Therefore, accordingto PW.1 and the Ex.P1, D.Satyanarayana and Yadamma has held mediation with regard to demanding of Rs.15,000/- and a fan by the accused and pacified A1 andhis sister and brother-in-law stating that PW.1 will pay Rs.10,000/- and sendfan by 06.08.1997 and made the deceased go along with the accused. The said Satyanarayana was examined as PW.2 and he has stated that ten days prior to the death of Saidamma, PW1 and her husband told him that in-laws oftheir daughter Saidamma demanded her Rs.10,000/-. At that time, Yadamma and Pochamma, the members of Mahila Mandali were present, and one lady on behalf of in-laws also came and we told the parents of the deceased and the lady that cameon behalf of the deceased Saidamma that they have to adjust among themselves and live. At that time none of the accused were present. PW.1 and her husband toldthat they will send the amount after receiving the chit amount and then theywent away and later he came to know that Saidamma went to her in-laws house and after ten days thereafter Saidamma died by pouring kerosene and setting fire toherself. In the cross-examination, he has stated that he is an elder in thatBasti and PW1 and her husband and a woman on behalf of the accused came to his house. He came to know that the dispute arose with regard to money between the parties. The deceased Saidamma did not come to the house along with parents on that day. He do not remember the month, day or week on which PW1, her husband and another woman came to his house. The other witness Pochamma-PW3 has stated that she is the General Secretary of Rani Rudramma Devi Mahila Mandali at Patigadda. She knows the deceased Saidamma, PWs.1 and 2 and the accused. Saidamma died about four years back due to burn injuries. About a week prior to the death of Saidamma, PW.1 came to himand PW.2 and Yadamma and informed that the accused are demanding money and asked to tell them to adjust. A1 and his sister Anjamma demanded Rs.10,000/- cash andfan. PW.1 has stated that she will get the chit amount within ten days and sendthe amount and the fan thereafter. So they asked A1 and his sister that PW.1will send the amount and fan within ten days and asked them to go and Saidamma was taken to the house of the accused. After ten days they received phone callthat Saidamma died. In the cross-examination she has stated that she did notremember the date and the day or month in which the dispute was raised beforethem. Herself, Yadamma and PW.2 went to the house of PW.1 for settlement of the dispute. She did not state before the police that A1 demanded Rs.10,000/- cashand fan in their presence at the time of dispute. Therefore, PW.2 has statedthat PW.1 and her husband and a woman came to his house for settlement of the dispute, but whereas PW3 has stated that they themselves have gone to the house of PW1 for settling the dispute. Even though PW.3 has stated that A1 thoughdemanded Rs.10,000/- cash and fan in her presence, she admitted that she did notstate the same before the police. Moreover, PW.2 has specifically stated in thechief examination itself that none of the accused were present when thediscussion took place in his presence. Therefore, PW.2 only stated about PW.1informing about the demand made by the in-laws of the deceased Saidamma and he did not state that sister of A1 was present along with PW.1 at that time,whereas PW.3 has stated that A1 and his sister was present at the time ofsettlement of the dispute. Therefore, the evidence of PWs.2 and 3 is notconsistent with regard to their mediating the dispute between the accused andthe deceased. Moreover the deceased was not present at the time of the saidmediation to speak about the demand made by the accused and also about the harassment caused to her by the accused. Moreover, PWs.2 and 3 could not able to state the date, day or month in which the said mediation has taken place. Asadmitted by PWs.2 and 3, they are the neighbours of PW.1 and they have gone to the police station along with PW.1 at the time of lodging the complaint.Therefore, they are interested witnesses to the case of the prosecution and theyare not independent witnesses. Moreover, as observed above, their evidence willnot establish the demand made by the accused for additional dowry and fan andabout settling the dispute by mediation.Except the evidence of PW.1, there is no other evidence to support theharassment caused by the accused to the deceased. PW.1, who is the mother of the deceased has only stated that her daughter informed her that the accused aredemanding Rs.10,000/- and a ceiling fan. But she did not state that herdaughter informed her about the harassment and ill treatment caused by theaccused to her. Moreover, except the general allegation of harassment and illtreatment, no specific instance of the accused harassing the deceased was spokenby PW.1. Moreover, PW.1 has admitted in the cross-examination that whenever her daughter used to come to her house, A1 used to come and take her back to his house; and it is not the case of PW.1 that her daughter used to come to herhouse as she could not tolerate the harassment caused by the accused in connection with the demand for additional dowry of Rs.10,000/- and fan. Even ifthe sole evidence of PW.1 is accepted, it only establishes the demand made bythe accused for payment of Rs.10,000/- and fan and it has not established theharassment caused by the deceased in connection with the demand for the said additional amount of dowry and a fan.In Yallamanda Chand Basha and others v. State of A.P.1, the Division Bench ofthis Court has held that, mere making of demand of amounts, unless followed byan element of cruelty or harassment, does not attract the provisions of Section304-B IPC. The Division Bench also observed in the above said decision thatneither in Ex.P1-complaint nor in his deposition as PW.1 in the Court, hadmentioned any acts of cruelty or harassment and it is only evident that theappellant has been demanding the amount from time to time. In the present case, as already observed above, there is only demand for paymentof Rs.10,000/- and fan by A1, but there is no evidence to establish theharassment caused by A1 to the deceased in connection with the demand for payment of the said Rs.10,000/- and fan. Therefore, the prosecution could notestablish that soon before the death of the deceased, she was subjected tocruelty or harassment by the appellant in connection with the demand for dowry.The lower Court, by relying upon the evidence of PWs.1 to 3, has come to theconclusion that the prosecution could able to establish the offence against theaccused No.1. The said finding of the learned Sessions Judge does not hold goodas he himself has observed that the other accused A2 and A3 who are the parentsof A1 have not subjected the deceased to cruelty or harassment soon before herdeath. It is the case of the prosecution that A1 to A3 have demanded forRs.15,000/- and a fan from the deceased, to be brought by her from her parentsand harassed her and ill treated her and as she could not tolerate the saidharassment, she committed suicide by pouring kerosene and setting fire toherself. Therefore, according to the prosecution, all the accused are involvedin the commission of the harassment of the deceased in connection with thedemand for additional dowry. When the learned Sessions Judge observed that theother accused A2 and A3 have not subjected the deceased to cruelty or harassment soon before her death, it cannot be said that A1 alone has caused cruelty orharassment to the deceased soon before her death. Therefore, in the abovecircumstances, I hold that the prosecution has failed to establish the chargesframed under Section 304-B IPC against the accused beyond reasonable doubt. In the result, the appeal is allowed and the conviction and sentence passed bythe learned III-Additional District and Sessions Judge (FTC), at N.T.R. Nagar,L.B.Nagar, Ranga Reddy District in S.C.No.351 of 1998, on 28.01.2002, is herebyset aside and the appellant/A1 is acquitted of the charge under Section 304-BIPC.

?1 2008(2) ALT (Crl.) 113

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