1
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam.
Dt. 17.02.2020.
IN THE COURT OF SESSIONS JUDGE, KRISHNA AT
MACHILIPATNAM
PRESENT: - Sri E.B.RAO
I ADDITIONAL DISTRICT & SESSIONS JUDGE,
FAC/SESSIONS JUDGE,
KRISHNA, MACHILIPATNAM
MONDAY, THIS THE 17th DAY OF FEBRUARY, 2020
SESSIONS CASE No.135/2018
-*-*- Names of the Accused and : 1. Thalari Vasu Koteswara Rao, S/o. particulars Veera Venkateswara Rao, Age 25 years, C/Yadava, Pedatummidi Village, Bantumilli Mandal.
2. Thalari Nancharamma, W/o. Veera Venkateswara Rao, Age 45 years, C/Yadava, Pedatummidi Village, Bantumilli Mandal.
3. Thalari Veera Venkateswsara Rao, S/o. Govardhana, Age 48 years, C/Yadava, Pedatummidi Village, Bantumilli Mandal.
Charges : Under Sections 304-B, 306, 302 of Indian Penal Code, 1860 and U/s. 3 & 4 of Dowry Prohibition Act, 1961. Plea of the accused : Pleaded not guilty
Finding of the judge : Accused No.1 is found guilty for the charges U/s. 306 of IPC.
Accused Nos.2 and 3 are found not guilty for the Charge under Section 306 of IPC.
Accused Nos.1 to 3 are found not guilty for the charges under Sections 304-B, 302 of IPC and under Sections 3 and 4 of Dowry Prohibition Act, 1961. Date of Sentence or Order : 17.02.2020
Sentence or Order:
IN THE RESULT, A.1 is found guilty for the charge under Section 306 of IPC and he is convicted under Section 235 (2) of Cr.P.C.
A.1 to A.3 are found not guilty for the charges under Sections 304-B, 302 of IPC and under Sections 3 and 4 of Dowry Prohibition Act, 1961 and they are acquitted under Section 235(1) of Cr.P.C.
A.2 and A.3 are also found not guilty for the charge under
Section 306 of I.P.C., and they are acquitted under Section 235 (1) of
Cr.P.C.
Accused No.1 is sentenced to undergo Rigorous Imprisonment
Page No.1 of 61 2
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020. for a period of Seven (7) years and also to pay a fine of Rs.10,000/- (Rupees ten thousand only), in default of payment of fine, the accused No.1 shall undergo Rigorous Imprisonment under Section 66 of
IPC for a period of One (1) year for the charge under Section 306 of
I.P.C.
The remand period of accused No.1 from 16.09.2017 to 17.11.2017 shall be given set-off under Section 428 of Cr.P.C.
The prosecution is conducted : Sri Kaila Rama Krishna, by Public Prosecutor.
The accused is defended by : Sri M.Venkateswara Rao, Advocate for Accused. The case committed by : Judicial Magistrate of First Class, Bantumilli.
This case is coming before me on 27.01.2020 for final hearing in the presence of Sri Kaila Rama Krishna,Public Prosecutor for the State and of Sri M.Venkateswara Rao, Advocate for the Accused and the matter having stood over for consideration till this day and upon perusing the entire material available on record, this Court delivered the following:-
J U D G M E N T
The Sub-Divisional Police Officer, Machilipatnam filed Charge
Sheet against A.1 to A.3 alleging that they had committed offences punishable under Sections 304-B, 306 of Indian Penal Code, 1860 (for brevity ‘IPC’) and U/s. 3 & 4 of Dowry Prohibition Act, 1961 in connection with a case in Crime No.96 of 2017 of Bantumilli Police
Station.
2. Compendious summary of averments mentioned in the final report are as follows:
The defacto-complainant P.W.1/Parasa Nageswara Rao (L.W.1) is resident of Kanukolllu Village of Mandavalli Mandal and he is elder paternal uncle of deceased ‘Seetha.’ The deceased ‘Seetha,’ Aged about 22 years is wife of A.1 and daughter-in-law of A.2 and A.3. The scene of offence situated at Pedatummidi Village of Bantumilli Mandal.
2.1. P.W.1 is elder paternal uncle of deceased; P.W.2 is younger paternal aunt of deceased, P.W.3 is grandmother of
Page No.2 of 61 3
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020. deceased; P.W.4 is son of P.W.1; P.W.5 is younger sister of deceased;
P.W.6 & P.W.9 are younger paternal aunts of the deceased; P.W.7 and
P.W.8 are co-workers of A.1; P.W.10 is a neighbor of accused; P.W.11 is owner of the house of accused; P.W.12 is a mediator for inquest
Panchayatdar; P.W.13 is the Doctor, who conducted Post Mortem examination on the body of deceased; P.W.14 is Head Constable who registered F.I.R., in this case; P.W.15 is the then Thasildar, Buntumilli, who conducted inquest over the dead body of deceased; P.W.16 is the
Investigating Officer, who conducted part of investigation in this case;
P.W.17 is the Investigating Officer, who filed charge sheet against A.1 to A.3.
2.2. The deceased is daughter of P.W.1’s younger brother. The deceased fell in love with A.1 and they wish to marry. A.2 and A.3 not accepted to perform the marriage of A.1 with deceased because she belongs to Gowda community, where as they belong to Yadava community, on that A.1 eloped with the deceased and they get performed their marriage in the premises of Goddess ‘Kanaka
Durgamma’ Temple, Vijayawada about 6 years back. Subsequently,
P.W.1 came to know that A.1 eloped with the deceased and lodged a report against A.1 in Mandavalli Police Station. On that Mandavalli
Police called both A.1 and deceased to the Police Station and after knowing that they performed their marriage at ‘Kanaka Durgamma’ temple and leading conjugal life affected compromise through both side elders and allowed them to lead marital life at her in laws house situated at Pedatummidi village.
2.3. P.W.1 and the deceased blessed with two children. Since the birth of children, A.1 to A.3 started humiliation for not getting dowry and made comments that she belongs to ‘Gowda’ community, harassed the deceased both mentally and physically and sent the
Page No.3 of 61 4
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020. deceased to Kanukollu Village several times. P.W.1 made negotiations with A.1 to A.3 and sent the deceased to the house of accused. The accused accelerated their humiliation and harassment against the deceased for getting dowry. A.1 beat the deceased and sent her to get money for Heavy driving license and construction of their house.
Accordingly, the deceased went to P.W.3’s house and took an amount of Rs.25,000/- for getting license and Rs.15,000/- for construction of house besides gold ear studs weighing one sovereign.
2.4. On 13.09.2017 at about 4.30 A.M., some unknown person telephoned to P.W.4, who is son of P.W.1 and informed that his sister ‘Seetha’ committed suicide by hanging her neck in her residence and disconnected the phone. On that P.W.1 frightened and called to his son-in-law, but there was no response. Then they went to
Pedatummidi village along with village Sarpanch of Kanukollu and found the dead body of the deceased on the cot in her house and covered with bed sheet. Her saree is hanging to the log of the roof and contusion found on the front portion of the neck of the deceased. On that the complainant and his relatives went to Bantumilli Police Station and lodged a complaint stating that the accused Thalari Koteswara
Rao, Thalari Nancharamma and Thalari Venkateswara Rao are responsible for the death of deceased.
2.5. A.1 erected a new hut and shifted his family in to that house. A.1 suspected the fidelity of deceased and used to beat her. On 12.09.2017. P.W.11/owner of the house of accused questioned the accused and instructed to bring the deceased to their house, he will settle the matter. P.W.11 knows the harassment of accused about money for Driving License. A.1 went to the house and informed to the deceased that he put the matter before P.W.11. So saying A.1 left the house. The deceased vexed with her life due to the harassment of
Page No.4 of 61 5
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020. accused and committed suicide by hanging at their house and died. At about 4.00 A.M., A.1 went to the house and noticed the deceased hanging to the log. A.1 informed the same to A.2 and A.3 and
Doddakula Sri Ramulu (L.W.5), over phone L.W.5 went to the spot.
A.1 and L.W.5 removed the saree knot from her neck and laid down her on the cot and found that she was dead. A.1 informed the same to
P.W.11. P.W.11 rushed to the spot along with P.Ws.7 and 8. L.W.5 informed the same to P.W.4 over phone. P.W.1 and his family members went to the spot. P.W.1 presented a report at Bantumilli
Police Station.
2.6. Basing on the report of P.W.1, P.W.14/Head Constable registered a case in Cr.No.96/2017 under Section 304 (B) r/w. 34 IPC of Bantumilli Police Station on 13.09.2017 at 10.30 hours submitted express F.I.Rs., to all concerned and P.W.16/Sk.Hussain, D.S.P., investigated into the case.
2.7. P.W.16 visited the scene of offence, examined the scene of offence in the presence of P.W.12 and Manikonda Subba Rao (L.W.15), prepared rough sketch, got photographed the scene of offence under the cover of observation report dt.13.09.2017 at 12.00 noon.
2.8. The marriage of deceased was performed about 6 years back and she died within 7 years of her marriage. P.W.16 has given a requisition to P.W.15/Thasildar, Bantumilli with a request to conduct inquest over the dead body of deceased.
2.9. P.W.15 conducted inquest over the dead body of deceased on 13.09.2017 in the presence of P.W.12, Manikonda Subba Rao (L.W.15) and Gudavalli Koteswara Rao (L.W.16) and sent the dead body for post mortem examination. P.W.15 recorded the statements of
P.Ws.1 to 4, Doddakula Sri Ramulu (L.W.5) and P.W.5. P.W.15
Page No.5 of 61 6
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020. examined as many as ten witnesses and recorded their detailed statements under Section 161 (3) of Cr.P.C.
2.10. P.W.15/D.S.P., arrested A.1 on 15.09.2017, seized black and dark red colour Cell phone of Celkon Company model
No.C345 in the presence of P.W.12 and Manikonda Subba Rao (L.W.15) under the cover of mediators report dt.15.09.2017 at 4.00
P.M., and sent him for judicial custody. A.2 & A.3 surrendered before the Judicial Magistrate of I Class, Bantumilli and got released on bail.
2.11. Dr. Y.Rama Krishna, Scientific Assistant (L.W.17) examined the material objects and issued chemical analysis report.
2.12. P.W.13/Medical Officer, who conducted autopsy over the dead body of deceased, issued Post Mortem certificate opining that the cause of death should be Asphyxia due to hanging.
2.13. Dr. B.Srinu Naik, Asst. Professor (L.W.19), who examined the Hyoid bone issued his report.
2.14. Thus the evidence collected during investigation clearly established that the accused subjected the deceased to cruelty within seven years of a married woman for want of additional dowry and abetted the deceased to commit suicide, which amounts to dowry death within the meaning of Section 304(B) of IPC. After completion of investigation and after receipt of all reports, P.W.17/Md.Mahaboob
Baha, Sub Divisional Police Officer, Machilipatnam filed charge sheet against A.1 to A.3.
3. Learned Judicial Magistrate of First Class, Bantumilli took cognizance of the offences punishable under Sections 304(B), 306 r/w.
34 of IPC and under Sections 3 & 4 of Dowry Prohibition Act, 1961 against A.1 to A.3. On production of accused, the learned Jurisdictional
Magistrate furnished copies of the case record as contemplated under
Section 207 of Cr.P.C. Subsequently, the case was committed to this
Page No.6 of 61 7
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020. Court under Section 209 (a) of Cr.P.C., notifying the committal of the case to the Public Prosecutor, District Court, Krishna, Machilipatnam.
4. A.1 to A.3 made their appearance through their counsel.
Upon hearing the arguments of the learned Public Prosecutor and the learned counsel for A.1 to A.3 on Charges and on perusal of the record, this court framed the charges Under Sections 304-B, 306, 302 of Indian Penal Code, 1860 and U/s. 3 & 4 of Dowry Prohibition Act, 1961. The said charges were read over and explained to A.1 to A.3 in
Telugu language as per Section 228 of Cr.P.C., and questioned them whether they plead guilty of the offences charged or claim to be tried.
A.1 to A.3 pleaded not guilty and had claimed to be tried. Therefore, this Court fixed Trial Schedule.
5. During the trial, the prosecution examined P.Ws.1 to 17 out of 23 witnesses cited in the charge sheet and got marked Ex.P.1 to
Ex.P.23 and material objects M.Os.1 & 2. After completion of the prosecution evidence the accused were examined under Section 313 of
Cr.P.C., explaining them the incriminating material and evidence appearing against them in Telugu language. A.1 to A.3 termed the entire incriminating evidence adduced against them by the prosecution as false and reported no defence evidence for them. Hence, the case is posted for hearing arguments of both sides.
6. Heard learned Public Prosecutor and the learned counsel for A.1 to A.3. I have perused the entire material available on record.
7. Now, the point that emerges for determination in this case is:
Whether prosecution has proved that A.1 to A.3 had committed offences punishable under Sections 304(B), 306, 302 of IPC and under Sections 3 & 4 of Dowry Prohibition Act, 1961 beyond all reasonable doubts?
Page No.7 of 61 8
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020. P O I N T:-
8. Before adverting to the factual matrix of the case, it is pertinent to refer to the provisions of Sections 304(B), 306, 302 of IPC and under Sections 3 & 4 of Dowry Prohibition Act, 1961.
SECTION 304-B IPC “304-B. Dowry death:- (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or, in connection with, any demand for dowry, such death shall be called ‘dowry death,’ and such husband or relative shall be deemed to have caused her death.
Explanation: - For the purpose of this sub-section, ‘dowry’ shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may be extended to imprisonment for life.”
SECTION 306 IPC “306. Abetment of suicide:- If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”
SECTION 302 IPC:
PUNISHMENT FOR MURDER:
“Murder:- Except in the cases hereinafter excepted culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or - Whoever commits murder shall be punishable with death, or (imprisonment for life), and shall also be liable to fine.
Secondly – If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or -
Thirdly – If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is
Page No.8 of 61 9
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020. sufficient in the ordinary course of nature to cause death, or -
Fourthly – If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.” “Punishment for Murder:- Whoever commits murder shall be punished with death, or imprisonment for life), and shall also be liable to fine.”
SECTIONS 3 & 4 DOWRY PROHIBITION ACT, 1961, “3. Penalty for giving or taking dowry.— (1) If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable [with imprisonment for a term which shall not be less than [five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more]: Provided that the Court may, for adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than [five years]” “4. Penalty for demanding dowry.—If any person demands, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years and with fine which may extend to ten thousand rupees: Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months.” 9. Importance of framing of Alternative charges in case of Dowry death Under Sec.302 and 304-B of IPC:-
In S.N. Mukherjee v. Union of India 1990 Cr L J 2148 it is held that two charges framed one alternative to the other conviction under the first charge and acquittal under second is legal. Sec.302 and 304 B I.P.C., are not mutually exclusive. In Santi v. State of
Haryana 1991 Cr.L.J 1713 (SC) it is held that charges under Secs. Page No.9 of 61 10
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020. 304-B and 498-A IPC should be framed and if the case is established the accused can be convicted under both the sections but no separate sentence need be awarded under Sec. 498-A of IPC in view of substantive sentence for the major offence under Sec. 304-B of IPC.
10. A person found guilty under Sec. 302 of IPC is automatically exonerated under Sec. 304-B IPC. Contrasted with Sec.
300 read with Sec. 302 IPC, Sec. 304-B is constricted in time, otherwise Sec. 302 would not be applicable where the victim kills herself as laid in Sidram v. State (1993) 1 DMC 204 (Bom.) DB,
11. In a case of dowry death actual participation of the husband or his relative in commission of the offence of death is not required as laid down in Vadde Rama Raw v. State 1990 Cr.L.J 1666. Therefore, the law does not enjoin a duty on the prosecution to lead evidence of such character who is almost impossible to be led or of any rate extremely difficult to be led. The duty of the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case.
12. In the light of above aspect which is required to be proved by the prosecution in its evidence, of course, the initial burden of proving that A.1 to A.3 committed ‘dowry death,’ ‘abetted’ the deceased to commit suicide or committed ‘murder’ of the deceased, demanded and took dowry is on the prosecution.
13. Learned Public Prosecutor argued that the death of the deceased occurred within 7 years of marriage of deceased with A.1.
The marriage of deceased and A.1 took place in the month of
September, 2011 and the death of deceased is on 12.09.2017 i.e., within 7 years of marriage of deceased. Both deceased and A.1 fell in love and they both got married at ‘Kanaka Durgamma’ Temple,
Vijayawada. Father of deceased died during childhood of the deceased
Page No.10 of 61 11
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020. and she was brought up by her grandmother/PW.3 and paternal uncle/P.W.1. The deceased went to the house of A.1 to lead conjugal life and for some time they lived happily. Out of their wedlock two male children were born to them. Accused used to harass the deceased both physically and mentally on the ground that the community of deceased was different to that of accused and as she did not bring dowry and other valuable articles and also demanding to bring dowry as if A.1 married any other girl of their community, they would get handsome dowry and valuable articles and the accused used to drove the deceased to the house of P.W.1 and P.W.3. P.W.1 and
P.W.3 used to pacify the deceased and sent to the house of A.1 several times. Later, accused started harassing the deceased for bringing amount towards construction of house for Rs.15,000/- and also Rs.25,000/- for obtaining bus driving license. P.W.3 gave the said amount and also ear studs weighing one sovereign to the deceased to satisfy the accused. After some time the accused again started harassing the deceased. On 13.09.2017 some unknown person telephoned to P.W.4 and informed that his sister ‘Seetha’ committed suicide by hanging. In order to prove the case of prosecution, the prosecution examined P.Ws.1 to 17 and got marked Exs.P.1 to P.28 and M.Os.1 & 2.
14. On the other hand, it is the argument of learned defence counsel that the marriage of deceased and A.1 was a love marriage.
A.1 belongs to ‘Yadava’ community whereas the deceased belong to ‘Gowda’ community. The deceased has no parents and she was brought up by P.W.1 and P.W.3, who are senior paternal uncle and grandmother of deceased. The deceased used to complain that she was suffering from severe stomach ache and that she used to express
before her relatives that she was unable to bear the stomach ache and
Page No.11 of 61 12
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020. she wants to die. Out of the prosecution witnesses P.W.1, P.W.3,
P.W.4, P.W.8, P.W.9, P.W.10 and P.W.11, who are material witnesses turned hostile and they did not support the case of the prosecution.
P.W.2, P.W.6 and P.W.9 are maternal aunts and P.W.5 is younger sister of deceased and thus they are related to the deceased and they are interested witnesses. Therefore, the prosecution failed to establish that soon before the death of deceased A.1 to A.3 subjected the deceased to cruelty and harassment in connection with demand of dowry and further failed to establish with cogent evidence that dowry was paid to A.1 to A.3 or A.1 to A.3 demanded for any dowry. Hence, the prosecution failed to bring home the guilt of A.1 to A.3 for the charges leveled against them.
15. After listening to the arguments of both the prosecution and defence, it is crystal clear that the prosecution case is based on circumstantial evidence and also on the evidence of P.W.5. Before dealing with the matter, let us refer to the legal proposition laid down on the aspect of the circumstantial evidence by the Honourable Apex
Court in Hanumanth Vs. State of Madhya Pradesh and Sharad
Birdhichand Vs. State of Maharashtra 1. In the first cited decision it is ruled, “Circumstantial evidence means a fact on which an inference is to be founded. Evidence which proves or tends to prove factum- probandum indirectly by means of certain inferences or deductions to be drawn from its existence and their connection with facta probantia is circumstantial evidence. Things are presumed from collateral circumstances”.
16. In the second cited decision, the following principles are laid down:
(i)“the circumstances from which the conclusion of guilt is to be drawn should fully established. The 1AIR 1984 SC 1622 Page No.12 of 61 13
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020. circumstances concerned ‘must” and “should” and not ‘may be established’;
(ii)the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say they should not be explainable on any other hypothesis except that the accused is guilty;
(iii)the circumstances should be of a conclusive nature and tendency;
(iv)they should exclude every possible hypothesis except the one to be proved, and
(v)there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused”.
17. The Honourable High Court of Andhra Pradesh in the case of Public Prosecutor of High Court of A.P., Hyderabad Vs.
Gopichatti Rajendran and Another2, basing on the decision of the
Honourable Supreme Court of India i.e., Padala Veera Reddy Vs.
State of A.P3, stated the ingredients required to be proved by the prosecution for the conviction in a case of circumstantial evidence and the said four ingredients mentioned by the Honourable Andhra Pradesh
High Court in the case are more or less the same principles enunciated by the Honourable Apex Court in Sharad Birdhichand’s case mentioned supra. Though the legal proposition about the circumstantial evidence was enunciated by the Honourable Supreme
Court of India in a catena of cases, the Hanuman Case (AIR 1952
SC 343) and Sharad Birdhichand case (AIR 1984 SC 1622) are
the landmark judgments and so the said two decisions are taken as the yardstick for deciding the case on hand that rested on circumstantial evidence.
18. In the 3rd cited decision, the following principle laid down.
(a)In C.CHENGA REDDY Vs. STATE OF A.P 4 it has been observed thus:
22004 (1) ALD (Crl.) 833 (A.P.) 3AIR 1990 SC 79 4(1996 (10) SCC 193) Page No.13 of 61 14
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020. “In as case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence”.
19. In Padala Veera Reddy Vs. State of A.P.5, it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused, but should be inconsistent with his innocence.
20. In the 5th cited decision the following principle laid down in
State of U.P. v. Ashok Kumar Srivastava6, wherein it was held that:
“It was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, that one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.” 5AIR 1990 SC 79 6 1992 Crl.L.J. 1104 Page No.14 of 61 15
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020.
21. By keeping in mind the above noted legal proposition of the Hon’ble Apex Court, let us proceed to analyze critically the evidence borne by the record. The circumstances relied upon by the prosecution are:
1. the death of the deceased was ‘dowry death’;
2. the death of the deceased was the
outcome of abetment of suicide;
3. the death of the deceased was ‘homicidal’;
4. there is demand for additional dowry by A.1 to A.3 and A.1 to A.3 received dowry from the deceased;
5. there is sufficient ‘motive’ for the accused to cause harm to the deceased;
6. the accused was ‘last seen’ in the company of the deceased in their house
at the relevant point of time;
22. It is pertinent to refer the essential ingredients to be satisfied in respect of charges framed:
The essential ingredients to be satisfied to prove the offence of ‘Dowry Death’ are as follows: -
(i)the death of a woman must have been caused by burns or bodily injury or otherwise 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 or harassment by her husband or any relatives of her husband;
(iv)such cruelty or harassment must be for, or in connection with demand for dowry.
23. The essential ingredients to be satisfied to prove the offence of ‘Abetment of suicide’ are as follows: -
(i) there was suicide of a person;
(ii) it was committed in consequence of abetment by the accused.
24. The essential ingredients of the offence of ‘murder’ are as follows:
(1) Death of a human was being caused; (2) Such death was caused by or in consequence of the act of the accused;
Page No.15 of 61 16
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020. (3) Such act was done: -
(a) with the intention of causing death, or
(b) that the accused knew it to be likely to cause death; or
(c) that the injury was sufficient in the ordinary course of nature to cause death.
25. Since the ingredients of the offence in the three charges are intertwined it is desirable and convenient to discern all the three limbs whether the ingredients of Sections 304-B, 306 and 302 of IPC are made out by the prosecution.
26. Admittedly, in the present case, A.1 is husband of deceased, A.2 is mother-in-law and A.3 is father-in-law of the deceased. P.W.1 is senior paternal uncle of deceased, who gave report to police about the occurrence; P.W.3, P.W.6 and P.W.9 are maternal aunts of deceased; P.W.3 is grandmother of deceased; P.W.4 is cousin of deceased; P.W.5 is younger sister of deceased; P.Ws.7 and 8 are co-workers of A.1, P.W.10 is neighbor and P.W.11 is owner of the house of accused; P.W.12 is V.R.O., acted as mediator for Ex.P.11 observation report, Ex.P.12 inquest report and also acted as mediator for seizure of M.O.1 Saree and M.O.2 Celkon cell phone; P.W.13 is
Medical Officer, who issued Ex.P.14 Post Mortem Report; P.W.14 is
Head Constable, who registered Ex.P.19 F.I.R.; P.W.15 is Thasildar, who recorded the statements under Exs.P.20 to P.23; P.Ws.16 and 17 are investigating officers in this case.
27. Admittedly, the death of the deceased in this case is occurred otherwise than under normal circumstances and the death of the deceased is within seven years of her marriage with A.1. Since
P.Ws.1 to 6 in one voice stated that the deceased was given in marriage to A.1 in the month of September, 2011 and the death of deceased is on 12.09.2017, the death of the deceased was occurred within 7 years of her marriage with A.1.
Page No.16 of 61 17
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020.
28. To prove the offence under Section 304-B of IPC with regard to ingredients No. (iii) i.e., soon before her death, the woman must have been subjected to cruelty or harassment by her husband or any other relatives of her husband, the prosecution examined P.W.2,
P.W.5, P.W.6 and P.W.9.
29. The evidence of P.W.2, P.W.5, P.W.6 and P.W.9 are as follows:
a) P.W.2/Borra Nagamalleswari has deposed in her chief- examination that the deceased is daughter of her elder sister; that the father of deceased died during her childhood; since then onwards the deceased had been looked after by P.W.1 and his mother; that the deceased had one sister/P.W.5; that she know A.1 to A.3, who are husband, mother-in-law and father-in-law of deceased respectively; that the deceased was given in marriage to A.1 in the month of
September, 2011; that P.W.1 is her senior brother-in-law; that P.W.3 is elder sister’s mother-in-law and she know P.W.4, who is son of
P.W.1 and that she know Doddakula Sri Ramulu (L.W.5), P.Ws.5 to 10 and Bolla Srinivasa Rao (L.W.10); that about one year three months ago around 4.00 or 4.30 a.m., A.1 informed to P.W.1 over phone that deceased committed suicide by hanging herself to the ceiling of the house and it was informed to P.W.4 by P.W.1; that the above said fact was informed to her by P.W.1; that one of her relatives also rang up and informed about suicide of deceased to her; and that she and all her relatives thronged to the house of deceased and found the deceased was lying on a cot covering with blanket; that she noticed the saree worn by the deceased was clinging to the ceiling of the house; that she observed ligature marks around the neck of deceased; that P.W.1 gave report to police, that, police examined her and recorded her statement; that M.R.O., also recorded her statement and
Page No.17 of 61 18
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020. obtained her signature under Ex.P.5; that the deceased and A.1 earlier loved each other and got married in Kanaka Durga Temple in the month of September, 2011 and that P.W.1 agreed their marriage; that police held process of garlanding in between deceased and A.1 in police station; later the deceased went to the house of A.1 for leading conjugal life; later A.1 and deceased were blessed with two children; during her life time, after marriage, the deceased came twice or thrice to her home; that the deceased used to inform her with sorrow that
A.1 used to beat the deceased on the instigation of A.2 on the ground of bringing additional dowry and the deceased belonging to another community and because of love marriage A.1 could not get any dowry from the deceased; that A.1 and A.2 used to harass the deceased saying that the deceased has become a problem for them and had A.1 got married any other girl belonging to their community i.e., Yadava,
A.1 would have got dowry and he married only a ‘Gowda’ community girl; that A.1 drove the deceased to the home of P.W.3 for bringing
Rs.25,000/- for getting driving license and Rs.15,000/- for construction of house and for gold ear studs; that P.W.3 arranged the above said money and gold item to deceased for giving to A.1; the above said facts were informed by the deceased and P.W.3 to her; that eight months prior to the death of deceased she came to her house after attending a funeral ceremony of their relatives and stayed in their house for three days; later A.1 came to their house and took away the deceased; that, three days prior to her death, deceased rang up her and informed that A.1 and A.2 harassed her and wept; that after four days she received phone call about suicide of the deceased and the deceased died in the house of her in-laws; that A.1 to A.3 subjected the deceased to cruelty and harassment which provoked the
Page No.18 of 61 19
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020. deceased to commit suicide; that she was present when inquest was conducted on the body of deceased.
b) P.W.5/Kagitha Kalyani deposed in her chief-examination that the deceased is her elder sister; that the father of deceased died during the childhood of the deceased and since then, the deceased had been looked after by P.W.1 and his mother; that she know A.1 to A.3 being husband, mother-in-law and father-in-law of deceased, respectively; that the deceased was given in marriage with A.1 in the month of September, 2011; that her elder sister/deceased used to attend agricultural coolie works before her marriage; that A.1 was also attending agricultural coolie works; that due to the acquaintance in between A.1 and the deceased, it lead to love in between them and got married in the premises of Goddess Durga Temple, Vijayawada in the year 2011; that though report was lodged with police, mediation was held in between A.1 and deceased in police station and police got exchanged garlands in between them as a mark of performing marriage; that the deceased and A.1 lived happily for some time and they blessed with two male children; that the deceased on and off came to her house and informed her that she was subjected to cruelty and harassment on the ground that the community of the deceased was different to that accused and also harassed the deceased as she did not bring dowry and other valuable articles; that some days thereafter, the deceased came to their house and informed that she was necked out by the accused as she did not bring any valuable articles and dowry for getting bus driving license and for constructing a house; that P.W.3 and P.W.1 gave Rs.25,000/- for obtaining driving license and Rs.15,000/- for construction of house and also one sovereign of gold ear studs to the deceased and sent the deceased to her matrimonial house; that on 12.09.2017 P.W.4 got telephonic
Page No.19 of 61 20
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020. information that the deceased committed suicide by hanging herself in her in-laws house; that thereupon, she and all her relatives thronged to the house of deceased and saw the body of deceased was lying in the house of deceased; that she noticed a saree was clinging to the ceiling of the house; that they suspected that the deceased was killed by accused; that the deceased used to reveal that she was severely harassed by the accused for bringing dowry and other valuable articles.
c) P.W.6/P.Bhagya Lakshmi deposed in her chief-examination that the deceased is her younger sister’s daughter; that the father of deceased died during the childhood of the deceased and since then the deceased had been looked after by P.W.1 and his mother; that she know A.1 to A.3 being husband, mother-in-law and father-in-law of the deceased, respectively; that the deceased was given in marriage with
A.1 in the month of September, 2011 and she know P.Ws.1 to 5; that she know that the marriage in between the deceased and A.1 was performed in Goddess Durga Temple at Vijayawada as a result of love affair in between them; that the mediation was taken place in police station before the elders and garlands were exchanged by police in between A.1 and deceased as a mark of their wedding; that the deceased was sent to marital home of A.1 for leading conjugal life; that for some time the deceased and A.1 lived happily and they were blessed with two male children; that the deceased used to reveal them that she was severely subjected to cruelty and harassment by the accused on the ground that A.1 married the deceased, who is belonging to another community and she did not bring any dowry and valuable articles and if, A.1 married to any girl of their community, they would have got handsome dowry and valuable articles, that P.W.1 and P.W.3 pacified the deceased and sent her to the house of A.1 for
Page No.20 of 61 21
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020. several times; that, again the accused started harassing the deceased for bringing amount towards construction of house for R.15,000/- and for Rs.25,000/- for obtaining driving license; that P.W.3 gave the said amount and gold ear studs weighing one sovereign to the deceased to appease all the accused; that the above said fact was informed to her by the deceased Seetha; that on one day at about one year three months back, they received a telephonic information that the deceased was killed by accused and that, immediately they rushed to the house of deceased; that she noticed the body of deceased was lying in the house of accused; that she noticed a saree was clinging to the ceiling in the house; that she noticed severe ligature mark around the neck of deceased.
d) P.W.9/Pilli Ganga deposed in her chief-examination that she know the deceased/Seetha, who is daughter of her elder sister; that the deceased is wife of A.1; that she know A.1 to A.3 being husband and in-laws of the deceased and that, she know P.W.1 to P.W.6; that she came to know that about six years ago, deceased went to attend agricultural coolie works whereat she developed love affair with A.1; that they both got married at Kanakadurga Temple, Vijayawada; that subsequently mediation was held in between the married couple and elders and the police settled the dispute and sent A.1 and deceased to her in-laws house; that for sometime A.1 and deceased lived happily as wife and husband and blessed with two male children; that the deceased now and then informed her over phone that she was subjected to cruelty and harassment by all the accused as she belonged to different community to that of them and if A.1 was given in marriage with a girl of their community, A.1 would have got dowry and other valuable articles; that the deceased also came to their house and informed the above said fact to her directly; that she came to
Page No.21 of 61 22
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020. know that the deceased was beaten, abused and necked out for bringing dowry and valuable articles to the house of P.W.1; that,
P.W.1 convinced the accused and deceased and sent her to marital home; that the deceased informed her that she was driven out for bringing an amount of Rs.25,000/- for obtaining driving license and
Rs.15,000/- for construction of a house and one sovereign of gold ear studs; that P.W.1 and P.W.3 gave to the deceased an amount of
Rs.25,000/- for obtaining driving license and Rs.15,000/- for construction of a house and one sovereign of gold ear studs, as per the demand of A.1 to A.3; that three days prior to the death of deceased, she rang up her and informed that she arranged Rs.25,000/- and
Rs.15,000/- and one sovereign of gold as per the demand of accused, yet the deceased subjected to cruelty and harassment by all the accused; that later she came to know through P.W.4 that Seetha died by hanging herself; that she went to the house of deceased and saw the body of deceased was laid down on a cot in her house; that she noticed a saree which was wore by the deceased was clinging to the ceiling of the house of A.1; that she believe that the deceased was killed by all the accused as the deceased did not bring the expected amount of dowry from her relatives.
30. The remaining material witnesses are turned hostile and they did not support the case of the prosecution.
31. It is the version of P.Ws.2, 5, 6 and P.W.9 that A.1 drove the deceased to her maternal house for bringing dowry of Rs.25,000/- for getting driving license and Rs.15,000/- for constructions of house and for gold ear studs, P.W.1 and P.W.3 alleged to have arranged the same. Further, the deceased used to come to the houses of P.Ws.2, 5, 6 and 9 and reveal that she was severely harassed by A.1 to A.3 for bringing dowry and other valuable articles. Thus the cruelty and
Page No.22 of 61 23
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020. harassment towards the deceased must be or in connection with demand for dowry. It is also the evidence of P.W.2 that A.1 to A.3 subjected the deceased to cruelty and harassment which provoked the deceased to commit suicide. It is also the evidence of P.W.5 that they suspected that the deceased was killed by the accused.
32. In the cross-examination P.W.2 denied the suggestion she never got given the report of P.W.1 to Police and she did not scribe the report of P.W.1 to police. P.W.2 admitted in her cross examination she denied the suggestion that there is no relationship in between the deceased and herself as the deceased is native of Kanukollu village of
Mandavalli Mandal and she is native of Machilipatnam.
33. In the cross-examination P.W.5 deposed that she do not know the distance between Kanukollu village and their village
Viswanadapalem. She admitted that she know the names of A.1 and
A.2 but she do not know the name of A.3. She further admitted that she cannot say the exact date, month and year in which she went to
Tummidi to the house of A.1 and she denied the suggestion that she never went to the house of deceased at Tummidi and deceased never informed anything to her against accused. She also admitted that she do not know the name of husband of P.W.2.
34. In the cross-examination P.W.6 deposed that she cannot say the date, month and year in which the deceased informed to them about the alleged harassment and she came to their house and also she do not know the date month and year in which P.W.3 gave cash of
Rs.25,000/-, Rs.15,000/- and one sovereign of gold ear studs to the deceased as per the demand of accused. She also admitted that she do not know the names of two children of deceased. She denied the suggestion that accused never harassed the deceased on the reason of she belonged to different community. She also admitted that she does
Page No.23 of 61 24
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020. not know the names of A.2 and A.3 and she do not know the full name of A.1. She also denied the suggestion that neither she nor her sisters gone to the house of accused either before the death of deceased or subsequent to her death to see the children of the deceased. She also admitted that P.W.5 used to go to the house of deceased for seeing the children.
35. In the cross-examination P.W.9 deposed that she cannot say the phone number of deceased as she is illiterate. She also denied the suggestion that she do not know the date month and year in which
P.W.3 gave to the deceased an amount of Rs.25,000/- for obtaining driving license and an amount of Rs.15,000/- for construction of a house and one sovereign of gold ear studs as per the demand of accused.
36. As seen from the statements of P.W.2, P.W.5, P.W.6 and
P.W.9 under Section 161 of Cr.P.C., they did not state before Police that deceased came to their respective houses and informed them that she was subjected to cruelty and harassment by all the accused for bringing dowry and valuable gold articles.
37. As seen from the cross-examination of P.W.2, P.W.5,
P.W.6 and P.W.9, it appears that they have no much closeness with the deceased and they are living at a distance from the village of deceased and even they do not know the names of accused and children of deceased. It appears that P.W.2, 5, 6 and 9 are not in regular touch with the deceased. Therefore, they could not elicit any specific overt act or incident with regard to subjecting the deceased to cruelty and harassment by her husband or any relatives of her husband soon before her death.
38. The learned Public Prosecutor argued that the evidence of
P.Ws.2, 5, 6 and P.W.9 is convincing and trustworthy and their
Page No.24 of 61 25
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020. evidence cannot be disbelieved or discarded for the simple ground that they have given some exaggerated version and in support of his contention he relied on a decision reported in Shaik Farooq Basha
Vs. State of A.P., rep. by its Public Prosecutor, High Court of
Andhra Pradesh 2019 (3) Alt (Crl.) 241 (DB) (A.P.) their lordships observed at para Nos.38 and 42 that:
“38. It is settled law while appreciating the evidence of the witnesses, if any exaggerated versions are given by the witnesses, that by itself is not sufficient to disbelieve the testimony of the said witnesses in toto. Court has to separate the grain from the chaff and ascertain whether there is any ring of truth on the material particulars spoken to by the witnesses to establish the guilt of the accused for the charges leveled against them. In this context, it is apt to consider the Judgment of the Privy Council rendered in the case of Bankim Bihari Maiti v. Shrimati Matangini Dasi (9) AIR 1919 Privy Council 157, wherein it is held as follows: ‘in Indian litigation it is not safe to assume that a case must be a false case if some of the evidence in support of it appears to be doubtful or is clearly untrue. There is on some occasions a tendency amongst litigants in India, as elsewhere, to back up a good case by false or exaggerated evidence.” “42. The legal position is now luculent that while appreciating the evidence of the witnesses, the testimony of the witnesses which is otherwise convincing, trustworthy and reliable, cannot be disbelieved or discarded on the simple ground that they have given some exaggerated version and added embroidery to the prosecution story, in their anxiety to improve the case or for the fear of being disbelieved. It is the duty of the Court to cull out the nuggets of truth from the evidence. Ultimately, if the Court finds a ring of truth in the main version of the prosecution case, from the said evidence on record, the case of the prosecution cannot be thrown overboard causing grave injustice to the victims.”
39. In the above said decision, the crucial evidence on record relating to the harassment meted out by the deceased in the hands of
A.1 to be considered is the dying declarations of deceased which are marked as Ex.P.9 and Ex.P.11, statement given by the deceased to learned Magistrate and Police. The evidence of P.Ws.1 to 4 and 8 further proves that inspite of raising panchayats and advising A.1 to Page No.25 of 61 26
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020. look after the deceased with love and affection without making any demand for additional dowry, A.1 continued to harass her.
40. In the instant case, the facts are different there is no dying declaration or statement recorded by the police before the death of the deceased to corroborate the same with the evidence of witnesses.
Thus, the decision relied on by the learned Public Prosecution in Shaik
Farooq Basha case (supra) is not applicable to the facts of the present case on hand.
41. It is also the argument of learned Public Prosecutor that in the absence of any defence evidence, the Court has to draw presumption under Section 113-B of Indian Evidence Act in support of his contention he relied on the decision in Jagdish Chand and another Vs. State of Haryana 2019 (1) ALT (Crl.) 165 (SC) the
Hon’ble Apex Court held that:
“Presumption under Section 113-B of the Indian Evidence Act has to be drawn against the accused and in the absence of any defence evidence to rebut the same, the Court has to hold the accused guilty of the offence under Section 304-B IPC.”
42. In the above cited decision, the dispute is with regard to the ingredients that the death of the deceased is within 7 years of the marriage, though the defence had tried to prove otherwise, namely, that death had occurred beyond seven years of marriage, no concrete evidence in this regard has been forthcoming. Demands for dowry by the accused-appellants as well as the husband and ill- treatment/cruelty, on failure to meet the said demands is evident from the evidence of P.W.6.
43. Here in this case, with regard to ingredients that death must have occurred within seven years of her marriage is no doubt proved, but whether the deceased has been subjected to cruelty or harassment by her husband or any relative of her husband soon before
Page No.26 of 61 27
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020. her death and such cruelty or harassment must be for, or in connection with demand for dowry is not proved. Thus the decision relied on by the learned Public Prosecutor in Jagdish Chand and another case (supra), has no application to the case on hand.
44. The marriage of deceased with A.1 is a love marriage, initially A.2 and A.3 objected for the marriage, later they compromised and allowed the deceased as their daughter-in-law. Both deceased and
A.1 lived together happily for some time and they blessed with two male children. When the marriage itself is an inter-caste marriage and love marriage we cannot expect any cruelty or harassment towards the deceased in connection with demand for dowry and subjecting the deceased with cruelty and also harassment as the deceased belong to another caste, especially when there is no specific overt act or specific incident elicited from the mouth of any witness. Thus the evidence of
P.W.2, P.W.5, P.W.6 and P.W.9 cannot be taken into consideration for the offence punishable under Section 304-B IPC for lack of ingredients of subjecting the deceased to cruelty or harassment by her husband or any relative of her husband soon before her death and cruelty or harassment must be in connection with demand for dowry.
45. The learned defence counsel argued that the evidence of
P.Ws.2, 5, 6 and P.W.9, who deposed against A.1 to A.3 are related witnesses and their testimony is interested testimony and they only presumed that A.1 to A.3 would have harassed the deceased and subjected her to cruelty, but there is no specific incident or overt act with regard to harassment and subjecting her to cruelty is elicited by way of evidence. Thus, the evidence of P.Ws.2, 5, 6 and P.W.9 is not sufficient to convict A.1 to A.3. To base conviction under Section 304-B of IPC, the ingredients of offence shall be required to be established is that ‘soon before her death’ the deceased was subjected to cruelty and
Page No.27 of 61 28
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020. harassment ‘in connection with the demand for dowry,’and he placed strong reliance on the proposition of law laid down in the decision in
Mahesh Kumar Vs. State of Haryana 2019 (2) ALD (Crl.) 710
(SC) wherein the Hon’ble Supreme Court held at para Nos.14 to 17 are as follows:
14. In the present case, the prosecution relies upon the statement of PW3 Sohan Lal-father and PW4 Rajbir-brother of the deceased which has been made basis of conviction by Courts below. However, we find that such statements are not sufficient to prove that the deceased was treated with cruelty relating to demand of dowry soon
before her death in the absence of independent evidence
though available but not examined. A memorandum Ex.PE1 dated 25.01.1992 was relied upon and said to be executed by the in-laws of the deceased in the presence of members of Panchayat. But none of the Panchayat Members have been examined to prove the settlement arrived at. Therefore, the oral statements cannot be relied upon in view of the letters produced by the prosecution.
15. The prosecution also relies upon letter Ex.PF1 written by the deceased to her father. The letter is to the effect that her in-laws have started hating and suspecting the deceased’s father, therefore, he could not give them the gold chain but only cash. Such letter does not show that anything was demanded by the appellant. The date of sending such letter has not been proved by the prosecution, therefore, it cannot be said that such letter was written soon before her death. Similarly, another letter produced by the prosecution is Ex.PK1 which is a letter of the deceased to her brother-in-law (sisters- husband) stating that she has no problem with her mother-in-law and sister-in-law but her husband beats her daily. The date of this letter has not been proved nor does such letter lead to any inference for the demand of dowry by the husband of the deceased. Further, an additional letter relied upon by the prosecution is Ex.PG1 dated 25.5.1992, wherein the deceased has written that she is unhappy and harassed by her in-laws inasmuch as her mother-in-law does not like the food she cooks. Again, there is no inference of any demand of dowry in such letter as well. Therefore, the documentary evidence in the shape of letters does not support the story of the prosecution.
16. In view of the judgments referred to above, the prosecution has failed to prove either the demand of dowry or that any such demand was raised soon before her death. Therefore, the essential ingredients of offence under Section 304-B of IPC are not proved by the prosecution. The prosecution has even failed to prove the initial presumption under Section 113-B of the Evidence Act.
17. We find that the prosecution has failed to prove the allegations levelled against the appellant beyond reasonable doubt. Consequently, we allow the present Page No.28 of 61 29
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020. appeal and set aside the conviction of the appellant and set him at liberty as long as he is not involved in any other case. Bail bonds shall stand discharged.
46. In the above case, the prosecution relied upon the statements of father and brother of deceased and letters alleged to have been written by the deceased to her father and her brother-in- law (sisters-husband), which has been made basis for conviction by the Courts below, and the date of alleged letters have not been proved nor does such letters lead to any inference for the demand of dowry by the husband of deceased and such statement of brother and father are not sufficient to prove that the deceased was treated with cruelty in the absence of independent evidence.
47. Here in this case also P.W.2, P.W.6 and P.W.9 are maternal aunts and P.W.5 is sister of the deceased, who are related to deceased are interested witnesses and their evidence is not sufficient to prove that deceased was treated with cruelty relating to demand of dowry soon before her death in the absence of any independent evidence. Thus, the decision relied on by the learned defence counsel in Mahesh Kumar case (supra) is squarely applicable to the facts of the present case on hand.
48. The learned defence counsel also relied on the decision in
Baijnath and others Vs. State of Madhya Pradesh 2017 (2) ALT
(Crl.) 266 (SC) in which the Hon’ble Apex Court held that:
“To attract the provision of Section 304-B of the Code, one of the main ingredients of the offence which is required to be established is that ‘soon before her death’ she has subjected to cruelty and harassment ‘in connection with the demand for dowry’.”
49. In the above cited case it is not clear as to whether the death has been suicidal or homicidal, it is also not proved beyond doubt, the origin and cause of the external injuries. Though the obscurity of the causative factors is due to the putrefaction of the
Page No.29 of 61 30
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020. body, the benefit of the deficiency in proof, logically would be available to the persons charged. In view of the evaluation made above the accused are entitled for benefit of doubt. But the facts in the case on hand is different from the facts of the above cited case.
50. It is the contention of learned defence counsel in regard to relevancy of giving of dowry at the time of marriage, whether the evidence of the prosecution witnesses would suffice to prove the guilt of the accused for the offence punishable under Section 304-B of IPC and in support of his contention he relied on the decision in Nelaturi
Chandra Sekhar Vs. State, S.D.P., Guntur Town, Guntur in 2018 (2) ALT (Crl.) 58 (A.P.) the Hon’ble High Court of Judicature at
Hyderabad for the State of Telangana and the State of Andhra Pradesh their lordships held that:
“Giving of dowry at the time of marriage would not be relevant for assessing the guilt of the accused for the offence under Section 304-B IPC, as the said fact is not one of the ingredients of Section 304-B and the ingredient of Section 304-B is harassment with a demand of dowry soon before the death of the deceased. The proximity between death of the deceased and the harassment by the appellant is the clinching aspect, which would prove the guilt of the accused. The reason for the dullness cannot be inferred to be the harassment of the deceased unless the harassment is independently proved. When material evidence suffers from several inconsistencies and is not sufficient to invoke the presumption adumbrated under Section 113-B of Indian Evidence Act, in order to throw the burden on the accused.”
51. In the above cited decision, the material evidence, which is of P.Ws.1, 6 and 7 suffers from several inconsistencies and is not sufficient to invoke the presumption adumbrated under Section 113-B of Indian Evidence Act, in order to throw the burden on the appellant.
In view of the above, their Lordships set aside the impugned
Judgment.
52. In the present case on hand also, it is clear that the evidence of P.W.2, P.W.5, P.W.6 and P.W.9 is not sufficient to base
Page No.30 of 61 31
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020. conviction on A.1 to A.3 for the charge under Section 304-B IPC, as those witnesses are related to the deceased, interested witnesses and their evidence is suffered from several infirmities as it is not the case of P.W.2, P.W.5, P.W.6 and P.W.9 that the deceased was harassed and subjected to cruelty with a demand of dowry soon before her death and such cruelty and harassment was in connection with demand for dowry. Thus decision relied on by the learned defence counsel is squarely applicable to the facts of the present case. Therefore, it can be held that A.1 to A.3 are entitled for benefit of doubt for the charge under Section 304-B of IPC.
53. Regarding the 2nd charge, Abetment involves a mental process of instigating a person or intentionally aiding that person in doing a thing. Mere active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of an offence under Section 306 of I.P.C.
54. Instigation is to goad, urge forward, provoke, incite, or encourage doing ‘an act.’ To satisfy the requirement of ‘instigation,’ though it is not necessary that actual words must be used to that effect or what constitutes ‘instigation’ must necessarily and specifically be suggestive of the consequences. Yet a reasonable certainty to incite the consequences must be capable of being spelt out. Where the accused had by his acts of omission or by a continued course of conduct, created such circumstances that the deceased was left with no other option except to commit suicide, in which case, an ‘instigation’ may have to be inferred. A word uttered in a fit of anger or emotion without intending the consequences to actually follow, cannot be said to be instigation as held by our Hon’ble Supreme Court in Chitresh Kumar Chopra. v. State (Govt. of NCT of Delhi) (2009) 16 SCC 605 and followed in Parveen Pradhan. v. State of
Page No.31 of 61 32
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020. Uttaranchal (2013) 1 SCC (Crl.) 146 : (2012) 9 SCC 734. Thus, to constitute ‘instigation,’ a person who instigates another has to provoke, incite, urge or encourage the doing of an act by the other by ‘goading’ or ‘urgent forward.’ The dictionary meaning of the word ‘goad’ is a thing that stimulates someone into action; provoke to action or reaction to keep irritating or annoying somebody until he reacts.
55. The evidence of remaining witnesses runs as follows:
a) P.W.1/P.Nageswara Rao/defacto-complainant deposed in his chief-examination that the deceased/Seetha is daughter of his younger brother; his younger brother died during childhood of deceased, since then the deceased had been looked after by him and his mother; that the deceased had one sister/P.W.5 and that he know
A.1 to A.3, who are husband, mother-in-law and father-in-law of deceased respectively; that the deceased was given in marriage to A.1 in the month of September, 2011; that P.W.2 is his junior sister-in- law, P.W.3 is his mother, P.W.4 is his son and that he know Doddakula
Sri Ramulu (L.W.5), P.Ws.5 to 10 and Bolla Srinivasa Rao (L.W.10); that about one and half year ago, someone telephoned to his son/
P.W.4 informing that the deceased Seetha was not feeling well and requested P.W.4 to come; later P.W.4, other relatives and himself went to the house of accused and noticed that the body of deceased was laid in front of the house of A.1; that the deceased used to come to their house and complaining that she was suffering from severe stomach ache and the deceased used to express before him that she was unable to bear the stomach ache and she want to die; he did not give any report with police. Though, the witness admits his thumb impression appearing on the report is that of him, but he stated that he do not know the contents of complaint; the thumb impression on
Page No.32 of 61 33
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020. the report is marked as Ex.P.1 and he further deposed that he do not know how his thumb impression came on the complaint. At this stage, learned Public Prosecutor sought permission of the court to declare the witness as hostile and requested to put the questions in the form of cross-examination. Accordingly permission is granted.
b) P.W.3/Parasa Alivelu Mangamma deposed in her chief- examination that the deceased is her maternal granddaughter; the father of deceased died during her childhood, since then the deceased had been looked after by P.W.1 and herself; that the deceased had one sister/P.W.5; that she know A.1 to A.3 being husband, mother-in- law and father-in-law of the deceased respectively; that the deceased was given in marriage with A.1 in the month of September, 2011; about one and half year ago, somebody telephoned to her grandson/P.W.4 informing that the deceased/Seetha was not feeling well and requested P.W.4 to come; that later she herself, P.W.4, P.W.1 and other relatives went to the house of accused and noticed that the body of deceased was laid in front of the house of accused; that the deceased used to come to their home and complain that she was suffering from severe stomach ache; that the deceased used to express before her that she was unable to bear the stomach ache and she want to die. At this stage, learned Public Prosecutor sought permission of the court to declare the witness as hostile and requested to put the questions in the form of cross-examination. Accordingly permission is granted.
c) P.W.4/Parasa Rambabu deposed in his chief-examination that the deceased is the daughter of his paternal uncle; that the father of deceased died during her childhood and since then she had been looked after by P.W.1 and his mother; that the deceased had one sister/P.W.5; that he know A.1 to A.3 being husband, mother-in-law
Page No.33 of 61 34
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020. and father-in-law of the deceased respectively; that the deceased was given in marriage with A.1 in the month of September, 2011; that about one and half year ago, somebody telephone to him and informed that the deceased/Seetha was not feeling well and requested him to come; that later P.W.1 to P.W.3, some other relatives and he himself went to the house of accused and noticed the body of deceased was laid in front of the house of A.1; that the deceased used to come to their home and complain that she was suffering from severe stomach ache; that the deceased used to express before him that she was unable to bear the stomach ache and she want to die. At this stage, learned Public Prosecutor sought permission of the court to declare the witness as hostile and requested to put the questions in the form of cross-examination. Accordingly permission is granted.
d) P.W.12/Naragani Amala Rama Krishna, Village Revenue
Officer deposed in his chief-examination that he has been working as
Village Revenue Officer at Peddatummidi Village of Bantumilli Mandal from 2014, he know L.W.15/Manikonda Subba Rao, who is working as
VRA of Peddatummidi village; that he know A.1 to A.3 as they are residents of their village; that on 13.09.2017 at about 1.00 p.m., at the request of P.W.16 he acted as mediator along with L.W.15 for observing scene of offence; that they observed the scene of offence and prepared scene observation report under Ex.P.11 and it was signed by him, L.W.15 and P.W.16; that under the cover of Ex.P.11 the police seized one orange colour saree with violet colour flowers; that M.O.1 is the said saree; that they observed M.O.1 was clinging to the log attached across the roof of house of accused; that he can identify M.O.1 if it is shown to him; that M.O.1 is the said saree, which was seized; that that police got photographed the scene of offence and on the same day at about 2.00 p.m., P.W.15/Tahsildar conducted
Page No.34 of 61 35
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020. inquest over the body of the deceased; that he acted as panchayatdar along with L.W.15 and L.W.16/Gudavalli Koteswara Rao in the presence of blood relatives of the deceased; that they being the inquestdars unanimously opined that the deceased died by hanging herself to the ceiling of the house of A.1 due to the cruelty and harassment meted out by A.1 to A.3, who are being the husband and in-laws of the deceased; that Ex.P.12 is the inquest report, dt.13.09.2017 at 2.00 p.m.; that on 15.09.2017 around 4.30 p.m., at the request of P.W.16, he acted as mediator along with L.W.15 in arresting A.1; that when they went to the house of A.1, on seeing them, A.1 tried to skulk away, then P.W.16 with the help of his staff caught hold A.1 and brought before them; that A.1 voluntarily admitted his guilt before him and L.W.15; that the police reduced those admission into writing in a Mahazarnama and the admissible portion of said Mahazarnama is marked as Ex.P.13; that A.1 himself took a cell phone of Celkon company from a drum meant for keeping rice and handed over to P.W.16; that black and red colour cell phone of Celkon company bearing C345 is M.O.2 seized under the cover of
Ex.P.13; that he can identify M.O.2 if it is shown to him; that the witness identified M.O.2 that that Ex.P.13 was signed by A.1, L.W.15 and P.W.22.
e) P.W.14/T.Srinivasa Rao, Head Constable of Special Branch,
Machilipatnam deposed in chief-examination that he has been working as Head Constable, Special Branch, Machilipatnam and previously he worked as Head Constable, Bantumilli Police Station; that on 13.09.2017 around 10.30 p.m., while he was present in Police Station,
P.W.1 came to police station and presented a written report containing
Ex.P.1 with him and that he registered the report as a case in Crime
No.96 of 2017 for the offences punishable U/s.304 (B) r/w 34 of IPC
Page No.35 of 61 36
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020. and submitted FIR to the Jurisdictional Magistrate; that Ex.P.18 is the report given by P.W.1 and Ex.P.19 is he FIR.; that P.W.1 affixed his thumb impression on Ex.P.18 before him and that he read over the contents of Ex.P.18 to P.W.1 and the same was admitted by P.W.1 to be true and correct; that the investigation was handed over to P.W.16 as the case is grave one.
f) P.W.15/D.Vijaya Sekhara Rao, Special Deputy Collector deposed in his chief-examination that he has been working as Special
Deputy Collector, Machilipatnam Urban Development Authority from 12.02.2019 and that previously he worked as Tahsildar, Bantumilli
Mandal; that on 13.09.2017 around 2.00 p.m., he conducted inquest over the body of deceased Seetha in relation to Crime No.96 of 2017 of Bantumilli Police Station for the offence punishable U/s.304 (B) of
IPC in the presence of panchayatdars and blood relatives of the deceased; that he referred the body of Seetha to autopsy through lady constable; that the panchayatdars, blood relatives and he himself came to a unanimous conclusion that the deceased might have died due to committing suicide by hanging herself because of unbearable torture meted out by the accused in relation to demand of dowry and valuable articles or the blood relatives opined that A.1 to A.3 beat the deceased to death and hanged her to the ceiling of the house and that, he obtained signatures of panchayatdars and blood relatives on
Ex.P.12 inquest report; that at about 4.00 p.m., inquest was concluded; that P.W.2 and P.W.5 gave statements to him, which were marked as Ex.P.5 and Ex.P.6 and he also recorded the statements of
P.W.1 to P.W.5 and L.W.5/Sriramulu on 13.09.2017 and obtained their signatures on their respective statements; that Ex.P.20 to Ex.P.23 are the statements of P.W.4, P.W.3, P.W.1 and L.W.5/Sriramulu; that he
Page No.36 of 61 37
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020. read over the contents of statements to the blood relatives and obtained their signatures.
g) P.W.16/Sk.Hussain, Assistant Commissioner of Police deposed in his chief-examination that presently he is working as Assistant
Commissioner of Police, Traffic, Vijayawada city since 11.08.2019 and that previously he worked as DSP, Traffic, Machilipatnam and held the
Additional Charge of Bandar Sub-Divisional as per the orders of the
then Superintendent of Police, Krishna District from 11.08.2017 to 04.10.2017; that on 13.09.2017 at about 10.30 a.m., H.C.No.1076 of
Bantumilli Police Station informed him over telephone about receipt of
Ex.P.18 report, then he instructed him to send two Police Constables to the scene of offence to safeguard the scene and also instructed him to send requisition to the Tahsildar, Bantumilli Mandal to come over to the scene of offence and conduct inquest over the dead body of the deceased; that he left his office along with his staff at 11.30 a.m., and reached the scene of offence, which is situated at the house of deceased as well as A.1 to A.3 in Pedatummidi village of Bantumilli
Mandal; that the H.C.No.1076 handed over the copy of express FIR and he gone through the same and noted the contents therein and took up investigation and that, he secured the mediators P.W.12 and
L.W.15 (Manikonda Subba Rao) with the help of P.C.No.1072, explained them about the case facts and requested them to act as mediators at the time of scene observation, for which they accepted to act as mediators; that he examined the scene of offence in the presence of mediators, which is situated in the thatched hut of accused near Z.P. High School, Bantumilli village, seized Goldspot colour saree/M.O.1 with brinjal flower design under the cover of Ex.P.11 observation report, duly attested by the mediators; that he prepared rough sketch of the scene of offence and got photographed and
Page No.37 of 61 38
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020. videographed the scene of offence with the help of private photographer by name Allam Madhu; that Ex.P.24 are photographs (6 in number) along with CD and Ex.P.25 is rough sketch prepared by him; that the Tahsildar, Bantumilli Mandal/P.W.15 secured the presence of panchayatdars, blood relatives of the deceased and served summons on them, held inquest on the dead body of the deceased on 13.09.2017 from 2.00 p.m., to 4.00 p.m., and that, during the inquest, the Tahsildar, Bantumilli examined P.W.1 to P.W.5 and
D.Sriramulu/L.W.5 and recorded their statements; that the Tahsildar /P.W.15 forwarded the dead body of the deceased to the Government
Hospital, Machilipatnam through W.P.C.No.1635 of Bantumilli Police
Station for conducting postmortem examination and issuance of Post
Mortem Certificate and handed over to him the copies of inquest report under Ex.P.12 and the statements of P.W.1 to P.W.5 and
D.Sriramulu/L.W.5; that he secured the presence of P.W.1 to P.W.6,
P.Ws.9, 10 and L.W.5/D.Sriramulu, L.W.10/Bolla Srinivasa Rao and recorded their statements and that on 15.09.2017 at 2.30 p.m., he received credible information about you Talari Vasu Koteswara Rao and he left the Bandar Traffic PS and visited Bantumilli PS at 3.30 p.m., secured the mediators, P.W.12 and another through P.C.No.1072 of Bantumilli Police Station and informed them to act as mediators at the time of arrest of accused, for which they accepted as mediators; that he rushed to the house of accused situated at Pedatummidi village of Bantumilli mandal along with Sub Inspector of Police of Bantumilli
PS, staff and mediators, arrested A.1 at 5.30 p.m., after explaining the grounds of arrest, recorded his confession statement under Ex.P.13 and seized Celkon cell phone mode No.C345/M.O.2 in the presence of mediators under the cover of mediatornama and brought A.1 to the
Police Station at 6.00 p.m. and remanded to judicial custody; that on
Page No.38 of 61 39
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020. 02.10.2017 he forwarded the material objects i.e., Hyoid Bone to the
Professor, Forensic Science, Siddartha Medical College, Vijayawada to the Assistant Director, RFSL, Vijayawada for chemical examination through P.C.No.1792 of Bantumilli PS and that he exhibited Ex.P.26 letter of advice along with covering letter for forwarding the hyoid bone and Ex.P.27 letter of advice along with covering letter for forwarding the stomach contents etc., and that later, he handed over the charge to P.W.17 and resumed to regular post; that P.Ws.1, 3, 4 and 10 had stated before him as in Ex.P.2 to Ex.P.4 and Ex.P.9 respectively.
h) P.W.17/Md.Mahaboob Basha, DSP of Machilipatnam deposed in his chief-examination that presently he is working as DSP,
Machilipatnam since 09.10.2017; that on 09.10.2017 he took up investigation from P.W.16 and perused the C.D file and found in correct lines; that on 15.10.2017 he visited Pedatummidi village of
Bantumilli Mandal, there he secured the witnesses P.W.11, P.W.7 and
P.W.8 and examined them and recorded their statements. He further deposed that P.Ws.7, 8 and 11 stated before him as in Ex.P.7, Ex.P.8 and Ex.P.10; that on 15.12.2017 he received RFSL report under
Ex.P.15 and sent the same to the Medical Officer for final opinion and that on 19.06.2017 memo filed to add Section 306 IPC and U/s.3 and 4 of Dowry Prohibition Act against A.1 to A.3; that after completion of investigation he filed charge sheet under Section 304 (B), 306 r/w 34 of IPC and under Section 3 and 4 of Dowry Prohibition Act; that
Ex.P.28 is section adding memo under Section 306 of IPC and under
Section 3 and 4 of Dowry Prohibition Act.
56. The necessary ingredients to prove the offence punishable under section 306 of IPC is there was suicide of a person and it was committed in consequence of abetment by the accused.
Page No.39 of 61 40
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020.
57. It is the evidence of P.W.13/Dr.N.Leela Priyadarshini, Civil
Assistant Surgeon in her chief-examination that she has been working as Civil Assistant Surgeon, District Hospital, Machilipatnam from 2013 to till date and she received summon from the court to give evidence; that on 14.09.2017 at about 11.00 a.m., she conducted autopsy on the cadaver of deceased Talarai Seetha, which was sent by Tahsildar and found the following external injuries: (i) ligature marks on the neck extending on both sides measuring about 13 x 2 cms., more extending on the left side; (ii) odematous on the neck tissues; that the
RFSL report is pending and she issued preliminary postmortem examination report, vide Ex.P.14 and that, she sent pieces of stomach, intestine, kidney, liver to RFSL analysis; that the RFSL, Vijayawada conducted analysis and reported that there was no poisonous substance found in the items sent by her; that basing on the RFSL report she issued final opinion stating that cause of death might be due to hanging and Ex.P.16 is her final opinion; that she cause sent hyoid bone to L.W.19/Dr.B.Srinu Naik, Asst. Professor for expert opinion; that the expert opined that the hyoid bone is remained intact; that Ex.P.17 is opinion of L.W.19.
58. During the cross-examination P.W.13 elicited that she did not examine the intestines of the stomach of deceased to observe the deceased was suffering from acute stomach ache and she denied the suggestion that she intentional omitted to conduct examination about the stomach pain of deceased.
59. Thus, from the above evidence of Medical Officer, it is clear that the cause of death is hanging, there are ligature marks on the neck extending on both sides measuring about 13 x 2 cms., more extending on the left side; (ii) odematous on the neck tissues.
Page No.40 of 61 41
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020.
60. All the material witnesses examined in this case in one voice stated that the deceased committed suicide. P.W.2, P.W.5, P.W.6 and P.W.9 deposed in their evidence that all the accused harassed and subjected the deceased to cruelty demanding dowry and caused her death. P.W.2 deposed in her evidence that A.1 to A.3 subjected the deceased to cruelty and harassment which provoked the deceased to commit suicide. P.W.5 deposed in her evidence that they suspected that the deceased was killed by the accused.
61. As per Section 60 of Indian Evidence Act, 1872, if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner. As per the decision in KARALI
PROSAD DUTTA V/S EIRYCO, AIR 1928 Cal. 498, Section 60 of
Indian Evidence Act, 1872 does not exclude circumstantial evidence of a thing which could be seen, heard and felt.
62. In view of the above, though this case based on circumstantial evidence, the evidence of P.W.2 can be taken into consideration to base conviction against A.1 for the offence of abetment of suicide under Section 306 of I.P.C.
63. Though, it is the version of defense counsel that the deceased used to complain that she was suffering from severe stomach ache and that she used to express before her relatives that she was unable to bear the stomach ache and she want to die. But as rightly argued by the learned Public Prosecutor why the accused did not get any medical treatment to her stomach ache, or they did not file any medical report or medical prescription to prove that the deceased had suffered from severe stomach ache.
Page No.41 of 61 42
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020. ‘Last seen’ theory:
64. With regard to this circumstance, the prosecution examined P.W.4, who is cousin of deceased and who received phone call from somebody informing that the deceased/Seetha was not feeling well and requested to come and in turn he informed the same to P.W.1 and others. It is the evidence of P.W.6 immediately after receipt of information through P.W.4 they rushed to the house of deceased and noticed the dead body of the deceased lying in the house of A.1. Since the deceased died at the house of A.1, A.1 has to answer how the deceased died. Admittedly, A.1 and deceased are living in a separate hut from A.2 and A.3, who are living in another tin sheet shed. In the charge sheet also it is mentioned that A.1 erected a new hut and shifted his family to that house. A perusal of Ex.P.25 rough sketch of scene of offence shows that A.2 and A.3 are residing in a tin sheet shed and A.1 and the deceased are residing in a separate hut locating side by side. Therefore, A.1 has to explain how the deceased died.
65. As seen from Ex.P.13 mediators report drafted at the time of arrest of A.1, it is the version of A.1 that as the deceased moving closely with one Gudavalli Vishnu, he put up a separate family by the side of his parents house along with his children. He found a new phone with the deceased and when question the deceased did not give proper reply, for which he beat his wife and from that day onwards he used to quarrel with his wife to go away from the house. On 12.09.2017 when the owner of the car, under whom he was working as driver questioned for his disturbance mood and he requested to come to home in the evening along with the deceased, with a view to settle the dispute, for which the deceased did not agree to come. Then he stated her to go away from the house or die and on that night he
Page No.42 of 61 43
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020. went to Bantumilli centre, purchased Brandi consumed the same and he did not come back to the house on that night and he slept in the
Z.P. High School, which is situated by the side of his house. Thus, there is no possibility to prove the last seen theory.
66. It is the contention of the learned Public Prosecutor that
A.1 was present in the house on the night of 12.09.2017, therefore,
A.1 is duty bound to explain as to how the death of his wife was caused. Being inmate of the house, A.1 cannot get away by simply keeping quiet and offering no explanation. The accused has not offered any explanation for the death of his wife. Therefore, an adverse inference can be drawn against the accused and in support of his contention the learned Public Prosecutor relied on the following decisions:
(1) In Gajanan Dashrath Kharate v. State of Maharashtra
AIR 2016 SUPREME COURT 1255 wherein the Apex Court held at para No.12 that:
“Prosecution has proved presence of the appellant at his home on the night of 07.04.2002. Therefore, the appellant is duty bound to explain as to how the death of his father was caused. When an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution. In view of Section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on the accused to offer. On the date of occurrence, when accused and his father Dashrath were in the house and when the father of the accused was found dead, it was for the accused to offer an explanation as to how his father sustained injuries. When the accused could not offer any explanation as to the homicidal death of his father, it is a strong circumstance against the accused that he is responsible for the commission of the crime.” (2) In Bathula Ademma v. State of Andhra Pradesh 2018 (2) ALD (Crl.) 777 wherein their lordships held at para No.17 that: Page No.43 of 61 44
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020. “The undeniable presence of the accused at the time of the occurrence squarely attracts Section 106 of the Indian Evidence Act, 1872, which throws burden on the person to explain the fact which is especially within his/her knowledge. While taking the incredible stand that due to the hard/blunt object coming into contact with the neck, the deceased sustained those injuries, the accused failed to discharge the burden cast on her under Section 106 of Indian Evidence Act, 1872.” (3) In Murugan v. State of Tamil Nadu 2018 (1) ALD (Crl.) 744 (SC) wherein the Hon’ble Apex Court held at para No.32 that:
“A theory of “accused last seen in the company of the deceased” is a strong circumstance against the accused while appreciating the circumstantial evidence. In such cases, unless the accused is able to explain properly the material circumstances appearing against him, he can be held guilty for commission of offence, for which he is charged.” (4) In Prashanth Bhala Chandru Mangrule v. State of A.P.,
rep., by its Public Prosecutor, High Court of A.P., at Hyderabad
2017 (2) ALT (Crl.) 91 (DB) (A.P.) wherein their lordships held that:
“In a criminal trial, the accused need not take up a specific defence and if he takes any defence and it is proved to be false or incorrect, an adverse inference can be drawn.”
67. Learned Public Prosecutor further argued that the defence of accused is that due to severe stomach ache the deceased committed suicide, but being husband and in-laws of deceased A.1 to
A.3 failed to produce any evidence showing that the deceased suffered severe stomach ache as such she committed suicide and in support of his contention he relied on the decision in Bandala Saya Goud v.
State of Andhra Pradesh, 2019 (1) ALD (Crl.) 70, where in it is held at para Nos. 18 to 20 as follows:
“18. The defence of appellant before trial Court was twofold – (i) the alibi and (ii) the deceased has committed suicide. The appellant has failed to prove the defence of alibi by not producing any defence to this effect. The second defence is that he has not killed the deceased but she herself hanged and committed suicide. Page No.44 of 61 45
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020.
19. Now, question is, why the deceased has committed suicide? The deposition of PW2 has proved that the appellant used to beat and harass the deceased. On the date of incident also, he beat the deceased. Accordingly, the deceased was fed up with the harassment caused by the appellant and finished her life. We have no hesitation to say that the appellant was fully aware, while taking second defence, that he may be convicted for the offence under Section 306 of IPC, if not under Section 302 of IPC. Therefore, even if the trial Court has not framed charge under Section 306 of IPC, still, the appellant can be convicted for the aforementioned offence keeping in view the dictum of
Hon’ble Supreme Court in the case of Dalbir Singh’s
case.
20. In view of the above discussion and the legal position, we hereby set aside the conviction of appellant/accused for the offence under Section 302 of IPC. However, we convict the appellant for the offence under Section 306 of IPC.
68. In the above cited decision, the defence of appellant before trial Court was twofold i.e., (i) alibi and (ii) the deceased has committed suicide. The appellant has failed to prove the defence of alibi by not producing any defence to this effect. The second defence is that he has not killed the deceased but she herself hanged and committed suicide. The Hon’ble High Court of Judicature set aside the conviction of appellant/accused for the offence under Section 302 of
IPC. However, they convicted the appellant of the offence under
Section 306 of IPC.
69. Here in this case also the defence of A.1 is that the deceased committed suicide due to severe stomach ache. The second defence is that he has not killed the deceased but herself hanged and committed suicide. Therefore, the decision relied on by the learned
Public Prosecutor is applicable to the case on hand.
70. The learned Public Prosecutor further argued that the accused maintained complete silence except denial while examining them under Section 313 Cr.P.C. and they did not take any defence to furnish any explanation in such an event, the Court is entitled to draw Page No.45 of 61 46
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020. an adverse inference against the accused. Tthe learned Public
Prosecutor also argued that when the case is based on circumstantial evidence and when there is no eye-witnesses to the incident, once the prosecution established a prima facie case, when there was neither any defence evidence nor any explanation given by the accused during
Section 313 Cr.P.C., examination, court can draw adverse inference and the accused has a duty to furnish explanation in their statement under Section 313 Cr.P.C and in support of his contention he relied on the following decisions:
1) In Shaik Ibraheem. v. State of Andhra Pradesh, 2018 (2) ALD (Crl.) 119, wherein it is held at para No.27 as follows:
“27. Significantly, in Section 313 Cr.P.C. examination except denying all the questions either as wrong (Galat) or no, accused No.1 has not come up with any explanation whatsoever. His deafening silence in the facts and circumstances of the case can only be understood as he has no explanation whatsoever to offer regarding the incriminating material pointing his involvement in the gruesome murder and hence adverse inference requires to be drawn against him.
2) In Rajkumar v. State of M.P. 2014 (2) ALD (Crl.) 312 (SC) wherein their lordships held at para No.12 that:
“The accused has a duty to furnish an explanation in his statement under Section 313 Cr.P.C., regarding any incriminating material that has been produced against him. If the accused has been given the freedom to remain silent during the investigation as well as before the Court, then the accused may choose to maintain silence or even remain in complete denial when his statement under Section 313 of Cr.P.C., is being recorded. However, in such an event, the Court would be entitled to draw an inference, including such adverse inference against the accused as may be permissible in accordance with law.”
3) In Phula Singh v. State of Himachal Pradesh, AIR 2014 Supreme Court, 1256, where in it is held at para No.8 as follows:
“6. The accused has a duty to furnish an explanation in his statement under Section 313 Cr.P.C., regarding any incriminating material that has been produced against him. If the accused has been given the freedom to
Page No.46 of 61 47
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020. remain silent during the investigation a well as before the court, then the accused may choose to maintain silence or even remain in complete denial when his statement under Section 313 Cr.P.C., is being recorded. However, in such an event the court would be entitled to draw an inference, including such adverse inference against the accused as may be permissible in accordance with law. (Vide: Ramnaresh & Ors. v. State of Chhattisgarh, AIR 2012 SC 1357; Munish Mubar. v. State of Haryana, AIR 2013 SC 912; and Raj Kumar Singh alias Raju alias Batya. v. State of Rajasthan, AIR 2013 SC 3150).”
4) In Kalu Alias Laxminarayan. v. State of Madhya
Pradesh, 2019 (3) ALT (Crl.) 458 (SC), wherein it is held at para
No.15 as follows:
“15. In view of our conclusion that the prosecution has clearly established a prima facie case, the precedents cited on behalf of the appellant are not considered relevant in the facts of the present case. Once the prosecution established a prima facie case, the appellant was obliged to furnish some explanation under Section 313 Cr.P.C., with regard to the circumstances under which the deceased met an unnatural death inside the house. His failure to offer any explanation whatsoever therefore leaves no doubt for the conclusion of his being the assailant of the deceased.
5) In Munish Mubar v. State of Haryana (2012) 10 SCC 464 wherein the Hon’ble Apex Court held that:
“It is obligatory on the part of the accused, while being examined under Section 313 Cr.P.C., to furnish some explanation with respect to the incriminating circumstances associated with him and the Court must take note of such explanation even in case of circumstantial evidence, so as to decide whether chain of circumstances is complete.”
71. It is also the argument of learned Public Prosecutor that there is no plausible, reasonable and trustworthy explanation from A.1 to rebut the presumption under Section 113-A of the Evidence Act, thus the prosecution has sufficiently proved that the A.1 abetted the deceased to commit suicide by his cruel treatment and driven the lady to commit suicide and in support of his contention the learned Public
Prosecutor relied on the decision in Sahebrao and another Vs. State of Maharashtra 2006 (3) Alt (Crl.) 10 (SC), whereinthe Hon’ble
Apex Court held at para No.14 as follows:
Page No.47 of 61 48
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020. “16. Neither any evidence was led by the defence nor from the evidence placed on record by the prosecution, we can draw a plausible, reasonable and trustworthy explanation to rebut the presumption under Section 113-A of the Evidence Act. The prosecution has sufficiently proved by cogent evidence that the accused- appellants by series of acts and conduct created such a difficult and hostile environment for the deceased that she was compelled to commit suicide. In the light of the discussion in regard to the cruelty committed by the accused persons to the deceased under Section 498-A IPC, there is a direct and reasonable nexus with the commission of suicide by the deceased with the act of cruelty to which the deceased was subjected to by the accused-appellants.”
72. Therefore, the prosecution has established the continuity in the links of the chain of circumstances that A.1 only abetted the deceased to commit suicide and except to A.1 there is no possibility to anyone to abet the deceased to commit suicide, as A.2 and A.3 are residing in a separate tin sheet shed. The prosecution also proved the last scene theory and other all required limbs to connect the A.1 with the above commission of offence. The prosecution also prima facie established its case against A.1 through the prosecution witnesses for the charge under Section 306 of IPC.
73 Section 306 IPC when read with section 113-A of the
Evidence Act has only enable the Court to punish a husband or his relative who subjected a woman to cruelty (as envisaged in Section 498-A IPC), if such woman committed suicide within 7 years of her marriage. It is immaterial for section 306 IPC whether the cruelty or harassment was caused ‘soon before her death,’ or earlier. If it was caused ‘soon before her death,’ the special provision under Section 304-B PC would apply otherwise resort can be had to Section 306 IPC [Satvir. v. State (2001) 8 SCC 633] Sections 498-A and 306 IPC are independent and constitute different offences.
Page No.48 of 61 49
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020.
THERE IS SUFFICIENT ‘MOTIVE’ FOR THE ACCUSED TO CAUSE
HARM TO THE DECEASED:
74. With regard to this circumstance, it is the specific case of prosecution that the deceased/Seetha is the wife of A.1. P.W.2, P.W.5,
P.W.6 and P.W.9 categorically deposed that A.1 to A.3 harassed the deceased and subjected her to cruelty demanding dowry and it is also the evidence of P.W.2 that A.1 used to beat the deceased on the instigation of A.2 on the ground of bringing additional dowry as the deceased belonging to another community and because of love marriage A.1 could not get any dowry from the deceased; that A.1 and
A.2 used to harass the deceased saying that the deceased has become a problem for them and had A.1 got married any other girl belonging to their community i.e., ‘Yadava,’ A.1 would have got dowry and he married only a ‘Gowda’ community girl; that A.1 drove the deceased to the house of P.W.1 and P.W.3 for bringing Rs.25,000/- for getting driving license and Rs.15,000/- for construction of house and for gold ear studs. It is also the evidence of P.W.9 that the deceased now and then informed her over phone that she was subjected to cruelty and harassment by all the accused saying that she belonged to different community to that of them, and if A.1 married another girl of their community, A.1 would have got dowry and other valuable articles; that the deceased also came to their house and informed about the said fact to her directly; that she came to know that the deceased was beaten, abused and necked out for bringing dowry and valuable articles and drove her to the house of P.W.1.
75. It is the contention of learned counsel for the defence that in the absence of any evidence with regard to dowry or related harassment nullifies the element of presence of any motive and in support of his contention he relied on the decision in State of
Page No.49 of 61 50
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020. Rajasthan Vs. Ramanand, 2018 (1) ALT (Crl.) 155 (SC) the
Hon’ble Supreme Court, wherein it is held at para No.10 that:
“The absence of any evidence as regard dowry or related harassment also nullifies the element of presence of any motive on part of the respondent.”
76. In the above case, the marriage was more than 10 years old and as such no statutory presumption on any count could be drawn and none of the prosecution witnesses had supported the case of prosecution as regards demand of dowry and harassment. Apart from strangulation marks nothing was found in the Post Mortem report regarding any other bodily injury. Therefore the facts of the above case are not applicable to the facts of the case on hand.
77. Thus, it is crystal clear that the motive for committing the offence by A.1 is that he could not get much amount towards dowry due to the deceased and he intend to get another marriage with a view to get much amount towards dowry, after eliminating the deceased and the same can be said to be the sufficient motive for A.1 to cause harm to the deceased.
78. In this connection the learned Public Prosecutor argued that in the absence of any explanation with regard to motive and evidence, it can be said that prosecution proved all circumstances, connecting the accused with crime and in support of his contention he relied on a decision in Hazara Begum. v. State of Andhra Pradesh, 2019 (1) ALD (Crl.) 426, wherein it is held at para No.23, 27 & 28 as follows:
“23. It is well settled that the burden of proving the guilt of an accused is on the prosecution, but there may be certain facts pertaining to a crime that can be known only to the accused, or are virtually impossible for the prosecution to prove. These facts need to be explained by the accused and if he does not do so, then as held by the Apex Court it is a strong circumstance pointing out the guilt towards the accused.
Page No.50 of 61 51
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020.
“27. The above cases mainly lay down the guidelines as to manner in which the court has to be dealt with cases arising out of circumstantial evidence. Since the circumstances involved, namely last seen, motive, the recovery of the dead body from the house of the appellant stands proved and in the absence of any explanation by the accused as to how the dead body was present in her house, which is locked from inside, the judgments relied upon by the learned Counsel for the appellant may not be of any help to the accused.
28. For the aforesaid reasons, we feel that the circumstances which are relied upon by the prosecution form a chain of events and un-erringly point out towards the guilt of the accused.”
79. In the above cited decision, A.1 failed to prove as to how the dead body was inside the house. It is not her case that the house was locked from outside and that she was sleeping inside the house. It is also not her case that P.W.4 was responsible for the incident; that he killed the deceased and then went back to his office. It was not even suggested to any of the witness that A.2 and A.3, who according to the prosecution are alleged to have gone to third floor are responsible for the incident. In the absence of any explanation and in view of the judgment of the Apex Court coupled with the motive and the evidence of P.Ws.1 to 4, it can be said that the prosecution proved all the circumstances connecting the accused with the crime.
80. Here in this case also A.1 failed to prove as to how the deceased died by committing suicide during night time in her hut. It is the evidence of P.W.2 that at about 1 year 3 months ago, at about 4.00 or 4.30 a.m., A.1 informed to P.W.1 over phone that deceased committed suicide by hanging herself to the ceiling of the house. It is the evidence of P.W.9 that she came to know through P.W.4 that ‘Seetha’ died by hanging herself. She went to the house of deceased and saw the body of Seetha was laid down on a cot in her house. The explanation offered by A.1 that the deceased committed suicide by
Page No.51 of 61 52
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020. hanging due to severe stomach ache cannot be believable. Therefore, adverse inference can be drawn against A.1.
81. In respect of Section 3 and 4 of Dowry Prohibition Act, it is the contention of P.W.2, P.W.5, P.W.6 and P.W.9, that A.1 to A.3 demanded the deceased to bring dowry from her parental home and drove away her to the house of P.Ws.1 and 3. Accordingly, P.W.1 and
P.W.3 gave Rs.25,000/- for obtaining driving license and Rs.15,000/- and also gave gold ear studs weighing one sovereign and sent the deceased to her in-laws house.
82. It is the contention of the learned Public Prosecutor that when the accused is charged with offences under Section 3 or Section 4 of Dowry Prohibition Act, 1961 the initial burden lies on the prosecution to prove the basic ingredients of the sections for bringing home the guilt of the accused, once that happens, then the burden will shifts on to the accused under Section 8-A of the Dowry Prohibition
Act, 1961 to show that the accused have not given or taken or abetted any giving or taking of any property or valuable security in connection with the marriage of parties or that they have not demanded directly or indirectly from the parents or the relatives of the bride or bridegroom as the case may be, any dowry.
83. For better appreciation Section 8-A of Dowry Prohibition Act reads as follows:
“8A. Burden of proof in certain cases.—Where any person is prosecuted for taking or abetting the taking of any dowry under section 3, or the demanding of dowry under section 4, the burden of proving that he had not committed an offence under those sections shall be on him.”
84. In support of his contention the learned Public Prosecutor relied on a decision in Harikumar Vs. State of Karnataka 1995 (1)
ALT (Crl.) 26 (Karn.) (F.B.) the Hon’ble High Court of Karnataka at
Bangalore held at para Nos.5 and 22 that: Page No.52 of 61 53
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020. “5. Section 8-A deals with burden of proving innocence in given cases. Therefore, the section, in substance, creates a Rule of Evidence and deals with casting of burden of proof in certain cases on the accused. A close reading of the section shows that merely because the accused is charged with offences under Section 3 or Section 4 of the Act, the initial burden which is always on the prosecution to prove basic ingredients of the sections for bringing home the charges to the accused will not get displaced or dispensed with.” “22. The prime burden of proof rests on the prosecution to establish the basic facts and ingredients for bringing home to the accused the offence, under Section 3 or Section 4 of the Act and the prosecution will have to establish its case in this connection beyond reasonable doubt. Once that happens, then only the burden will shift on the accused under Section 8-A of the Act, to show that he has not given or taken or abetted any giving or taking of any property or valuable security in connection with the marriage of parties or that he has not demanded directly or indirectly from the parents or the relatives of the bride or bridegroom as the case may be, any dowry, meaning thereby such demand if any is not in connection with the marriage of the said parties. The said burden of proof on the accused as contemplated in Section 8-A of the Act can be discharged on preponderance of probabilities.”
Further in para No.19 their lordships held that:
“If in prosecution for offence of dowry death, such presumption under Section 113-A of the Evidence Act, can be validly raised and the burden can be shifted on the accused, then in prosecutions for demanding dowry or for taking or giving dowry or for its abetment the shifting of burden of proof on the accused under Section 8-A can equally validly be countenanced. Such rules of evidence dealing with matrimonial offences having grave consequences on social order cannot be faulted on the touchstone of Articles 14, 20 (3) or 21 of the Constitution of India.”
85. In view of the above decision, when once the prosecution establishes the basic facts and ingredients that the accused demanded and taken dowry, then only the burden shifts on to the accused that they have not given or taken or abetted any giving or taking of any property or valuable security in connection with the marriage of parties.
86. But herein in this case P.W.1 and P.W.3, who alleged to have arranged the said amount did not support the case of prosecution
Page No.53 of 61 54
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020. and they turned hostile and in the absence of evidence of P.W.1 and
P.W.3, who alleged to have arranged amounts to the accused. Thus it is deemed that the prosecution failed to establish the basic ingredients that the accused demanded and taken dowry. Therefore, the evidence of P.W.2, P.W.5, P.W.6 and P.W.9 is not helpful to the case of the prosecution. Thus, A.1 to A.3 are entitled for benefit of doubt for the charges under Sections 3 and 4 of Dowry Prohibition Act, 1961 and the decision relied on by the learned Public Prosecutor in Harikumar case (supra), is not applicable to the present case on hand.
87. However, the prosecution has successfully proved the guilt of A.1 for the charge punishable under Sections 306 of IPC. Therefore,
A.2 and A.3 are entitled for benefit of doubt for the charge under
Section 306 of IPC. A.1 to A.3 also entitled for benefit of doubt for the charges under Sections 304-B of IPC and under Sections 3 and 4 of
Dowry Prohibition Act, 1961.
88. Since A.1 found guilty for the charge under Section 306 of
IPC, A.1 to A.3 are exonerated from the charge under Section 302 of
IPC as laid down in Sidram v. State (1993) 1 DMC 204 (Bom.)
D.B.
89. IN THE RESULT, A.1 is found guilty for the charge under
Section 306 of IPC and he is convicted under Section 235 (2) of
Cr.P.C. A.1 to A.3 are found not guilty for the charges under
Sections 304-B, 302 of IPC and under Sections 3 and 4 of Dowry
Prohibition Act, 1961 and they are acquitted under Section 235 (1) of
Cr.P.C. A.2 and A.3 are also found not guilty for the charge under section 306 of I.P.C., and they are acquitted under Section 235 (1) of
Cr.P.C.
Dictated to the Stenographer directly on desktop, corrected by
me on desktop and pronounced by me in open Court on this the 17 th day of February, 2020.
I-ADDL. SESSIONS JUDGE
FAC: SESSIONS JUDGE,
KRISHNA, MACHILIPATNAM.
Page No.54 of 61 55
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020.
90. Section 306 of IPC enjoins me to impose Imprisonment for ten years, and shall also impose fine’.
91. In Ram Deo Chauhan v. State of Assam AIR 2001 SC 2231 it was held that the legal position regarding necessity to afford opportunity for hearing the accused on the question of sentence u/s 235 (2) of Cr.P.C., is as follows:
(1) If the Session Judge does not propose to impose death penalty, there is no necessity to hear the accused for awarding minimum sentence i.e., life imprisonment; (2) In all other cases, the accused must be given sufficient opportunity of hearing on the question of sentence; (3) The normal rule is that after pronouncing the verdict of guilty, the hearing should be made on the same day and sentence shall also be pronounced on the same day; (4) In cases where the Judge feels or if the accused demands more time for hearing on the question of sentence, the provision of Sec. 309(2) is not a bar for affording such time; (5) In such a situation, the person convicted is required to be sent to jail till final decision.
92. In State of U.P. v. Virendra Prasad AIR 2004 SC 1517, it was held that Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is now unknown in civilized societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times on account of misplaced sympathies to the perpetrator of crime leaving the victim or his family into oblivion. Even now for a single grave infraction, drastic sentences are imposed. Anything less than a penalty of greatest severity for any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But in fact quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the gravity of the crime uniformly disproportionate punishment has some very undesirable practical consequences. Page No.55 of 61 56
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020.
93. In Swamy Shaddananda @ Murali Manohar Mishra v.
State of Karnataka, AIR 2007 SC 2531 it was held that there is a clear and discernible necessity of caution to set the maximum punishment in an offence. And also by implication there must be intensive and exhaustive inquiry into accused related parameters
before employing the maximum sentence by a Court of Law.
Therefore, discretion to the judiciary in this respect (to declare the maximum punishment) is of utmost critical and seminal value.
Reasons must be detailed setting clearly why any punishment other than the maximum punishment will not suffice. This is a general and age old rule of sentencing which has been statutorily recognized under
Section-354 (3) Cr.P.C. Also it is to be realized that in criminal cases character of accused is immaterial by the mandate of sections-53 and 54 of Indian Evidence Act. The same should not factor in the discussions at the sentencing stage. If that be so, bad character of the accused by itself should not be a determinative factor.
94. The provisions under Section 360 of Cr.P.C., or Section 3 and 4 of Probation of Offenders Act cannot be applied in this case as the offence with which the A.1 was charged and proved is relating to abetment of suicide, which is grave in nature.
95.The Hon’ble Supreme Court of India in Ankush Shivaji
Gaikwad Vs. State of Maharashtra 7 observed that the “the Victim should not be forgotten in the Criminal Justice System” and further observed that “the Criminal Courts must invoke Section 357 of Cr.P.C., to award compensation subject to exceptions” and the Hon’ble Court ordered to circulate the Judgment to all the Criminal Courts in the
Country.
7(2013) 6 SCC 770 Page No.56 of 61 57
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020.
96. Section 357 of Cr.P.C., provides that while passing the
Judgment, the Court may order whole or part of fine recovered to be applied in defraying the expenses properly incurred in prosecution and in the payment of compensation to any person for any loss or injury caused by the offence. Section 357-A of Cr.P.C., provides victim compensation under the scheme.
97. The above Judgment and Section 357 of Cr.P.C, drive that the Court shall award fine to meet the compensation and to defray the expenses of the prosecution. However, the fine should not be excessive and equally it should not be throw away amount, the fine amount must be depending on the background of the Accused. If the awarded fine is not sufficient to compensate the victim, the Court may recommend the case for victim compensation U/s.357-A of Cr.P.C.
98. A.1 present, when questioned about the quantum of sentence, A.1 stated that he is working as van driver and he got two male children, studying I Class and Nursery in Anganvadi. Besides that he has old aged parents, who are A.2, mother, suffering from old-age ailments and A.3, father who lost his vision and they are depending on the earning of A.1. A.1 further submitted that a sum of Rs.50,000/- each was deposited in the name of two minor children of the deceased and A.1. Furthermore, the learned counsel for accused filed the copy of Registered Gift Deed executed by Thalari Veera Venkateswara
Rao/A.3 bequeathing Ac.0.02 cents of site each in favour of two sons of A.1 and submitting the above, the learned counsel for accused prayed to take lenient view and permit A.1 to live with them. He further submitted that he has not committed any offence much less similar offence and pleaded mercy of the court.
99. The learned Public Prosecutor submitted that A.1 subjected the deceased to cruelty and harassed her by demanding to bring
Page No.57 of 61 58
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020. money from her parental house towards dowry, which provoked the deceased to commit suicide on the night of 12.09.2017 and prayed to award imprisonment for ten years against A.1.
100. The Court, considering the nature of evidence against A.1, plea of the learned Public Prosecutor, inclined to award following sentence and fine amount to compensate the children of deceased to meet the ends of justice.
101. Considering the submissions of A.1, A.1 is sentenced to undergo ‘RIGOROUS IMPRISONMENT FOR SEVEN YEARS’ and also to paya fine of Rs.10,000/- (Rupees ten thousand only),in default of payment of fineA.1 shall undergo Rigorous Imprisonment under Section 66 of I.P.C.,for a periodof One (1) year for the charge under Section 306 of I.P.C.
102. The victims, who are two male children of deceased and
A.1 are awarded total compensation of Rs.10,000/- (Rupees ten thousand only) i.e., Rs.5,000/- each. The District Legal Services
Authority, Machilipatnam is recommended to consider the case for compensation U/s.357-A of Cr.P.C., under victim compensation scheme.
103. If A.1 did not pay the fine amount as ordered by this
Court, the State Government shall proceed against the properties of
A.1 if any to recover the compensation amount in terms of this
Judgment on or before 17.05.2020, failing which the State shall examine to pay the compensation amount of Rs.10,000/- to the two children of the deceased and A.1 from victim compensation scheme and can recover the same from A.1 as per Law.
104. The remand period of A.1 from 16.09.2017 to 17.11.2017 shall be given set-off under Section 428 of Cr.P.C. A.1 is appraised of his right of appeal under Section 382 of Cr.P.C., within 30
Page No.58 of 61 59
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020. days from the date of this Judgment. Copy of this Judgment shall be given to A.1 at free of cost on this day itself. A.1 is informed that he has got right to prefer appeal against the judgment of conviction to the Hon’ble High Court of Andhra Pradesh and also informed to take legal aid from the State Legal Services Authority, if he has no means to engage a counsel. A.1 also informed that he can prefer an appeal to the Hon’ble High Court through jail authorities alleging that he has no means to engage an advocate to provide legal aid to him.
105. M.O.1/Orange colour with violet colour flowers silk saree is ordered to be destroyed after the appeal time is over. M.O.2/black and red colour Celkon Company C345 Mobile of A.1 is ordered to be confiscated to the State after the appeal time is over. The unmarked case property if any shall be destroyed after the appeal time is over.
Dictated to the Stenographer, transcribed by him, corrected by
me and pronounced by me in open Court on this the 17 th day of February, 2020.
I-ADDL. SESSIONS JUDGE
FAC: SESSIONS JUDGE,
KRISHNA, MACHILIPATNAM.
APPENDIX OF EVIDENCE
(WITNESSES EXAMINED ON BEHALF OF THE PROSECUTION)
Defacto- P.W.1 08.01.2019 Parasa Nageswara Rao complainant. P.W.2 08.01.2019 Borra Naga Malleswari
P.W.3 09.01.2019 Parasa Alivelu Mangamma
P.W.4 10.01.2019 Parasa Rambabu
P.W.5 17.01.2019 Kagitha Kalyani
P.W.6 24.01.2019 Parasa Bagya Lakshmi 28.01.2019 Madem Nancharaiah @ P.W.7 Buddaiah P.W.8 28.01.2019 Gongalla Prasad
P.W.9 29.01.2019 Pilli Ganga
P.W.10 29.01.2019 Boyina Venkateswara Rao
P.W.11 29.01.2019 Borra Suryanarayana
P.W.12 31.01.2019 Naragani Amala Rama Krishna V.R.O.
Page No.59 of 61 60
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020.
P.W.13 04.02.2019 Dr. N.Leela Priyadarshini C.A.S.
P.W.14 11.02.2019 T.Srinivasa Rao Head Constable
P.W.15 18.02.2019 D.Vijaya Sekhara Rao Tahsildar
DSP, Traffic, P.W.16 06.11.2019 Sk.Hussain Machilipatnam. P.W.17 15.11.2019 Md. Mehaboob Basha DSP
(WITNESSES EXAMINED ON BEHALF OF THE DEFENCE SIDE)
. . . N O N E . . .
(DOCUMENTS MARKED ON BEHALF OF PROSECUTION SIDE)
Sl. Exhibit Description of Document No. No.
1. Ex.P.1: Thumb impression of P.W.1 on Ex.P.18. Section 161 Cr.P.C. Statement of P.W.1 recorded by
2. Ex.P.2: L.W.22, S.D.O.P., Bandar. Section 161 Cr.P.C. Statement of P.W.3 recorded by
3. Ex.P.3: L.W.22, S.D.O.P., Bandar. Section 161 Cr.P.C. Statement of P.W.4 recorded by
4. Ex.P.4: L.W.22, S.D.O.P., Bandar. Statement of P.W.2 recorded by P.W.15 during
5. Ex.P.5: inquest. Statement of P.W.5 recorded by P.W.15 during
6. Ex.P.6: inquest. Section 161 Cr.P.C. Statement of P.W.7 recorded by
7. Ex.P.7: L.W.23. Section 161 Cr.P.C. Statement of P.W.8 recorded by
8. Ex.P.8: L.W.23. Section 161 Cr.P.C. Statement of P.W.10 recorded by
9. Ex.P.9: L.W.22. Ex.P.10: Section 161 Cr.P.C. Statement of P.W.11 recorded by 10. L.W.23.
11. Ex.P.11: Observation Report of Scene of Offence.
12. Ex.P.12: Inquest Report. Ex.P.13: Mediators Report for the recovery of M.O.2 13. (Admissible Portions only)
14. Ex.P.14: Post-Mortem Report.
15. Ex.P.15: R.F.S.L., Report.
16. Ex.P.16: Final Opinion given by P.W.13 on the basis of Ex.P.15. Expert opinion given by the Assistant Professor,
17. Ex.P.17: Siddartha Medical College / Government Hospital, Vijayawada.
18. Ex.P.18: Report of P.W.1 received by P.W.14. Ex.P.19: FIR in Crime No.96 of 2017 of Bantumilli PS under 19. Section 304 (b) r/w 34 of IPC. Ex.P.20: Statement of P.W.4 recorded by P.W.15 during 20. inquest.
Page No.60 of 61 61
Sessions Judge,
Sessions Case No.135/2018
Krishna, Machilipatnam. Dt.17.02.2020. Ex.P.21: Statement of P.W.3 recorded by P.W.15 during 21. inquest. Ex.P.22: Statement of P.W.1 recorded by P.w.15 during 22. inquest. Ex.P.23: Statement of L.W.5/D.Sriramulu recorded by P.W.15 23. during inquest.
24. Ex.P.24: Six (6) photographs with CD.
25. Ex.P.25: Rough Sketch of scene of offence. Letter of Advice along with covering letter for
26. Ex.P.26: forwarding Hyoid Bone to Professor, Forensic Science, Siddardha Medical College, Vijayawada. Letter of Advice along with covering letter for
27. Ex.P.27: forwarding stomach contents of the deceased to the RFSL, Vijayawada. Ex.P.28: Section adding memo U/s. 306 of IPC and Section 3 28. and 4 of Dowry Prohibition Act.
(DOCUMENTS MARKED ON BEHALF OF DEFENCE SIDE)
. . . N I L . . .
LIST OF MATERIAL OBJECTS
M.O.1: Orange Colour with Violet colour flowers silk saree.
M.O.2: Black and red colour Celkon Company C345 Mobile of A.1.
I-ADDL. SESSIONS JUDGE,
FAC: SESSIONS JUDGE,
KRISHNA, MACHILIPATNAM.
Page No.61 of 61