IN THE COURT OF SESSIONS JUDGE, MAHILA COURT,
VIJAYAWADA.
PRESENT: - KUM. C.YAMINI,
SESSIONS JUDGE, MAHILA COURT, VIJAYAWADA.
Tuesday, this the 25th day of April, 2017.
SESSIONS CASE No.262/2014
(P.R.C.No.45 of 2013 on the file of the court of I-Addl.
Chief Metropolitan Magistrate, Vijayawada)
1.Name of the 1. Kolli Ajay Ramakanth, S/o Durga accused Prasad, Age 31 years, Kamma, Vinay Apartments, Flat No.17, 4th floor, Gayatrinagar, Vijayawada.
2. Kolli Nirmala, W/o Durga Prasad, Age 58 years, Kamma, Vinay Apartments, Flat No.17, 4th floor, Gayatrinagar, Vijayawada.
2. Charges U/s. 498-A, 306, 304-B IPC and U/s. 3 & 4 of Dowry Prohibition Act against A.1. U/s. 498-A r/w. 34 IPC, 306 r/w. 34 IPC and 304-B r/w. 34 IPC and U/s.3 of Dowry Prohibition Act r/w. 34 IPC and U/s. 4 of Dowry Prohibition Act r/w. 34 IPC against A.2.
3. Finding of the A.1 is acquitted U/s. 235(1) Cr.P.C. for the
Judge offences U/s. 304-B IPC and section 3 & 4 of
Dowry Prohibition Act and A.2 is acquitted under section 235(1) Cr.P.C. for the offence U/s. 304-B IPC r/w. 34 IPC, section 3 & 4 of Dowry Prohibition Act. A.1 is convicted U/s. 235(2) Cr.P.C., for the offence U/s. 498-A and 306 IPC and A.2 is convicted U/s. 498-A r/w. 34 IPC and 306 r/w. 34 IPC.
4. Sentence or order In the result, A.1 is acquitted U/s. 235(1) Cr.P.C. for the offences U/s. 304-B IPC and section 3 & 4 of Dowry Prohibition Act and A.2 is acquitted under section 235(1) Cr.P.C. for the offence U/s. 304-B IPC r/w. 34 IPC, section 3 & 4 of Dowry Prohibition Act. A.1 is convicted U/s. 235(2) Cr.P.C., for the offence U/s. 498-A and 306 IPC and A.2 is convicted U/s. 498-A r/w. 34 IPC and 306 r/w. 34 IPC.
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A.1 is sentenced to suffer R.I. for One year and shall pay a fine of Rs.100/- in default S.I. for 15 days for the offence U/s. 306 IPC and A.1 is sentenced to suffer R.I. for Six months and shall pay a fine of Rs.100/- in default S.I. for 15 days for the offence U/s. 498-A IPC and both the sentences shall run concurrently. A.2 is sentenced to suffer R.I. for One year and shall pay a fine of Rs.100/- in default S.I. for 15 days for the offence U/s. 306 r/w. 34 IPC and further sentenced to suffer R.I. for Six months and shall pay a fine of Rs.100/- in default S.I. for 15 days for the offence U/s. 498- A r/w. 34 IPC and both the sentences shall run concurrently. M.O.1 Chunny pieces and unmarked worthless property if any shall be destroyed after the appeal time is over after confirming that no appeal is pending. The remand period if any shall be given set off U/s. 428 Cr.P.C. The bail bonds of the accused shall stand cancelled. 5.Prosecution Addl. Public Prosecutor, Sessions Judge‟s conducted By: Court, Vijayawada. 6.Name of the Sri N.Durga Prasad, Advocate. Advocate for accused.
7. Cr.No. & Name of Cr.No.35/2013 of Machavaram Police the Police station. Station, Vijayawada.
8. PRC No. & Name of I-Addl. Chief Metropolitan Magistrate the Committal Court Court, Vijayawada in PRC.No.45/2013
J U D G M E N T
The Assistant Commissioner of Police, Central Zone,
Vijayawada City filed charge sheet against both the accused for the offences U/s.498-A, 306, 304-B r/w 34 IPC and Sections 3 and 4 of Dowry prohibition Act in Crime No.35/2013 of
Machavaram Police Station, Vijayawada City.
2) The brief facts of the prosecution case as per charge sheet is that the marriage between the deceased and A.1 has been solemnized on 8.10.2008 at Autonagar Association Hall, 3
Vijayawada and at the time of marriage the P.Ws.1 and 2 ie., parents of deceased gave Ac.7.00 of land and 65 sovereigns of gold to the deceased in connection with the marriage of A.1 and deceased in addition to marriage expenses to the accused and at the time of marriage, the accused stated that A.1 is working as a software Engineer and getting Rs.1 Lakh as salary, but after the marriage it came to know that A1 has no job. A.1 and deceased led marital life happily for some time, due to legal wedlock between A1 and the deceased a female child by name Sloka aged about 3 years was born and after birth of child to A.1, A.2 used to harass, humiliate and taunt the deceased to comply the unlawful demand of additional dowry. A.1 addicted to drinking and subjected the deceased to mental and physical cruelty to bring additional dowry from her parents with active support and instigation of A.2 and on one occasion, A.1 brought the deceased to the house of P.W.1 and left at his house and when the deceased parents failed to fulfill the unlawful demand of
additional dowry P.W.1 gave some amount and send back the
deceased to the matrimonial home. But the accused did not change their attitude and renewed their unlawful demand of
additional dowry. Thereafter, P.W.1 paid an amount of Rs.5
lakhs to the accused during the month of January, 2013 and
P.W.1 registered Ac.0-96 cents land in the presence of P.W.6 and in that connection, A.1 ill-treated and harassed the deceased on the ground that P.W.1 not got it registered the land on his name and the accused subjected the deceased to mental and physical cruelty after paying Rs.5 Lakhs additional dowry to the accused 4 and registering land on the name of the deceased. The deceased informed the cruel treatment of accused to P.W.1 on 18.1.13 and on 19.1.2013 morning, the accused beat, harassed and humiliated the deceased for failure to fulfill their unlawful demand of additional dowry. The deceased made a phone to
P.W.1 on 19.1.2013 at about 11.00 a.m., and informed the same and thereby the deceased perplexed with the cruel acts of the accused and that the accused would not stop their harassment inspite of paying huge amount of dowry to them and the harassment would be continued in her life time and made up mind to do away her life and in pursuance of her pre determined mind to do away her life, on 19.1.2013 committed suicide by hanging to the ceiling fan with the circumstances created by the accused by their willful conduct to drive her to commit suicide and on receipt of information, L.Ws.4 to 6 rushed to the house of deceased and found the dead body of the deceased and on 19.1.2013 P.W.1 came to the Police Station and presented report and on receipt of report the investigation officer investigated the crime by examining the witnesses and by observing the scene of offence and the M.E.M, held inquest over the dead body of the deceased and the doctor conducted post mortem examination and after receipt of final opinion and after arrest of accused the investigation officer filed charge sheet against the accused.
3) The I-Addl. Chief Metropolitan Magistrate, Vijayawada
before whom charge sheet is filed furnished copies to the
accused as required U/s. 207 Cr.P.C. and committed the case to 5 the Metropolitan Sessions Judge, Vijayawada by following the procedure laid down U/s. 209 Cr.P.C.
4) The Metropolitan Sessions Judge, after taking the case on file committed the case to this court for disposal according to law. After appearance of accused and on hearing, charges U/s. 498-A, 306, 304-B IPC and U/s. 3 & 4 of Dowry
Prohibition Act are framed against A.1 and charges U/s. 498-A r/w. 34 IPC, 306 r/w. 34 IPC and 304-B r/w. 34 IPC and U/s.3 of
Dowry Prohibition Act r/w. 34 IPC and U/s. 4 of Dowry Prohibition
Act r/w. 34 IPC are framed against A.2 and read over the said charges and explained to them in Telugu for which they pleaded not guilty and claimed to be tried.
5) In order to prove its case, prosecution examined
P.Ws.1 to 13 and got marked Exs.P.1 to P.17 and M.O.1.
6) After closure of prosecution evidence the accused are examined U/s. 313 Cr.P.C., from the incriminating material found against them in the evidence of prosecution witnesses and they denied the same.
7) On behalf of the accused D.Ws.1 & 2 are examined and got marked Exs.D1 and D2.
8) Now, the points that arise for consideration are:
(i) Whether the prosecution is able to bring home the guilt of A.1 for the offence U/s. 498-A IPC beyond reasonable doubt?
(ii) Whether the prosecution is able to bring home the guilt of A.2 for the offence U/s. 498-A r/w. 34 IPC beyond reasonable doubt?
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(iii) Whether the prosecution is able to bring home the guilt of A.1 for the offence U/s. 306 IPC beyond reasonable doubt?
(iv) Whether the prosecution is able to bring home the guilt of A.2 for the offence U/s. 306 r/w. 34 IPC beyond reasonable doubt?
(v) Whether the prosecution is able to bring home the guilt of A.1 for the offence U/s. 304-B IPC beyond reasonable doubt?
(vi) Whether the prosecution is able to bring home the guilt of A.2 for the offence U/s. 304-B r/w. 34 IPC beyond reasonable doubt?
(vii) Whether the prosecution is able to bring home the guilt of A.1 for the offence U/s. 3 of Dowry Prohibition Act beyond reasonable doubt?
(viii) Whether the prosecution is able to bring home the guilt of A.2 for the offence U/s. 3 of Dowry Prohibition Act r/w. 34 IPC beyond reasonable doubt?
(ix) Whether the prosecution is able to bring home the guilt of A.1 for the offence U/s. 4 of Dowry Prohibition Act beyond reasonable doubt?
(x) Whether the prosecution is able to bring home the guilt of A.2 for the offence U/s. 4 of Dowry Prohibition Act r/w. 34 IPC beyond reasonable doubt?
POINT Nos. (i) & (x):-
9) Since point Nos. (i) & (x) are interrelated, they are dealt together.
10) Learned Addl. Public Prosecutor contended that prosecution established that the death of the deceased is caused other than the natural circumstances within 10 years of her marriage and soon before the death of the deceased she was subjected to cruelty by both accused in connection with dowry 7 and thereby the prosecution proved the ingredients U/s. 304-B
IPC. To substantiate his contention he relied on the decisions reported in:
1) (2012)11 SCC. 397
2) 2011(2) ALD (Crl.) 469 A.P.
11) The learned counsel for the accused filed written arguments and the main gist is that
NO DOWRY AGREEMENT AT THE TIME OF MARRIAGE
ALLIANCE IN BETWEEN THE ACCUSWED AND P.W.1:
a) It is submitted that, p.w.1 mentioned in the Ex.P.1 report that at the time of marriage, he gave 4 acres of land and 65 sovereigns of gold arguments to his deceased daughter towards her pasupukumkuma. Thereafter, he gave 2 acres of land and also later 1 acre of land to her which totally 7 acres of land towards her pasupukumkuma. Further, he gave some amount to the A1 towards marriage expenses.
b) In the evidence, P.W.1 stated that he gave the total 7 acres of land and 65 sovereigns of gold to both the accused and
Rs.10 lakhs cash to the both the accused and father of A1.
c) But, P.W.1, never stated either in Ex.P1, P2 or in 161
Cr.P.C statements that the land and gold ornaments agave to both accused and also did not state that Rs.10 lakhs cash given to the both accused and father of A1. As such the same is a material omission and which amounts to a contradiction.
d) However, in cross examination, P.W.1 admitted that he gifted 7 acres of land each to each of his daughters and requested them to get it registered and his other two daughters got register after their marriage and his deceased daughter did not got it registered.
e) The Ex.P.1 report coupled with admission of PW1 reveals that the P.W1 voluntarily intending to gift 7 acres of land to his deceased daughter like his elder daughters. That too P.W.1 clearly mentioned in Ex.P1 that the land and gold ornaments 8 given to the deceased towards her pasupukumkuma and also he stated in Ex.P1 that some amount given to the A1 towards marriage expenses. As such the said voluntarily and customary presentations are not come under the purview of the dowry.
Here it is grate significant to note the according to PW.1 admission, he did not transfer the said Ac.7-00 cents to his diseased daughter till her death except 0-96 cents on 10-01- 2013. In view of his admission, PW.1 gave total Ac.7 of land towards pasupukunkama, he is far away from the truth.
f) In view of the above, the accused relying upon the citation which was reported in 2007(1) ALD (Crl.) 1024 AP wherein, it was held that no agreement between parties to the marriage with regard to dowry in absence of any agreement to pay dowry or at after time of marriage, it cannot be said that husband harassed and demanded deceased to bring dowry in connection with the marriage from her parents – demand for amount after marriage will not fall within the meaning of dowry even if all to her requirements of Sec.304(B) satisfied.
ELDERS WERE NOT EXAMINED:
g) P.W.1 deposed in his evidence that he raised the issue of his deceased daughter before the elder viz., Krishna and the elders convinced A1 and again accused repeated the same and on that he along with one Venkataratnam, Krishna and father of
A1 convinced by paying Rs.5 lakhs to both the accused.
h) But the PW1 never stated in Ex.P1 report about the said incident and participation of elders and payment of Rs.5 lakhs.
In their presence Further, he did not mention the said facts in his statement i.e. Ex.P2 recorded by the Deputy Tahsildar (PW10) during inquest. Whereas, he stated in 161 Cr.P.C. statements that he discussed the matter before the elders and not mentioned their names.
i) In view of the same, PW1 raised the issue before the elders and payment of Rs.5 lakhs to both the accused by convincing father of A1 in the presence of elders one
Venkataratnam and Krishna which was deposed by the PW1 in 9 his evidence is nothing but material omission and cannot be taken into consideration.
j) Further, the investigation officer PW12 categorically admitted that he did not examine any elder either at the time of fixation of the marriage and the elders who participated in the mediation with the accused. If really any mediation took place in the presence of alleged elders Venkataratnam and Krishna, PW1 would reveal the same in the Ex.P1 report and also the Ex.P2 statement. As such the payment of amount of Rs.5 lakhs to the both accused in the presence of elders viz., Venkataratnam and
Krishna is nothing but improvement Moreover, the alleged elders were not cited as a witnesses and thereby failed to examine the said elders as a witnesses to prove the contention of the PW.1.
k) In view of the above the harassment for additional dowry subsequent to the marriage by the accused and the payment of
Rs.5 lakhs to the both accused is far away from the truth.
l) As such, adverse inference can be drawn against the
Prosecution case for non examination of material witnesses who are said to have been elders in the mediation.
m) On this aspect accused are relying upon the citation which was reported in 2009(1) ALD (Crl.) (5) A.P where in it was held that where the elders who participated in the mediation have to be cited as witnesses.
NO NEIGHBORS OR ANY INMATES OF ADJACENT FLATS
WERE NOT EXAMINED.
n) As per the prosecution case, the accused are demanding
additional dowry by harassing her by beating her and continued
the said harassment and on the date of alleged incident, that the accused beat, harassed and humiliated the deceased for failure to fulfill their unlawful demand of additional dowry and there by created by their willful conduct to drive the deceased to commit suicide.
o) PW.1 deposed in his evidence that his deceased daughter called over phone on 18-01-2013 stating that accused were beating her and asking her to die and his wife called him 10 over phone on 19-01-2013 informing that she was hearing sounds in the house of their deceased daughter and that they may be beating their deceased daughter.
p) But, PW1 never stated the said facts of beating her deceased daughter and asking her to die and his wife P.W2 stated to him that she was hearing sounds in the house of deceased daughter and that there may be a beating their deceased daughter either in the Ex.P1 report or in the 161 Cr.P.C statement. Further, P.W1 did not state the same in Ex.P.2 which was recorded by the PW.10 during the inquest. As such the said facts are also material omission and cannot be taken into consideration.
q) If really any such type of incidents were happened in the marital home, the inmates of the adjacent flats have notice the same, as the marital home situated in fourth floor of Vinay
Apartments and the same is visible and hearable to other flats in the floor.
r) In this case, the investigation officer i.e., PW12 failed to examine them in order to cite the said witnesses in the charge sheet and thereby prosecution failed to examine the neighbourers or any inmates of adjacent flats of the marital home. In view of the same, no independent evidence to show the harassment of deceased by the accused for dowry.
Moreover, PW9 who conducted the post mortem of the deceased clearly admitted that except injury on neck i.e., ligature mark, no other injuries are found on the dead body of the deceased. As such the allegation of beating the deceased by A1 on the date of incident is false. As such the said omission of the PW.1 relating to the beating and harassment of the deceased by the accused is nothing but false and the same was invented for the purpose of case and evidence only.
s) On this aspect the accused are relying upon the citation which was reported in 2014(1) ALD (Crl.) 942 AP wherein it was held that no neighbor examined to establish dispute between accused husband and decseased soon before her death – 11 circumstances stated by the material witnesses do not point out guilty of accused by disclosing any proximity and link between cruelty based on dowry demand and death of deceased – not a fit case to draw presumption U/s 113(B) of evidence Act.
THERE ARE SO MANY OMISSIONS IN THE EVIDENC EOF
PW1 TO 4 AND CONTRADICTIONS IN THE EVIDENCE OF
PW4.
t) The Deputy Thasildar PW10 who recorded the earlier statements of the witnesses during the inquest of deceased and in the evidence of PW10 admitted that PW1 did not state ether in
Ex.P2 report that he gave 7 acres of and land 65 sovereigns of gold to both the accused and father of A1 and also PW1 did not state that he paid any cash to the accused at the time of marriage towards marriage expenses and also he did not state that he called A1 and convinced him and sent her deceased daughter and thereafter every 2 or 3 months accused continued the same by stating that they are asking his deceased daughter go out from the house by leaving her daughter and he along with one Venkataratnam Krishna and father of A1 convinced by paying
Rs.5 lakhs to both the accused and the accused did not send his deceased daughter for sankranthi festival and over phone her deceased daughter stated that A2 and others were beating and asking her to die and she also informed the same to his wife and on that he stated to her that they will come there on the next day and over phone his wife stating that she was hearing sounds in the house of their deceased daughter and that they may be beating their deceased daughter and the accused harassed her deceased daughter for not bringing cash instead of the land.
u) Further PW10 admitted that PW2 did not state in Ex.P4 statement recorded that they gave Rs.10 laksh cash to A1 towards marriage expenses on the date of marriage and so that they were convert into cash and also resisted her daughter to come to her house and A2 harassed her daughter that if the land is given on A1‟s name he might have discharged the debts and she also heard the shouts of both the accused and her deceased 12 daughter cried over phone and her deceased daughter further informed that when she want to come out the accused are not giving her child and PW2 asked her to come out and will bring her daughter subsequently and that A2 harassed that if deceased brought land how they can rotate the cash and PW2 heard the same over phone and while PW2 was speaking over the phone disconnected the same and on that due to fear she informed the same to her husband as she did not turn up phone subsequently.
v) Further PW10 admitted that PW3 did not state in Ex.,P5 statement that they paid marriage expenses of Rs.10 lakhs to A1 and her father paid additional dowry and she do not know its particulars and to her knowledge her father paid Rs.5 laksh and she came to know that her deceased sister was beaten by A1.
w) PW4 admitted that it is true that he did not state either in 161 Cr.P.C statement or in Ex.P6 statement recorded by PW10 that PW1 purchased lorries to A1 and used to pay the installments of lorries and at about 10 am PW2 telephoned to
PW1 and informed that A1 beating the deceased. But PW4 denied the contradictions which are D1 and D2 marked in the statement of PW4 ie., Ex.P6 and in view of the above omissions, it is clear that PW1 to 4 have developed their version in the evidence. Moreover, there is no corroboration in between the
PWs 1 to 4. Further PW.1 is the father and PW2 is mother .PW3 is the sister and PW4 is the maternal uncle of the deceased. As such they are nothing but interested witnesses and it requires some sort of corroboration by way of independent witnesses.
Except the testimony of PWs 1 to 4, there is absolutely nothing on record to establish the fact that there was harassment for dowry. Moreover, the testimony of PWs 1to 4 does not inspire any confidence. In view of the same their evidence cannot be taken into consideration.
x) On this aspect, the accused are relying upon the citation which was reported in 2009(1) ALD(Crl) 5 AP wherein it was held that every suicidal death of married woman within 7 years of marriage, cannot be held to be slowly due to dowry 13 harassment- to constitute offence, triple ingredients of section have to be satisfied – testimony of relative witnesses- though not unworthy of any credence on accused of their propinquity with deceased such evidence needs some sort of corroboration by some independent evidence- absolutely no independent evidence show harassment for dowry.
y) Further the contradictions in the statement of PW4 ie.,
Ex.P6 which is D1 reveals that when PW4 came to the house of accused, no one present in the house of the first instance on the date of alleged incident. Further D2 discloses that PW4 called
PW1 and others through phone to come to the accused house.
According to D1 the accused was not present at the scene of offence at the time of incident. Further according to D2 the PW4 alone visited the scene of offence at the first instance and then called PW12 and others. As such his evidence that on 19-01- 2013 PW1 along with PW4 and others went to the scene of offence is nothing but false.
NO HARASEMENT OF DOWRY BY THE ACCUSED SOON
BEFORE THE DEATH OF THE DECEASED:
z) As per the definition of “Dowry Death” in Section 304(B)
IPC and the wording in the presumptive Section 113(b) of the evidence Act, one of the essential ingredient amongst others, in both the provisions is that‟ the concerned woman must have been soon before her death” subject to cruelty or harassment “for or in connection with the demand of dowry.” aa) Section 2 of Dowry prohibition Act, 1961 defines “dowry” as under Section 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 mehr 14 in the case of persons to whom the Muslim personal Law (shariat) applies.
Explanation 1- for the removal of doubts it is hereby declare that any presents made at the time of marriage t the either party to the marriage in the form of cash, ornaments, clothes or other articles, shall not be deemed dowry within themeaning of section, unlessthey are mode as consideration for the marriage of the said parties.
Explanation 2- the expression “valuable security” as the same meaning in section 30 of the Indian Penal Code.
ab) As per the definition of the dowry any property or valuable security given or agreed to given to one party to a marriage to the other party to the marriage. But in this case
PW1 clearly stated in Ex.P1 report that he gave total 7 acres of land to the deceased daughter at the time of marriage towards pasupukunkuma. Further he presented 65 sovereigns of gold ornaments to his deceased daughter and also cash given to the accused No.1 for marriage expenses. As per the explanation-1 of the definition of the dowry, the presentation of gold ornaments and cash given to the accused for marriage expenses will not be treated as a dowry. Further according to the admission in the cross of PW1 that he intends to gift 7 acres of land to the deceased daughter likewise other daughters and he did not affect the registration of the same infavour of the deceased. In view of the above, 7 acres of land said to have been given his deceased daughter towards her pasupukunkuma was not come under purview of the definition of the dowry. Further there is no demand whatsoever by the accused party to insist any cash towards dowry at the time of marriage as a pre condition by the accused for marriage alliance. PW1 and nowhere mentioned either in the report Ex.P1 and PW2 or in 161 statement that the demand of Ac.7.00 of land and 65 sovereigns of gold ornaments as a pre condition to marry the deceased by the accused. As such it is clear that there is no dowry agreement in between the accused and PW1. If it is so, there is no question of demanding 15 or additional dowry whatever it may be by the accused does not arise and the death of the deceased towards dowry harassment by the accused also does not arise.
ac) In this case PW10 deposed that it is true that PW1 did not state before him ex.P1 that accused did not send his deceased daughter for Sankanthi festival but her deceased daughter called over phone on 18-01-2013 stating that A2 and others were beating her and asked her to die and she also informed the same to his wife and on that he stated to her that they will come there on the next day and on the date of incident at about 11am his wife called him over phone stating that she was hearing sounds in the house of her deceased daughter and that they may be beating their deceased daughter and they harassed their deceased daughter for not bringing cash instead of the land.
ad) PW10 deposed that thePW2 did not state before him in Ex.P3 that the accused one converted were convert into cash and also resisted her daughter to come to her house and that A2 harassed the deceased that if the land is given in A1‟s name he might have discharged the debts and A1 beat her deceased daughter and she started that both the accused are harassing her and she also heard the shouts of both the accused and their deceased daughter cried over phone and on that she stated to her that her husband will come and she further informed that when the deceased want to come out, they are not giving her child and PW2 asked her to come out and will bring her daughter subsequently and that A2 harassed that if deceased brought land how they can rotate the cash and heard the same over phone and while PW2 was speaking the phone disconnected and on that due to fear, PW2 informed the same to her husband as she did not turn up phone subsequently.
ae) PW10 deposed that it is true that PW3 did to state that both the accused disputed why that land was given in the name of her deceased sister without giving cash and she come to know that her deceased sister was beaten by A1.
16 af) The above said evidence of PWs.1 to 3 reveals the aspect of harassment soon before her death is entire omission.
They did not state the same in their earlier statements. They have exaggerated than their earlier version by adding improvements in order to show that the accused were harassed the deceased soon before her death. If, really any such type of harassment on the date of incident by the accused, the other inmates of the flats would heard the same. But, no inmates of the other flats were examined by the prosecution. Whereas, the accused have examined D.W1 and 2 who are inmates of the other flats in the same floor of the marital home and they deposed that the accused No.1 and the deceased were having cordial relations in their marital life and no disputes arose in between them at any point of time regarding dowry or whatever it ;may be and the evidence of D.W2 clearly establishes that the accused No.1 left the marital home at about 7 or 7.30 am and A2 is residing at Medarametla along with her husband during the said period and according to DW2 the deceased took her child at about 8 or 8.30 am on the date of incident to drop her child in the school and she returned after half an hour to the house. It shows that the A1 and A2 are not in the house at the time of incident and as such the question of harassment and beating by the accused does not arise.
CORDIAL RELATIONS IN BETWEEN A1 AND PW1 UP TO
THE DEATH OF THE DECEASED.
ag) It is submitted that the PW1 admitted that fathers of A1 used to run nava nirman engineering and he used to lend proclainer, lorries etc., and whenever A1 and his father business requires any repairs of the vehicles, he used got it repairs and as
A1 used to come to PW1 for his works, and he has touch with him than his other son in laws and A1 visited frequently ion view of above works. Further PW4 admitted that PW1 used to see A1 as his son. In view of the above, there is a good relationship in between PW1 and A1 till the death of the deceased. As such the 17 alleged demand of additional dowry and also harassment towards deceased by the accused is not at all possible.
PW4 ALONE WENT TO THE SCENE OF OFFENCE AT THE
FIRST INSTANCE.
ah) PW10 deposed that it is true that PW4 himself went to the scene of offence on the date of incident and observed nobody is there in the house and he made a phone call to PW1 and other to come to scene of offence. The same were marked as Ex.D1 and D2 in the statement of Ex.P6. According to the said contradictions it is clear that PW4 alone went to the scene of offence at the first instance.
ACCUSED WERE NOT PRESENT AT THE HOUSE ON THE
DATE OF INCIDENT.
ai) It is submitted that the 2nd accused is residing at
Medarametla of Prakasam District as her husband doing contract works at that place during the time of incident. The DW2 deposed that accused No.2 is residing at Medarametala. For that
DW2 deposed that accused No.1 left the house on the date of incident at about 7.00 or 7.30 am and the deceased alone in the house at the time of incident. In view of the same, accused were not present at the time of incident. As such the question of harassment towards the deceased does not arise.
NO EXTERNAL INJURIES ON THE BODY OF DECEASED.
ak) It is submitted that as per prosecution the accused beat the deceased on the date of incident in order to fulfill their illegal demand of dowry and subsequently the deceased commit suicide by hanging. According to the admission of Doctor i.e., PW9 that except injury on neck i.e. ligature mark, no other injuries are found on the dead body of deceased. In the view of the above, the alleged beating the deceased by the accused is far away from the truth.
PW1 MIGHT HAVE RESPONSIBLE FOR DEATH OF THE
DECEASED.
al) It is submitted that the PW1 admitted that he has landed properties of 28.15 cents at Nidamarru area and apart 18 from that 5 or 6 House sites and as gifted 2 acres of land to PW3 (2nd daughter) on 02-08-2006 and he also gifted 2 acres of land to his eldest daughter on 13-02-2007 and also gifted 484 sq.
yards land to her and also gifted Ac.2.06 cents to elder daughter and also the Autonagar site is allotted on her name and they have also added the property in the Autonagar to the elder daughter which is in the of PW2 and also gifted 206 sq. yards house site at Ramavarppadu to PW3 in the year 2006 or 2007 and he gifted 7 acres land to each of his daughters and requested them and to got it registered and his other 2 daughters got it registered after their marriage and his decease daughter did not got it registered.
NO PROOF FOR PRHONE CONVERSATIONS IN BETWEEN
DECEASED AND PW1 AND 2.
am) It is submitted that as per the prosecution, the deceased made a phone call to PW1 on 18-01-2013 and also deceased made a phone call to PW2 on 19-01-2013 prior to her death. PW1 admitted that his deceased daughter phone number is 9866475793. But the investigation officer i.e., PW12 did not collect the call data in order to prove that the deceased made a phone calls to the PW1 and 2. As such, the phone conversations in between the deceased and PW1 and 2 are false.
THE DESCEASED USED TO MOVE FREELY ALONG WITH
CHILD DURING THE PERIOD OF INCIDENT.
an) As per the evidence of PW2 that her deceased daughter informed that when she wants to come out, they are not giving her child and PW2 asked her to come out and will bring her daughter subsequently. The said evidence is improvement that her earlier statements and as such which is material omission.
The Ex.P13 which is the statement of D.Vinay Babu reveals that on 19-01-2013 at about 8.30 am the deceased took her child in the car by driving the same in order to drop her child at school.
Further the PW1 admitted that by the time of offence, his granddaughter through the deceased daughter used to attend kinder garden school. Further Dw2 deposed that the deceased 19 left the house along with the child to school at about 8.00 or 8.30 am. In view of the above, the deceased used to move freely along with the child during the period of incident. As such the allegation that accused demanded the deceased by leave the child with them is nothing but false.
ACCUSED REBUT THE PRESUMPTION BY ADDUCING
EVIDENCE OF DW1 &2.
ao) It is submitted that thought the prosecution failed to discharge its initial burden to prove the case beyond all reasonable doubts, the accused have examined DW1 & 2 to prove their contentions. The DW1 & 2 are residents of separate
Flats in the 4th floor of Vinay apartment and the scene offence
Flat also situated in the same floor. The DW1 is a inspector of police in excise department, and he deposed that there is no disputes what so ever between the deceased and the accused
No.1 and they were having cordial relations in the family life.
The DW2 is doing purohit and on the date of incident the accused
No.1 left the home at 7.00 or 7.30 am and the deceased took her child to drop at the school at 8.00 or 8.30 am and the deceased alone is at the house during the time of incident and somebody who is relative of deceased came there at 10.00 am and found no body were present in the marital home. Further he deposed that the deceased and accused No.1 was not having any disputes in between them. The evidence of DW1 & 2 goes to show that there was no harassment towards deceased by the accused at any point of time much less on the date of incident.
ap) The accused relying upon the citation which was reported idn 2011(1) ALD (Criminal) 337 A.P where in it was held “equal treatment to be given to prosecuitonhj witnesses as well as defense witnesses – if it seems that there is a ring of truth in the version of defense witness and it appears to be more probable, Court can base its decision on evidences of defense witness to record a finding (Para No.15).
PW.11 DELIBERATELY DENY THE SUGTGESTION WITH
REGARD TO9 ARREST OF THE ACCUSED.
20 aq) It is submitted that the PW11 is the then S.I of Police of
Machavaram P.S who registered the case and in cross examination he denied the suggestion that on receiving instructions from ACP i.e. P.W.12, he served 41 Cr.P.C. notice to the accused and arrested both the accused at about 1.00 p.m. on the day itself at the scene of offence and produced both the accused before the ACP at 4.00 p.m. The accused filed the remand report during 313 Cr.P.C. examination. The said remand report clearly reveals the said fact. But, the PW11 deliberately deny the same. As such the testimony of the PW11 is doubtful.
THERE IS A DELAY IN GIVING REPORT.
ar) It is submitted that the post-mortem of the deceased conducted at 5.15 p.m. by the PW9 and issued Ex.P10 post- mortem report. The Ex.P10 discloses that the approximate time of death of deceased is about 12 to 18 hours prior to P.M.
examination. Accordingly the deceased committed suicide by 9.00 or 9.30 a.m. on phone call of P.W4 the P.W1 came to the scene of offence at about 10 a.m. But the P.W1 gave report to the police at 1.00 p.m. with delay of 3 hours. As such there is every possibility to contact well versed in this regard and after due deliberations only the report was given.
PW.12 EVIDENCE WITH REGARD TO THE COLLECTION OF
THE PARTICULARS OF THE LAND IS FALSE.
as)It is submitted that in cross examination PW12 admitted that though he has collected the evidence that when 4 acres, 2 acres, 1 acre of land was given at the time of marriage, he has not produce the same. PW1 admission clearly reveals that he has gifted 7 acres of land to each of his daughters and his deceased daughter did not got it register. The admission of PW1 in this regard clearly shows that the 7 acres land not at register in the name of the deceased. In view of the same the evidence of P.W12 in this regard that he collected the documents is nothing but false.
21
LAPSES IN THE INVESTIGATION DONE BY PW12.
at) PW12 did not examine the scribe of the inquest report.
Further the PW12 did not examine the scribe of statements recorded during the inquest. As per the citation reported in 2012(2) ALD (Criminal) 892 AP where in it was held that “failure to obtain signature of scribe and to examine him – fatal to prosecution”. As such the inquest report i.e., Ex.P9 cannot be looked into and also Ex.P2, P4 to P6 are not valid under law.
au) PW12 did not examine the scribe of the 161 cr.P.C.
statement. In cross he denied the suggestion that the scribe of 161 Cr.P.C statement an Ex.P8 observation report is one and the same person. When on observation of writings of 161 Cr.P.C.
statements and Ex.P.8 observation report goes to show that the writings are one and the same aw) PW12 deposed that he prepared the observation report of scene of offence i.e., Ex.P8. Whereas in cross examination he admitted that another observation report of scene of offence which was marked as Ex.P17. Both the Ex.P8 and P17 were prepared at one and the same time. But, there is signature of
PW12 on the second observation report i.e. Ex.P17. It shows that some of his officer prepared the Ex.P17 and basing on that
Ex.P8 was prepared by PW12. As such the investigation of PW12 is nothing but table investigation.
ay) The PW12 did not obtain the cell phone call list in this case. As there is no phone conversation in between the deceased and PW1 and 2, the PW12 unable to obtain the said call list. If really there were conversations as stated by prosecution, the
PW12 would obtain the same in order to corroboration to the said aspect.
THE EVIDENCE OF THE PROSECUTION DO NOT INSPIRE
ANY CONFIDENCE.
22 aw) After careful scrutiny of the entire material on record it is clear that there is no evidence with regard to the demand for dowry or subjecting the deceased to cruelty, on in connection with dowry other than general, vague and inconsistent statements and also improvement of their allegations by way of omissions of interested and motivated witnesses PW1 to 4 being the family members of the deceased. It may not be out of place to mention that there are material contradictions which are D1 and D2 in the evidence of PW4 and also serious omissions in the statements of PW1 to 4, as can be seen from their evidence.
Further, it is clear that PW1 to 4, who are no other than the family members of the deceased, on account of the deceased having died by hanging, obviously were angry against the accused and had every reason to involve the accused for the offence U/s.304(B) of IPC. The prosecution failed to establish the ingredients of the charge U/s.306 or 304(B) of IPC or 498-A of IPC framed against the accused by acceptable and unimpeachable to call the death of the deceased as “dowry death” and that husband of the deceased A1 and his mother A2 caused the death of the deceased. Further in view of the failure of the prosecution to discharge its initial burden, the question of applicability of presumption U/s.113(b) of evidence Act does not arise. Thus, considered that the prosecution has utterly failed to prove any one of the circumstances against the accused and chain of circumstances were broken at every stage without connecting the accused to the commission of the alleged crime as the prosecution primary fact all these circumstances much less beyond all the reasonable doubt bringing, home the guilty to the accused and to prove that the accused had committed the crime.
ax) Therefore, the accused are entitled to the benefit of doubt and in support of his contention he relied on the decisions reported in:
1)2007 (1) ALD (Crl.) 1024 A.P.
2)2008 (2) ALD (Crl.) 582 A.P.
23
3)2014 ALD (Crl.) 942 A.P.
4)2009 (1) AL.D (Crl.) 5 A.P.
5)2011 (1) ALD (Crl.) 337.
6)2012 (2) ALD (Crl.) 892 A.P.
12) Evidence of P.W.9 doctor, who conducted Post Mortem examination over the dead body of the deceased coupled with
Ex.P.10 Post mortem report, Ex.P.11 RFSL report and Ex.P.12 final opinion reveals that obliquely placed ligature mark measuring about 28 cms X 4 cms over front and sides of neck above thyroid cartilage below chin Dry and hard Hyoid bone and thyroid cartilage are intact and the cause of death of deceased is due to asphyxia due to hanging and P.W.9 admitted in his cross that except the injury on the neck i.e., ligature mark, no other injuries are found on the dead body of the deceased.
13) Thus, from the above, it is clear that the cause of death of the deceased is due to asphyxia and due to hanging and the next aspect to be considered herein is who is responsible for causing the hanging of deceased.
14) P.W.5 is the photographer, who photographed the scene of offence along with dead body of the deceased under
Ex.P.7.
15) P.W.11 is the Investigating officer, who registered the crime for the offence U/s. 304-B IPC under Ex.P.15 printed FIR on receiving Ex.P.1 report from P.W.1
16) Evidence of P.W.12 Investigation Officer coupled with
P.W.7 mediator reveals that scene of offence is observed on 24 19.1.13 at 1.00 p.m., and seized M.O.1 Chunny from the scene of offence and prepared Ex.P.8 observation report.
17) Evidence of P.W.8 V.R.O., who stood as mediator for inquest and P.W.10 Dy. Tahasildar, who held inquest over the dead body of the deceased reveals that inquest was held over the dead body of the deceased and prepared Ex.P.9 inquest report and during inquest P.Ws.1 to 4 and another examined and recorded their statements under Exs.P.2 to P.6 and Ex.P.13 statement and after completion of inquest he send the dead body of the deceased for post mortem examination.
18) P.Ws.12 and 13 are the investigating officers, who investigated the crime.
19) The other evidence remained before this court is evidence of P.W.1, who is father of deceased and evidence of
P.W.2, who is mother of deceased and P.Ws.3 & 4 relatives of deceased and P.W.6 independent witness.
20) Evidence of P.W.1 is that he is resident of
Ayyappanagar, Vijayawada and he is running Automobile
Engineering work shop and LW2/Ratna Kumari is his wife and
LW3/Nagamallika is his 2nd daughter and he know LW4/Eswara
Prasad, LW5/Pedababu and LW6/Sivarama Krishna and deceased
Kolli Vijaya Durga Gayatri is his 3rd daughter and A1 is her husband and A2 is mother of A1 and he performed the marriage of his deceased daughter with A1 on 8-10-2008 at Auto
Technician Association Hall, Vijayawada by giving Ac.7.00 of land and 65 sovereigns of gold to both the accused and
Rs.10,00,000/- cash to both the accused and father of A1 and 25 during the wedlock, his deceased daughter gave birth to one daughter namely Sloka and his deceased daughter and A1 lived happily for one and half year and subsequently his deceased daughter informed him that both the accused are disputing for
additional dowry by harassing her by beating her and on that, he
called A1 and convinced him and sent his deceased daughter and thereafter for every two or three months, accused continued the same by stating that they are asking his deceased daughter to go out from the house by leaving her daughter and on that he raised the issue before the elders namely Krishna and elders convinced
A1 and again accused repeated the same and on that, he along with one Venkata Ratnam, Krishna and father of A1 convinced by paying Rs. 5,00,000/- to both the accused and in the year 2013, they also gave additional Ac.0.96 cents on the name of his deceased daughter and registered the same on 10-1-2013 and they did not send his deceased daughter for Sankranthi festival, but his deceased daughter called over phone on 18-1-2013 stating that A2 and others were beating her and asking her to die and she also informed the same to his wife and on that he stated to her that they will come there on the next day and on 19.1.2013 at about 11.00 am, they wife called him over phone stating that she was hearing sounds in the house of his deceased daughter and that they may be beating his deceased daughter and on that she informed that she will send him and by 12 noon, he went to the house of his deceased daughter, both the accused were present outside the house and about to go out from the house and deceased was hanging to ceiling fan and immediately 26 he removed the knot assuming that she may be alive, but she died and on that he reported the crime to the police and his deceased daughter died due to harassment caused by both the accused on her and police examined him and recorded his statement and Ex.P1 is the said Report and Ex.P2 statement is recorded his Mandal Executive Magistrate during inquest and it contains his signature and Ex.P3 is the certified copy of document which shows that they gave Ac.0.96 cents of land given to his deceased daughter and they harassed his deceased daughter for not bringing the cash instead of the land.
21) Evidence of P.W.2 is that she is resident of
Ayyappanagar, Vijayawada and she is house wife and PW1 is her husband and LW3/Nagamallika is her 2nd daughter and she know
LW4/Eswara Prasad, LW5/Pedababu and LW6/Sivarama Krishna and deceased Kolli Vijaya Durga Gayatri is her 3rd daughter and
A1 is her husband and A2 is mother of A1 and they performed the marriage of her deceased daughter with A1 on 8.10.2008 at
Auto Technician Association Hall, Vijayawada by giving
Rs.10,00,000/- cash to A1 towards marriage expenses and
Ac.7.00 of land and 65 sovereigns of gold to her deceased daughter and during the wedlock, her deceased daughter gave birth to one daughter namely Sloka and her deceased daughter and A1 lived happily for one and half year and subsequently her deceased daughter informed her that both the accused are disputing for additional dowry by harassing her and on that they paid Rs. 5,00,000/- to A1 and they lived happily for some time and again started dispute and on that her husband gave Ac.0.96 27 of land to the deceased and that they disputed that why land was given on her name instead on his name, so that they were convert into cash and also resisted her daughter to come to her house and on 18.1.2013 her deceased daughter called her over phone and stated that accused were disputing that why the land was given on A1‟s name and A2 harassed her that if the land is given on A1‟s name he might have discharged the debts and A1 beat her deceased daughter and on 19-1-2013 again her deceased daughter called her over phone and stated that both the accused are harassing her and she also heard the shouts of both the accused and her deceased daughter cried over phone and on that, she stated to her that her husband will come and she further informed that when she want to come out, they are not giving her child and she asked her to come out and will bring her daughter subsequently and that A2 harassed that if she brought land how they can rotate the cash and she heard the same over phone and while she was speaking the phone disconnected and on that due to fear, she informed the same to her husband as she did not turn up phone subsequently and subsequently after the death of her deceased daughter, she went to the scene house and observed the dead body of her deceased daughter and police examined her and recorded her statement and MEM recorded her statement under Ex.P4 and it contains her signature and her deceased daughter‟s daughter Sloka is with them.
22) Evidence of P.W.3 is that she is resident of Vijayawada and she is house wife and PWs.1 and 2 are her parents and she 28 know LW4/Eswara Prasad, LW5/Pedababu and LW6/Sivarama
Krishna and deceased Kolli Vijaya Durga Gayatri is her younger sister and A1 is her husband and A2 is mother of A1 and they performed the marriage of her deceased sister with A1 on 8-10- 2008 by giving Ac.7.00 of land and 65 sovereigns of gold to her younger sister and paid marriage expenses of Rs.10,00,000/- to
A1 and they blessed with one daughter and the lived cordially for one and half years and subsequently harassed her deceased sister for additional dowry and on that her father paid additional dowry and she do not know its particulars and to her knowledge her father paid Rs. 5,00,000/- to A1 and also gave Ac.0.96 cents of land to her deceased sister and on that both the accused disputed why that land was given in the name of her deceased sister without giving cash and on 19-1-2013, her mother/PW2 informed her over phone that dispute was going on in the house of her deceased sister and they went to the house of her deceased sister since she did not respond to her phone call and by the time, she reached to the house of her deceased daughter, her dead body was laid on the cot and she came to know that her deceased sister was beaten by A1 and police examined her and recorded her statement and Thasildar examined her during inquest and recorded her statement under Ex.P5 and it contains her signature
23) Evidence of P.W.5 is that he know PW1 and both the accused and PW1 blessed with three daughters and deceased
Gayatri is 3rd daughter of PW1 and she died and her marriage was performed with A1 in the year 2008 and said Gayatri died in 29 the year 2013 and PW1 is her brother-in-law‟s brother and by the time of marriage of Gayatri with A1, he gave Ac.7.00 of land and 65 sovereigns of gold to the deceased Gayatri and PW2 used to call her over phone now and then and used to state that there were no cordial relations between A1 and deceased and on that he asked her about the job of A1 as they informed by the time of marriage that A1 was working in Bangalore as Software Engineer and earning Rs.1,00,000/- and on that he was told by PW2 that
A1 lost his job and doing business and asked her to see and on that, PW1 purchased lorries to A1 and PW1 used to pay the installments of those lorries and on 19-1-2013 at about 9.00 am, while he was at her poultry along with PW1 and others were discussing about A1 and on that PW1 stated that A1 was not seeing the welfare of deceased Gayatri and at about 10.30 am on that day PW2 called PW1 over phone and stated that A1 was beating the deceased and asked him to take the deceased
Gayatri to the home immediately and on that, he along with PW1 and two others went to the house of A1 situated at Vinay
Apartments and asked about Gayatri and on that, they stated hurriedly that deceased was in the room and on that, when they went into the house, they observed that dead body of the deceased was hanging to the ceiling and on that they removed the dead body from the knot and called the doctor and the doctor declared the death of deceased and police examined him and
MEM also recorded her statement during inquest under Ex.P6 and it contains his signature.
30
24) Evidence of P.W.6 is that he is resident of Nidamarru and doing cultivation and he know PW1 and he acted as mediator for purchase of Ac.0.96 cents of land by PW1 on the name of deceased Gayatri from one Sarath Kumar Reddy and the said sale deed was registered and it has taken place on 10-1-2013 and he is one of the attestor to original of Ex.P3 sale deed and true copy of Ex.P3 also reveals his signature as identifying witness and Police examined me and recorded his statement.
25) Though evidence of DWs.1 and 2 reveals that they are neighouring flat owners and each flat is visible to other flat and
A.1 and deceased were having cordial relations and A.2 is resident of Prakasam District and no panchayat was held in respect of martial life of A.1 with deceased and they can hear the cries if any from the flat of A.1 and did not hear the cries from the flat of A.1 and though further evidence of D.W.2 reveals that in between 7.00 to 7.30 am, on the date of death of deceased
A.1 went outside and returned to the house after the death of deceased at 8.00 or 8.30 a.m., deceased taken her daughter to the school from the house but he did not observe whether they went in a car or not and within half an hour deceased returned to the house and they came to know about the death of the deceased at about 10.30 or 11.00 a.m., the fact remains that
D.Ws.1 and 2 did not come forward and state the same to the
Police at earliest point of time and moreover, the fact remains
DW.1 is working at Mylavaram and DW.2 is Purohit and used to go out to marriage programme and thereby evidence of D.W.1 and 2 is incredible.
31
26) In the decision relied on by the learned counsel for accused reported in: 2007(1) ALD (Crl) 1024 (AP),
Angirekula Ramakrishna Vs State of A.P. wherein our
Hon‟ble High Court at para 18 held as follows.
“18. From a perusal of the oral and documentary evidence, it is clear that there is no such agreement between the parties to the marriage with regard to dowry. In the absence of any agreement to pay dowry at or after the time of marriage, it cannot be said that the appellant harassed and demanded the deceased to bring dowry in connection with the marriage, from her parents. PWs.1 and 2 in their evidence as well as in Ex.P1 stated that the appellant used to demand the deceased to bring amount from them and they used to pay the same whenever she asked. Even assuming for a moment that the appellant had demanded as alleged by PW1 and if really PW1 paid the said amounts to the appellant, they would not constitute dowry and the alleged demand does not fall within the ambit of Section 304- B of IPC. Therefore, their evidence does not help the prosecution to establish that the appellant harassed the deceased demanding dowry.”
27) In the other decision relied by the learned counsel for accused reported in 2008(2) ALD (Crl)582 AP, Gunda
Koteswara Rao Vs State of A.P wherein our Hon‟ble High
Court at Para 13 held as follows.
“13. Further, the evidence of PW2, who is none other than the mother of the deceased, is to the very same effect. Simply because PWs.1 and 2 are the parents of the deceased and interested in the case of the prosecution, their evidence need not be brushed aside. However, when their evidence is full of improvements, definitely, the Court has to be very careful while considering the same.”
28) There is no dispute in respect of the settled precedent that while considering the evidence of interested witnesses with improvements, court has to be very careful while considering the same.
29) In the other decision relied on by the learned counsel for accused reported in 2014(1) ALD (Crl) 942 (AP), Mukkamala 32
Atchutaramaiah Vs State of A.P. When circumstances stated by material witnesses do not point out the guilt of appellant by disclosing any proximity and no neighbor examined to establish the dispute between the accused/husband and deceased soon
before her death. It is not fit case to draw the presumption U/s.
113-B of Indian Evidence Act.
30) Here in this case prosecution examines the neighbours but they did not support the case of prosecution. As such the facts of the decision relied on by the learned counsel for accused reported in 2014 (1) ALD (Crl) 942 AP are different from the facts of the present case.
31) In the other decision relied on by the learned counsel
for accused reported in 2011(1) ALD (Crl.) 337 (AP) Vampu
Abburamulu and another Vs state of A.P wherein our
Hon‟ble High Court at para 15 held as follows.
“15. It is settled law that even if the witness is treated hostile, either the prosecution or defence can rely on the said evidence and the Court in such an event, has to evaluate the evidence of hostile witness for ascertaining the truth. Similarly equal treatment shall be given to prosecution witness as well as defence witness and if it seems that there is a ring of truth in the version of defence witness and it appears to be more probable, the Court can base its decision on the evidence of defence witness to record a finding. “
32) It is also settled precedent of our Hon‟ble High Court that the evidence of hostile witness can be taken into consideration basing on the facts of the each case.
33) In the other decision relied on by the learned counsel for accused reported in 2012 (2) ALD (Crl) 892 AP wherein our Hon‟ble High Court at para 50 held as follows.
“50. In view of the failure to obtain the signatures of the scribe of Ex.P3 and apart from that, in view of the failure to 33 examine the scribe, the same is fatal to the case of the prosecution.”
34) In the decision relied on by the learned Addl. Public
Prosecutor reported in (1997) 9 SCC 338 (Balaram Prasad
Agarwal Vs State of Bihar and others), wherein our Hon‟ble
Supreme Court at para 8 held as follows.
“8. In this connection we may refer to relevant evidence on record. The appellant as P.W.S. had stated on path that on 31st October 1988 at 10.00 a.m. he was informed by his sonin-law Paran Prasad Agrawal that his daughter had died after falling into the well and he accordingly went on the site and saw her dead body. He had further deposed that on 12th November 1988 he went again to the house of the accused son-in-law to see his youngest grandson and at that time he enquired of the incident from the neighbors residing in the Mohalla and his neighbors told him that on previous night of the incident Kiran Devi was beaten by her mother-in-law Jhala Devi, Paran Prasad and the elder brother of Paran Prasad and Kiran Devi was shouting „Bachao Bachao‟ „save save‟ and they also told that the mother-in-law, husband and elder brother of the husband of Kiran Devi, Girbar Prasad were telling that they would perform the second marriage of Paran Prasad after killing her and were threatening to kill her and this fact was told to him by the neighbours, namely, Shiv Nath, P.W.4, Laxmi Mahto, P.W.3 and others, namely, Birendra Prasad etc. He also stated that in his police complaint he had also given the names of these witnesses who informed him accordingly, namely, Ajay Mittal, Avdhesh Prasad, Shiv Nath Mahto, Laxmi Mahto and Birendra Prasad. He had also deposed about the suffering undergone by his daughter at the hands of the accused in past after her marriage. That his daughter Kiran Devi and informed him that her husband used to ask her to bring money from him and on this he replied that he had already given Rs. 10,000/-. She also used to say that her husband Paran Prasad, Cirbar Prasad and mother-in-law Jhalo Devi used to beat her. The marriage of his daughter was soiamnized in the year 1977. For 5-6 years there was no issue from her and hence her inlaws started abusing her and wanted to make a second marriage of Paran Prasad. He got Kiran Devi treated at Ranchi and consequently she gave birth to two sons. About four years prior to this incident his daughter Kiran Devi due to the atrocities of her in-laws had jumped into the same well. However the neighbours had saved her. That after birth of her youngest son she started living at his house as his son-in- law was not taking her back. That he sent his daughter to her in-laws‟ house after convincing his son-in law. In cross examination he stood by his version that the people of the Mohalla told him that on the fateful night they had personally heard the sound of quarrel and that threat to kill her. He also reiterated what he stated before the police in this connection. He proved two post cards which he had received when his daughter was pregnant and in these post cards he was informed that his son-in-law was trying to get married to one Lalo Devi. Nothing substantial could be brought out in his cross examination to discredit his aforesaid version. This version is fully corroborated by the evidence of P.W.8 Kedar Nath Pathak, the investigating Officer. The aforesaid 34 evidence of the appellant clearly established the sufferings undergone by his daughter deceased Kiran Devi at the hands of the accused and the situation had so worsened that she had tried to commit suicide even earlier and was saved by the neighbours. His evidence about what his deceased daughter told him earlier about her sufferings at the hands of the accused was clearly admissible under Section 22 of the Evidence Act. His evidence further shows that the cruel conduct of the respondent-accused did not abate and appeared to have continued till the fateful night when the situation became unbearable to the deceased which resulted in her unfortunate death by drowning in the well in the courtyard of the house of the accused. it is necessary to appreciate that on that fateful night apart from the victim only the accused ware in the house. Thus what happened on that night and what led to the deceased failing in the well would be wholly within the personal and special knowledge of the accused. But they kept mum on this aspect. It is of course true that burden is on the prosecution to prove the case beyond reasonable doubt. But also the prosecution is found to have shown that the accused were guilty of persistent conduct of cruelty on the deceased spread over years as is well established from the unshaken testimony of P.W.6, father of the deceased girl, the facts which were in the personal knowledge of the accused who were present in the house on that fateful night could have been revealed by them to disprove the prosecution case. This burden under Section 109 of the Indian Evidence Act is not discharged by them. In this connection we may usefully refer to some of the decisions of this Court on the point. In the case of Shambhu Nath Mehra v. The State of Ajmer AIR 1956 SC 404 Bose, J. speaking for a two member Bench referring to the applicability to Section 106 of the Evidence Act to criminal prosecutions laid down in paragraphs 10 and 11 of the Report as under:
"(10) Section 106 is an exception to S.101. Section 101 lays down the general rule about the burden of proof. „Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist‟.
Illustration (a) says-„A desires a Court to give judgment that B shall be punished for a crime which A says B has committed.
A must prove that B has committed the crime‟.
(11) This lays down the general rule that in a criminal case the burden of proof is on the prosecution and S.106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are „especially‟ within the knowledge of the accused and which he could prove without difficulty or inconvenience." In the case of
Collector of Customs, Madras & Ors. v. D. Bhoormull AIR 1974 SC 850 another Bench of two learned judges of this Court while considering the offence under Sea Customs Act, 1878 earmarked the scope of 35
Section 106 of the Evidence Act in the following terms in paragraphs 31 and 32 of the Report:
"31. The other cardinal principle having an important bearing on the incidence of burden of proof is that sufficiency and weight of the evidence is to be considered – to use the words of Lord Mansfield in
Blatch v. Archar (1774) 1 Cowp 63 at p.65 „according to the proof which it was in the power of one side to prove, and in the power of the other to have contradicted. Since it is exceedingly difficult, if not absolutely impossible for the prosecution to prove facts which are especially within the knowledge of the opponent or the accused, it is not obliged to prove them as part of its primary burden.
32. Smuggling is clandestine conveying of goods to avoid legal duties. Secrecy and stealth being its covering guards, it is impossible for the Preventive Department to unravel every link of the process. Many facts relating to this illicit business remain in the special or peculiar knowledge of the person concerned in it. On the principle underlying Section 106, Evidence Act, the burden to establish those facts is cast on the person concerned and if he fails to establish or explain those facts, an adverse inference of facts may arise against him which coupled with the presumptive evidence adduced by the prosecution or the Department would rebut the initial presumption of innocence in favour of that person, and in the result prove him guilty. As pointed out by Best in „Law of Evidence‟ (12th Edn. Article 320, page 291), the "presumption of innocence is, no doubt, presumption juris„: but every day‟s practice shows that it may be successfully encountered by the presumption of guilt arising from recent (unexplained) possession of stolen property", though the latter is only a presumption of fact. Thus the burden on the prosecution or the Department may be considerably lightened even by such presumption of fact arising in their favour. However, this does not mean that the special or peculiar knowledge of the person proceeded against will relieve the prosecution or the Department all together of the burden of producing some evidence in respect of that fact in issue. It will only alleviate that burden to discharge which very slight evidence may suffice." 36
35) In the other decision relied on by the learned counsel
for accused reported in 2013 Crl.L.J 4710, (S.Govindaraju Vs
State of Karnataka), wherein our Hon‟ble Supreme Court at para 18 held as follows.
“18. It is well settled legal proposition that while appreciating the evidence, the court has to take into consideration whether the contradictions/omissions were of such magnitude so as to materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements in relation to trivial matters, which do not effect the core of the case of the prosecution, must not be made a ground for rejection of evidence in its entirety. The trial court, after going through the entire evidence available, must form an opinion about the credibility of the witnesses, and the appellate court in the normal course of action, would not be justified in reviewing the same, without providing justifiable reasons for doing so. Where the omission(s) amount to a contradiction, creating a serious doubt regarding the truthfulness of a witness, and the other witnesses also make material improvements before the court in order to make the evidence acceptable, it would not be safe to rely upon such evidence. The discrepancies in the evidence of eyewitnesses, if found not to be minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, the witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence available or with a statement that 1 Page 14 has already been recorded, then in such a case, it cannot be held that the prosecution has proved its case beyond reasonable doubt.”
36) Evidence of PW1 is not corroborating with Ex.P1 report in respect of giving Ac.7.00 cents of land and 65 sovereigns of gold to both accused and Rs.10 lakhs cash to both accused and father of A1 which is material omission. Evidence of 37
PW2 who is mother of deceased, PW3 sister of deceased reveals that at the time of marriage of A1 with deceased, they gave cash of Rs. 10,00,000/- to A1 towards marriage expenses and 7 acres of land and 65 sovereigns of gold to the deceased but payment of 10 lakh cash towards marriage expenses of A1 is omission.
Evidence of PWs 4 and 5 independent witnesses are absent in respect of payment of either Rs.10 lakhs and Rs.5 lakhs to accused. Evidence of PW4 reveals that they gave Ac.7 of land and 65 sovereigns of gold to the deceased. Thus evidence of
PWs 1 to 4 is insistent in respect of payment of Rs. 10 lakhs either to A1 or to both and more over evidence of PW1is not corroborating with Ex.P1 report in respect of payment of Rs. 10 lakh dowry to both the accused.
37) Though evidence of PW1 reveals that he paid additional dowry of Rs. 5 lakh to both accused, it is not corroborating with
Ex.P1 report and Ex.P1 report did not reveals to whom he paid
Rs. 5 lakh. Though evidence of PWs 2 and 3 reveals that Rs.5
Lakh additional dowry was given to A1, their evidence is omission. Thus evidence of PW1 is not corroborating with Ex.P1 report and in consistent with evidence of PW2 and 3 in respect of payment of additional dowry of Rs. 5 lakh either to A1 or to both accused and evidence of PWs 2 and 3 is omission.
38) Thus prosecution failed to establish that dowry of Rs.10 lakh or Rs.5 Lakhs was given to any accused.
39) Prosecution established by examining P.Ws.1, 2 and 5 that just few days prior to the death of deceased 96 cents land was transferred in the name of deceased. Evidence of P.W.1, 38 who is father of deceased reveals that deceased daughter called over phone to P.W.2 on 18.1.2013 and deceased informed that
A.2 and others were beating her and asking to die.
40) Evidence of P.W.2, who is mother of deceased is that her deceased daughter and A1 lived happily for one and half year and subsequently her deceased daughter informed her that both the accused are disputing for additional dowry by harassing her and again started dispute and on that her husband gave Ac.0.96 of land to the deceased and that they disputed that why land was given on her name instead on his name, so that they were convert into cash and also resisted her daughter to come to her house and on 18.1.2013 her deceased daughter called her over phone and stated that accused were disputing that why the land was given on A1‟s name and A2 harassed her that if the land is given on A1‟s name, he might have discharged the debts and A1 beat her deceased daughter and on 19-1-2013 again her deceased daughter called her over phone and stated that both the accused are harassing her and she also heard the shouts of both the accused and her deceased daughter cried over phone and on that, she stated to her that her husband will come and she further informed that when she want to come out, they are not giving her child and she asked her to come out and will bring her daughter subsequently and that A2 harassed that if she brought land how they can rotate the cash and she heard the same over phone and while she was speaking the phone disconnected and on that due to fear, she informed the same to her husband as she did not turn up phone subsequently and 39 subsequently after the death of her deceased daughter, she went to the scene house and observed the dead body of her deceased daughter. Signature of scribe is there on Ex.P.9 inquest report.
Ex.D.1 contradiction in respect of presence of A.1 at ground floor and scene flat and Ex.D.2 contradiction is in respect of P.W.4 informing the occurrence to PW.1 and thereby Ex.D.1 and D.2 contradictions are minor. In the decision relied on by the learned
Addl. Public Prosecutor reported in (2012) 11 S.C.C. 397,
Mustafa Shahadlal Shaik. Vs. State of Maharastra, wherein our
Hon‟ble Supreme Court held that in a case of matrimonial death,
outsiders cannot be expected to come and depose what had happened in the family of deceased in the decision reported in:
2002 (2) ALD. (Crl.) 871 S.C. A Prema S.Rao and another
Vs. Yedla Srinivasa Rao and others, where in our Hon‟ble
Supreme Court held at page 15 and 16 held as that harassment of husband after the marriage to force the wife to transfer her property in his name leading to her suicide, does not constitute an offence U/s. 304-B IPC. But it is enough to sustain conviction
U/s. 498-A IPC and 306 IPC.
41) Thus, from the above it is clear that prosecution established that soon before her death forced/harassed the deceased for not transferring the property in the name of A.1 instead of the deceased. Under the following circumstances, prosecution established the guilt of accused for the offences U/s.
498-A and 306 IPC and failed to establish the guilt of both the accused for the offences U/s. 304-B IPC and Section 3 & 4 of
Dowri Prohibition Act.
40
42) In the result, A.1 is acquitted U/s. 235(1) Cr.P.C. for the offences U/s. 304-B IPC and section 3 & 4 of Dowry
Prohibition Act and A.2 is acquitted under section 235(1) Cr.P.C.
for the offence U/s. 304-B IPC r/w. 34 IPC, section 3 & 4 of
Dowry Prohibition Act. A.1 is convicted U/s. 235(2) Cr.P.C., for the offence U/s. 498-A and 306 IPC and A.2 is convicted U/s.
498-A r/w. 34 IPC and 306 r/w. 34 IPC.
43) Accused are questioned in respect of quantum of sentence and A.1 stated that he has minor child and father and depending on him and A.2 stated that she is woman and senior citizen.
44) Considering the gravity of offence, provisions U/s. 360
Cr.P.C. and Probation of Offenders Act are not followed and considering the plea of both the accused, A.1 is sentenced to suffer R.I. for One year and shall pay a fine of Rs.100/- in default S.I. for 15 days for the offence U/s. 306 IPC and A.1 is sentenced to suffer R.I. for Six months and shall pay a fine of
Rs.100/- in default S.I. for 15 days for the offence U/s. 498-A
IPC and both the sentences shall run concurrently. A.2 is sentenced to suffer R.I. for One year and shall pay a fine of
Rs.100/- in default S.I. for 15 days for the offence U/s. 306 r/w.
34 IPC and further sentenced to suffer R.I. for Six months and shall pay a fine of Rs.100/- in default S.I. for 15 days for the offence U/s. 498-A r/w. 34 IPC and both the sentences shall run concurrently. M.O.1 Chunny pieces and unmarked worthless property if any shall be destroyed after the appeal time is over after confirming that no appeal is pending. The remand period if 41 any shall be given set off U/s. 428 Cr.P.C. The bail bonds of the accused shall stand cancelled.
Typed to my dictation by the Stenographer, corrected and
pronounced by me in the open court this the 25th day of April,
2017. Sd/C.Yamini, Mahila Sessions Judge, Vijayawada.
APPENDIX OF EVIDENCE
Witnesses Examined for Prosecution:
PW.1: Sunkara Durga prasad PW.2: Sunkara Ratna Kumari. PW.3: Billupati Siuva Naga Mallika. PW.4: Thatineni Venkateswara Rao PW.5: Chan Khan. PW.6: Tadiparthi Venkata Reddy. PW.7: Bottu Venkata Krishna Raju PW.8: P.V.Ramana. PW.9: G.Siva Ramireddy, Professor PW.10:K.Mastan, Dy.Thasildar PW.11:U.Ramarao, SI of police. PW.12:P.Satyanarayana Rao, DSP PW.13: D.V.Nageswara Rao, Rtd. Addl. ACP
WITNESS EXAMINED FOR DEFENCE:
DW1: G.Srinivas DW2: B.Venkata Ramana Baghavan
EXHIBITS MARKED FOR PROSECUTION:
Ex.P.1: Report of P.W.1 Ex.P.2: Statement of PW1 before MRO. Ex.P.3: Certified copy of registered sale deed Ex.P.4: Statement of PW2 before MRO Ex.P.5: Statement of PW3 before MRO Ex.P.6: Statement of PW4 before MRO Ex.P.7: 4 photos Ex.P.8: Scene observation report. Ex.P.9: Inquest report. Ex.P.10: Postmortem report Ex.P.11: RFSL report Ex.P.12: Final opinion Ex.P.13: Statement of LW7 before MRO. Ex.P.14: FIR in Cr.No.35/2013. Ex.P.15: Rough sketch of scene of offence. Ex.P.16: Letter of advice Ex.P.17: Scene observation report dt. 19.1.2013.
42
EXHIBITS MARKED FOR DEFENCE:
Ex.D1: Contradiction in Ex.P6 Ex.D2: Contradiction in Ex.P6
MATERIAL OBJECTS MARKED FOR PROSECUTION:
M.O.1: Chunni pieces.
Sd/-C.Yamini,
Mahila Sessions Judge, Vijayawada.