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The Indian Penal Code, 1860
The Indian Evidence Act, 1872
Section 32 in The Indian Penal Code, 1860
Section 4 in The Indian Penal Code, 1860
The Dowry Prohibition Act 1961

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Andhra High Court
Dheshetti Rajesham And Another vs State Of A.P., Rep.By on 13 November, 2007

THE HON'BLE Dr. JUSTICE G. YETHIRAJULU

Criminal Appeal No.1243 of 2003

13-11-2007

Dheshetti Rajesham and another

State of A.P., rep.by

Public Prosecutor,

High Court of A.P., Hyderabad.

Counsel for Petitioners: D. Bhaskar Reddy

Counsel for respondent: Pubic Prosecutor

:JUDGMENT:

This Criminal Appeal has been preferred by A.1 and A.2 in Sessions Case No.851 of 2002 on the file of IV Additional and District Sessions Judge, Karimnagar.

2) Both the accused were charged for the offences under Sections 498-A and 304-B of the Indian Penal Code

(for short 'IPC') and Section 4 of the Dowry Prohibition Act (for short 'D.P. Act') for allegedly subjecting the deceased to cruelty and harassment by demanding to bring the balance dowry amount of Rs.40,000/- and thereby the deceased committed suicide on 30.12.2001 by consuming poison within the period of seven years from the date of her marriage. The accused denied the charges and claimed for trial.

3) The prosecution in order to prove the guilt of the accused examined PWs.1 to 10 and marked Exs.P.1 to P.15 and MO.1. No oral or documentary evidence was adduced on defence side. The trial Court after considering the oral and documentary evidence came to the conclusion that the prosecution proved the guilt of the accused beyond reasonable doubt for the offence u/s.304-B and 498-A IPC and Section 4 of D.P. Act and convicted A.1 for the offence u/s.304-B IPC and sentenced to undergo Rigorous Imprisonment for seven years. He was also convicted for the offence u/s.498-A IPC and sentenced to undergo R.I. for three years and to pay a fine of Rs.27,000/-, in default to suffer Simple Imprisonment for two years. He was also convicted for the offence u/s.4 of D.P. Act and sentenced to undergo R.I. for two years and to pay a fine of Rs.9,000/-, in default to suffer S.I. for one year. A.2 was convicted for the offence u/s.304- B IPC and sentenced to undergo R.I. for seven years. She was also convicted for the offence u/s.498-A IPC and sentenced to suffer R.I. for one year and to pay a fine of Rs.1,000/-, in default to suffer S.I. for two months. She was also convicted for the offence u/s.4 of D.P. Act and sentenced to suffer S.I. for six months and to pay a fine of Rs.1,000/-, in default to suffer S.I. for two months. All the sentences of imprisonment were directed to run concurrently.

4) Being aggrieved by the judgment of the trial Court, dated 27.11.2003, the accused preferred the present Criminal Appeal challenging its validity and legality.

5) The case of the prosecution leading to the conviction of the appellants- accused is briefly as follows:

The marriage of A.1 and the deceased was performed in the year 1999. At the time of marriage, the parents of the deceased agreed to pay Rs.80,000/-, but paid cash of Rs.40,000/- only undertaking to keep the balance amount in fixed deposit in the bank, but they failed to do so. Therefore, A.1 and his mother- A.2 used to abuse and beat the deceased demanding to get the balance amount. When A.1 demanded the balance amount, the father of the deceased said that he would deposit the amount within a week. On 30.12.2001 the brother of A.1 came to the house of PW.1 and informed that the deceased was in serious condition. Whereupon, PW.1 went to the house of the accused and found the dead body of the deceased lying and through the villagers he came to know that the deceased committed suicide on account of harassment for dowry by A.1 and A.2. A report was given to the police and it was registered as a crime. The investigation was conducted and after completion of the investigation, the charge sheet was laid.

6) The learned counsel for the appellants/A.1 and A.2 submitted that both the accused were falsely implicated in the present case; that there was no demand for balance amount of dowry at any time; that there were no specific instances of harassment said to be caused by them; that they are no way responsible for the alleged offences; that there is no direct evidence for the harassment and hearsay evidence of police and other witnesses cannot be relied on in view of the present legal position, therefore, they are liable to be acquitted.

7) The learned Additional Public Prosecutor representing the State submitted that there is no ample evidence to show that there was persistent harassment caused by the accused. Though there is no direct evidence, the inference has to be drawn from the circumstances on the basis of the evidence of the police and other witnesses and the trial Court rightly came to the conclusion that the prosecution proved the guilt of the accused beyond reasonable doubt, therefore, convicted them for various offences. Since the judgment of the trial Court is on the basis of the evidence and legal position, he requested this Court to dismiss the appeal by confirming the judgment of the trial Court.

8) In the light of the above contentions of both parties, the point that arises for my consideration is:

"whether the prosecution proved the guilt of the appellant/A.1 and A.2 beyond reasonable doubt and whether the convictions and the sentences imposed by the trial Court are liable to be set aside?"

9) The prosecution mainly relied on the evidence of PWs.1 to 5. PWs.1 and 2 are the parents and PW.3 is the cousin brother of the deceased. PWs.4 and 5 are the neighbours to the house of the accused.

10) PW.1, the father of the deceased deposed that the deceased committed suicide by consuming poison on account of harassment caused by the accused regarding the demand of balance amount of dowry. About 2 1/2 years prior to the death, the deceased was married to A.1. At the time of marriage, he promised to pay the dowry of Rs.80,000/-. At the time of marriage he paid Rs.40,000/- and he promised to keep the balance amount in fixed deposit, but he did not do so. For about

one or two months, A.1 and the deceased lived cordially. Subsequently, the accused began beating the deceased demanding her to bring the balance dowry amount.

The deceased used to inform the same to them whenever she was visiting their house. About one year after the marriage PW.2 and himself visited the house of the accused and told them that on account of their difficulties they could not deposit the amount and promised that they would deposit the balance amount by adding some more amount and requested the accused not to ill-treat the deceased. About a week later, A.1 telephoned to him stating that the deceased was sick, therefore, he has to get her treated by taking from his house. Accordingly, they brought the deceased to their house and got her treated. Later, A.1 came to their house and took the deceased about two days prior to the incident. After two days, the elder brother of A.1 informed them that their daughter was serious. Immediately they rushed to the house of the accused and found the deceased lying dead. On the next day he presented a complaint to the police. In the cross-examination, he denied a suggestion that the deceased was suffering from some abdominal pain and she was suffering from problems of menses etc. and despite treatment, the ailment was not cured, therefore, she committed suicide being vexed with the life.

11) PW.2, the wife of PW.1 deposed that the deceased was married to A.1 about 11/2 year prior to the death.

She committed suicide by consuming poison on account of harassment and ill- treatment caused by the accused regarding the payment of balance amount of dowry. Though they have promised to pay dowry of Rs.80,000/-, they paid only Rs.40,000/- and promised to pay the balance amount by way of fixed deposit in the bank, but they could do not so. About 1 or 2 months, they lived amicably. Thereafter, the accused started

ill-treating and harassing the deceased asking her to get the balance dowry amount. The deceased informed them about it whenever she was visiting their house. They were visiting the house of the accused once in 2 or 3 months and they advised them to live amicably. One week later, they received telephone call from A.1 informing that the deceased was sick. Therefore, they brought the deceased to their house and got her treated. Two days prior to the death, A.1 came and took the deceased to his house. After 2 days, the brother of A.1 came and informed that their daughter was serious and immediately they visited the house of the accused and found the deceased dead. She also denied a suggestion that the deceased was suffering from abdomen pain and being unable to bear with that she committed suicide.

12) PW.3, the cousin brother of the deceased deposed that the deceased was married to A.1 about 11/2 year prior to her death. At the time of marriage, her parents promised to pay Rs.80,000/- as dowry, but paid only Rs.40,000/- and the balance amount shall be deposited in the bank, but they failed to do so. Therefore, the accused were harassing the deceased and forcing her to get the balance amount. The deceased was telling about it as and when she used to visit her parents house. The parents of the deceased were going to the house of the accused now and then and he was requesting the accused to live amicably promising to pay the amount. One week prior to the death of the deceased, A.1 stated to the parents of the deceased that the deceased was not doing well. Whereupon, the parents of the deceased went to the house of the accused and brought her to their house and got her treated. Later, A.1 came to the house of PWs.1 and 2 and took the deceased along with him. After two days, the elder brother of A.1 informed that the deceased was serious. Immediately they rushed to the house of the accused and found the deceased dead.

13) PWs.1 to 3 are residents of Ramakrishnapur village, whereas, the accused were residents of Kotthur village. Therefore, there is no possibility of PWs.1 to 3 observing A.1 harassing and beating the deceased and it was said to be informed by the deceased that A.1 was harassing her by way of demanding the balance of dowry amount.

14) PW.4, a neighbour to the house of the accused did not support the prosecution version, and he was declared hostile.

15) PW.5 who is another neighbour deposed that the deceased died about 11/2 year back by consuming poison on account of suffering from stomach pain. She further stated that A.1 and the deceased were living cordially and there was no ill-treatment or harassment of the deceased by the accused regarding the demand of balance dowry amount. This witness also did not support the prosecution case and he was declared hostile.

16) After excluding the evidence of PWs.4 and 5, there remains only the evidence of PWs.1 to 3.

17) The learned counsel for the appellant-accused submitted that nobody in the village of the accused came forward to support the version of PWs.1 and 2 that the accused was harassing the deceased demanding the balance of dowry amount. The prosecution witnesses did not further elaborate whether they noticed any injuries on the dead body of the deceased due to beatings. They also did not elaborate whether the harassment was physical or mental. If so, how he was frequently beating the deceased or abusing the deceased, whether there was anybody to witness the harassment or any one of the occasions. It is not the case of PWs.1 and 2 that A.1 and the deceased were not in cordial terms. They were going to the house of the deceased and the accused was visiting their house. Had A.1 has any grouse against the accused, he would not have telephoned to her parents about the sickness of the deceased and even if they took her and keep her at their house, A.1 would not have gone there to bring her to his house and there was short gap between the deceased coming to the house and committing suicide. It is not the case of the prosecution witnesses that whether there was any harassment or beating the deceased immediately prior to the incident.

18) The learned counsel for the appellants-accused further submitted that in order to attract the provisions of Section 304-B IPC, four essential ingredients have to be satisfied. Though first two ingredients that the death must be within seven years from the date of marriage and the death of the deceased was unnatural, the remaining ingredients are not satisfied. Therefore, there is any amount of doubt about the version of PWs.1 to 3 regarding the harassment and beating of the deceased. The Doctor, who conducted Post Mortem examination on the dead body of the deceased, did not mention whether there are any other injuries on the dead body except the symptoms of consuming poison.

19) In the light of the above circumstances, we have to examine the legal position whether the conviction for the offence u/s.304-B IPC can be given on the basis of hearsay evidence of PWs.1 to 3.

i) In Biswajit Halder @ Babu Halder and others v. State of West Bengal1 wherein the Supreme Court held that the following ingredients have to be examined to attract the provisions of Section 304-B IPC: a) the death of a woman should be caused by burns or fatal injury or otherwise than under normal circumstances;

b) such death should have occurred within seven years of her marriage; c) she must have subjected to cruelty or harassment by her husband or any relative of her husband; and

d) such cruelty or harassment should be for or in connection with demand for dowry.

It is further observed that if a married woman dies in an unnatural circumstances at her matrimonial house within seven years from her marriage and there are allegations of cruelty or harassment upon such married woman for or in connection with demand of dowry by the husband or relatives of the husband, the case would squarely come under 'dowry death' and there shall be a presumption against the husband and the relatives.

In the case covered by the above decision, it is held that thee is no evidence to show that there was any cruelty or harassment for or in connection with the demand of dowry. In the above case, the deceased was married to A.1. At the time of marriage, dowry of Rs.43,000/-, and gold ornaments and other articles were given to the appellants, but they were not satisfied with the dowry items. Since the marriage, the deceased was put under pressure to bring one colour TV, English Cot and VIP bag for her father-in-law and other relatives. The deceased time and again reported about the matter to her father and brothers. On different occasions the brother of the deceased requested the accused not to harass the deceased for non-payment of those items. Later, the deceased committed suicide at the house of the deceased by consuming poison and after getting the news, the brother of the deceased and others went to the village of the accused and later they lodged a complaint to the police. Under those circumstances, the Supreme Court held that there is practically no evidence to show that there was any cruelty or harassment for or in connection with the demand of dowry.

The deficiency in evidence proves fatal to the prosecution case. Even otherwise mere evidence of cruelty and harassment is not sufficient to bring the offence under Section 304-B IPC.

ii) In Harjit Singh v. State of Punjab2, the Supreme Court held that when there is no evidence on record to show that the deceased was subjected to cruelty or harassment, the presumption either u/s.304-B IPC or Section 113-B of Indian Evidence Act could not be invoked against the accused and the prosecution must be held to have failed to establish the case against the accused. iii) In Bejjanki Kishan v. State of Andhra Pradesh3 a Division Bench of this Court held that where there is no evidence of harassment for dowry immediately before the death of the deceased, no conviction under Section 304-B IPC or Section 4 of the Dowry Prohibition Act. In the case covered by the above decision, the evidence of close relations of the deceased was adduced to establish that there had been harassment on account of demand of dowry prior to the death of the deceased by the accused, but there is no specific mention by the witnesses as to when the demand of dowry was made in their presence and the evidence of those witnesses is only hearsay. Since there is no proof regarding the demand of dowry and harassment, the prosecution failed to establish the offence u/s.304-B IPC.

iv) In G.M. Ravi @ G. Purushotham v. State of A.P.4 a Division Bench of this Court held that when the accused subjected the deceased to cruelty and when the witnesses examined by the prosecution had no personal knowledge of harassment, but only stated what according to them was told by the deceased to them with respect to the harassment meted out to her by her husband, such statements do not come within the purview of Section 32 of the Indian Evidence Act. Therefore, the conviction of the appellants cannot be sustained. v) In Inderpal v. State of M.P.5 the Supreme Court held that unless the statement of a dead person would fall within the purview of Section 32 (1) of the Indian Evidence Act, there is no other provision under which the same can be admitted in evidence. In order to make the statement of a dead person admissible in law the statement must be as to the cause of her death or as to any of the circumstances of the transactions, which resulted in her death, in cases in which the cause of death comes into question. As there is no single piece of evidence, which can be admitted in law to be used against the appellant we are left with the only alternative to set aside the conviction of the appellant.

vi) In Sakatar Singh and others v. State of Haryana6 the Supreme Court held that the testimony of witnesses about the harassment based on what deceased told them but not based on their personal knowledge cannot be relied upon. Unless it is based on their personal knowledge, the conviction of the appellants could not be sustained.

vii) In Tirath Kumari @ Raj Rani and another v. State of Haryana7 the Supreme Court while considering the scope of Section 304-B IPC held that there is no evidence adduced by the prosecution that soon before her death, the victim was subjected to cruelty by her husband or in-laws in connection with the demand of dowry. The ingredients of presumption of dowry death u/s.113-B of Indian Evidence Act were not established. Therefore, the appellants are entitled to the benefit of doubt.

20) In the present case also, none of the witnesses stated that they have any personal knowledge about the harassment of beatings caused by A.1. No role has been attributed to A.2, the mother of A.1 except a general statement that the accused were harassing the deceased. The statements said to be made by the deceased to PWs.1 to 3 were long prior to the death of the deceased and that is not the information about the circumstances leading to the death of the deceased. Therefore, such statements do not come within the purview of Section 32 (1) of the Indian Evidence Act. Therefore, no reliance can be placed on such statement. In the absence of any other material and as the evidence of PWs.1 to 3 was only hearsay evidence, it is not safe to come to a conclusion that the prosecution proved the guilt of the accused beyond reasonable doubt. The trial Court basing on the evidence of PWs.1 to 3 came to the conclusion that the prosecution proved the guilt of the accused, but in the light of the foregoing discussion, I am inclined to give the benefit of doubt to the appellants.

21) In the result, the Criminal Appeal is allowed and the convictions and the sentences imposed on the appellants-A.1 and A.2 on all the counts are set aside and they are acquitted for all the offences covered by the charges.

?1 2007 (4) Scale 462

2 2006 (1) ALD (Crl.) 316(SC)

3 2005 (3) ALT (Crl.) 207 (DB) (AP)

4 2003 (2) ALD (Crl.) 344 (AP)

5 2003 SCC (Cri) 1049

6 2004 (2) ALD (Crl.) 36 (SC)

7 2006 (1) ALD (Crl.) 42 SC