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No dowry death made out of Dowry Complaint – 498a set aside

HIGH COURT OF ANDHRA PRADESH

Decided on November 03,2008

DUNNAPOTHULA KISTAIAH –Appellant
VERSUS
STATE OF ANDHRA PRADESH

Appellant, who is the sole accused in Sessions Case No.227 of 1999 on the file of the Court of the Assistant Sessions Judge, Siddipet, Medak District, was tried for the offence punishable under section 304-b of the indian penal code 1860, alternatively for the offence punishable under Section 306 of IPC. During the course of trial, the prosecution examined PWs.1 to 10 and exhibited Exs.P1 to P6. On an analysis of the entire evidence both oral and documentary, learned Assistant Sessions Judge came to the conclusion that the appellant is guilty of the offence punishable under Section 304-B of IPC and accordingly sentenced him to undergo rigorous imprisonment for a period of ten years. Questioning the said judgment, dated 10-01-2000, the appellant filed this criminal appeal.

2. According to the case of prosecution the marriage of one Kanakavva (hereinafter called as ‘the deceased’) was performed with the appellant about three years prior to 23-12-1997. At the time of marriage an amount of Rs.8,000/- was paid, besides giving cooking utensils worth Rs.1,000/- and 21/2 grams of gold pusthe, towards dowry, and further it was promised that one tula of gold, 40 tulas of silver anklets and one bicycle will be given later. Immediately after the marriage the same was consummated and the appellant and the deceased lived happily for about 11/2 year. Thereafter the appellant started harassing and ill-treating the deceased for the balance of dowry. It is alleged that seven or eight months prior to the incident, the deceased was left at her paternal home, where she informed her parents, who were examined as PWs.1 and 2, about the ill-treatment meted out by her at the hands of the appellant. The deceased stayed at her paternal home about six months and thereafter the appellant took her to the marital home. As the demand for the balance of dowry was continuous, PW-1, father of the deceased, went to Janagaon on 22-12-1997 and bought gold and silver anklets and when he reached his house, he came to know about the death of the deceased and immediately he along with his relatives reached the house of the appellant at 12 midnight and found the dead body of the deceased. Later based on Ex.P1, report, given by PW-1, the Station House Officer, Thoguta Police Station registered a case in Crime No.76 of 1997 under Section 304-B of IPC. On a requisition, the Mandal Revenue Officer, who was examined as PW-9, visited the scene of offence, conducted inquest over the dead body of the deceased in the presence of the panchayatdars, who were examined as PWs.5, 6 and 7. Later the dead body of the deceased was sent to the Medical Officer, who was examined as PW-8, and he conducted autopsy over the dead body of the deceased and issued Ex.P4, postmortem report, opining that the death was due to ‘consumption of organo phospate an insecticide poison’. The Sub Divisional Police Officer, Siddipet, who was examined as PW-10, took up investigation, recorded the statements of all the witnesses, arrested the appellant on 09-01-1998 and on receipt of Ex.P4, postmortem report and Ex.P5, forensic science laboratory report, filed the charge sheet against the appellant.

3. The plea of the appellant is one of total denial.

4. Heard Mr. Jogram Tejavath, learned counsel for the appellant and learned Additional Public Prosecutor.

5. The main contention of the learned counsel for the appellant is that there is abnormal delay in lodging the first information report and as the said delay is unexplained, the trial Court ought not to have convicted the appellant, as if he is guilty of the offence punishable under Section 304-B of IPC. It is his further contention that except the interested and discrepant testimony of PWs.1 to 4 there is absolutely no other incriminating material to hold that the appellant harassed the deceased for dowry and on account of which alone the deceased committed suicide.

6. Per contra, learned Additional Public Prosecutor opposed the said submissions stating that no woman would take the extreme step of committing suicide unless there are compelling circumstances. According to him, as the death of the deceased had taken place within three years of the marriage and the same is unnatural death, the presumption has to be drawn that the said suicide is solely on account of the dowry harassment and as such the trial Court is justified in convicting the appellant for the offence under Section 304-B of IPC. It is also according to him that the evidence of PWs.1 to 4 is cogent and clinching and that itself is sufficient to base a conviction.

7. From the facts it is clear that the deceased committed suicide at about 2 P.M. on 22-12-1997 and on receipt of information PWs.1, 2 and others visited the house of the appellant at 12 midnight and the report was given at 7-30 P.M. on 23-12-1997. So, it can definitely be concluded that there is delay in lodging the first information report. But, is such delay fatal to the case on hand, is the question. It came in the evidence that PWs.1, 2, 3 and 4 reached the village of the appellant in the midnight of 22-12-1997 and there was a panchayat upto 4 P.M on 23-12-1997 and the said panchayat was in respect of giving of money. It is only thereafter the said report was given at 7-30 P.M on 23-12-1997. No doubt, the delay in lodging a report definitely plays a vital role, but every delay cannot be said to be fatal to the case of the prosecution. It depends on the facts and circumstances of the case. In faction cases, there is a possibility of deliberations and false implications and in such cases delay in lodging the first information report plays a vital role. Coming to the case on hand admittedly, the family of the appellant as well as the family of PW-1 is rustic and they belong to down trodden community, where there is every possibility of getting the matters settled amicably for money. Further, it came in the evidence of PW-1 that the village elders held a panchayat upto 4 P.M. on 23-12-1997, during the course of which the appellant and PW-3 had a quarrel. Thereafter the police came and took PW-3 and the appellant to the police station. From the above evidence of PW-1 coupled with the evidence of PWs.2 to 4 it is clear that the report was not lodged immediately after the incident and a panchayat had taken place before the elders, and thereafter at about 7-30 P.M on 23-12-1997 Ex.P1 report was lodged by PW-1. Hence, it cannot be said that the said delay is fatal.

8. Now what is to be seen is whether the said evidence of PWs.1 to 4 is convincing. No doubt, PWs.1 to 4 in one voice stated about the harassment for dowry and the subsequent events after the marriage, but it shall not be forgotten that PWs.1 to 4 are closely related to the deceased. PW-1 – the de facto-complainant is the father of the deceased, PW-2 is the mother of the deceased, PW-3 is the brother of the deceased and PW-4 is the eldest brother of PW-1. Simply because they are closely related to the deceased and they are interested in the deceased, it cannot be said that their evidence is to be brushed aside or it need not be given any credence. But such evidence shall be weighed carefully and further such evidence needs some sort of corroboration by some independent evidence. Except the testimony of PWs.1 to 4 there is absolutely nothing on record to establish the fact that there was harassment for dowry. According to PW-1 immediately after receipt of the information about the death of his daughter i.e. the deceased, he and some ten members came to the village of the appellant in a tractor, but the prosecution for obvious reasons has not chosen to examine anybody. In families of this nature as and when there are any quarrels for anything the matters will be placed before the elders of the community so that the matters can be resolved. When it is the case of the prosecution that there was harassment for additional dowry and the deceased was left at her paternal home for a period of six months it is not known as to why no mediation had taken place and even if such a mediation had taken place why the same is not spoken to during the course of evidence. If really there was harassment, in the normal circumstances there would be some sort of mediation and the elders, who participated in the said mediation, would have been cited as prosecution witnesses.

9. From the above, it can be inferred that there was no quarrel between the appellant and the deceased particularly with regard to the dowry. Of course, as rightly contended by the learned Additional Public Prosecutor, as and when an unnatural death of a woman had taken place within a span of seven years from the date of marriage, a presumption under section 113-b of the indian evidence act, 1872 shall automatically be drawn. But such a presumption is not conclusive and it is a rebuttable presumption. Further it shall not be forgotten that according to Section 304-B of IPC another aspect has also to be established i.e.

“soon before the death of the deceased there should be harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry”

. A scan of the evidence of PWs.1 to 4 does not reveal that there was harassment for dowry soon before the death of the deceased and on account of the said harassment only she had taken the extreme step of consuming poison and thus committed suicide. In order to attract the provisions of section 304-b of ipc, the prosecution shall establish all the three requirements viz., 1) death of a woman must have been caused by any burns or bodily injury or otherwise than under normal circumstances; 2) such death must have been occurred within seven years from the date of her marriage 3) soon before her death she was subjected to cruelty or harassment, by her husband or relative of her husband for, or in connection with demand for dowry. It is unfortunate a woman aged about 20 years committed suicide within three years from the date of her marriage, but that cannot be a ground to hold that the said death was solely on account of the dowry harassment and the appellant alone is responsible for such unnatural death of the deceased.

10. In the result, the criminal appeal is allowed and the conviction and sentence imposed on the appellant-accused in S.C.No.227 of 1999, vide judgment dated 10-01-2000, by the learned Assistant Sessions Judge, Siddipet, Medak District, are set aside. The bail bond of the appellant shall stand cancelled.

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