High Court of Andhra Pradesh
Criminal Appeal No.1557 of 1998
Decided On, 05 October 2004
THE HONOURABLE MR. JUSTICE P.S. NARAYANA
For the Appellant: C. Praveen Kumar, Advocate. For the Respondent: Public Prosecutor.
JUDGMENT P.S. Narayana, J.
1. This is a matrimonial tragedy of an alleged dowry death which resulted in the conviction of the appellant/accused under Section 304-B I.P.C. and sentence of Rigorous Imprisonment for seven years.
2. The appellant/accused lost his wife and the daughter too due to the incident in question.
Facts in brief:
3. The sole accused Veeramanchaneni Satyanarayana/appellant filed this Criminal Appeal against the Judgment dated 9-11-1998 in S.C.No.129/94 on the file of Sessions Judge-Mahila Court-Vijayawada. On the first information furnished by the accused on 16-4-1993 at 2 a.m., Ex.P-4, Cr.No.76/93, Law Order Patamata Police Station was registered. The II Metropolitan Magistrate, Vijayawada has taken the case as P.R.C.No.15/94 and committed the same to Metropolitan Sessions Judge, Vijayawada which was transferred to the Sessions Judge, Mahila Court, Vijayawada on the point of jurisdiction.
4. The version of the prosecution is that the accused has been addicted to drinking and he harassed his wife Padmasri @ Padma, hereinafter referred to as “first deceased”, by making unlawful demands for money subjecting her to mental and physical cruelty that he would marry again if she does not sell away 25 cents of land. Having vexed the first deceased left three death notes and she also murdered her daughter, hereinafter referred to as “second deceased” by hanging her and committed suicide by hanging herself on 15-4-1993 after 7.30 p.m. and before 10 p.m. Evidence available on record :
5. The evidence of PW-1 to PW-11, Ex.P-1 to P-17, M.Os.1 and 2 and Exs.D-1 to D-6 are available on record.
Findings of the learned Judge :
6. Ex.P-4 F.I.R. was given by the accused to police. PW-1 informed the accused that his house was locked. PW-10, cousin of the first deceased and the accused, tried to open along with certain others and after pushing doors of window and opening had observed and confirmed that the first deceased died. The evidence of PW-3 and PW-4, the parents of the first deceased, had been discussed at length. Findings had been recorded in relation to Ex.P-1 letter to the effect that the first deceased demanded her parents to give some amounts supposed to have been given at lagnapatrika and not given to her at the time of marriage. The death notes Exs.P-9 to P-11 had been discussed and certain reasons had been recorded and Ex.P-9 was viewed with some suspicion. Suspicion on the part of the accused in relation to the incident also had been recorded. Finding had been recorded that the accused subjected the first deceased to cruelty. Nexus between the death of the first and the second deceased and harassment and cruel treatment had been established. Evidence of PW-3 to PW-5 and PW-10 cannot be thrown out as interested evidence. Since death occurred within seven years of marriage under suspicious circumstances, accused to be convicted. The evidence of PW-1 was not accepted.
7. These are the findings of the learned Judge, in nut-shell.
8. Sri Padmanabha Reddy, the learned Senior Counsel representing the appellant would submit that none of the findings recorded by the learned Judge can be sustained. The learned Counsel while taking this Court through the evidence available on record would contend that the evidence of PW-1 is to the effect that all the monetary transactions were being managed by the first deceased only and in such a case it is highly improbable and unnatural that due to the harassment for the produce from Ac.0-25 cents of land or due to harassment for any monetary demand in relation to dowry or otherwise the first deceased would have committed suicide. The ingredients of dowry death had not been satisfied. The learned Counsel also meticulously had taken this Court through the oral and documentary evidence available on record and also referred to Ex.P-1 letter and also Exs.P-9 to P-11 death notes. The Counsel also would submit that the learned Judge had entertained a suspicion in view of certain sentences in Ex.P-4 and on that ground recorded certain findings unsustainable in law and ultimately arrived at the conclusion that the appellant/accused to be convicted under Section 304-B I.P.C. The whole approach adopted by the learned Judge is definitely erroneous since on the aspect of burden of proof the general principles relating to burden of proof in a criminal trial are applicable even in the case of dowry death and unless there is legally acceptable evidence on just mere presumption available in favour of the prosecution, it would be totally unjust to convict the appellant/accused.
9. Per contra, the learned Additional Public Prosecutor Mr.Mohd.Osman Saheed made the following submissions :
The learned Additional Public Prosecutor would contend that dowry is a social evil and while dealing with a matter of this nature, except the interested witnesses there cannot be other witnesses available since the knowledge of other witnesses as far as domestic problems are concerned would be very limited since these are all matters relating to harassment within four walls and more concerned with domestic problems which may not be known to the outside world in several of the cases and hence the evidence available on record may have to be carefully scrutinized. The learned Additional Public Prosecutor also had explained the object of introducing the said provision. The learned Counsel would submit that the mere fact that the parents of the first deceased are not so financially sound and the accused is otherwise financially sound may not be a ground to disbelieve the version of the prosecution and it would depend upon the mental make up of a particular person and a person though very rich may be very greedy of getting some more amount. The learned Additional Public Prosecutor also had taken this Court through the findings recorded by the learned Judge and would submit that the learned Judge correctly placed reliance on Ex.P-1 and viewed Ex.P-9 with suspicion and ultimately in the light of the evidence available on record, disbelieving the evidence of DW-1 arrived at the correct conclusion and hence the conviction and sentence imposed as against the appellant/accused may have to be confirmed.
10. Heard both the Counsel and also perused the oral and documentary evidence available on record and also the findings recorded by the learned Judge.
11. PW-3 is the father of the first deceased who deposed that he had celebrated the marriage of his second daughter with the accused about 10 years ago and at the time of marriage he gave Ac.0-25 cents of land to the deceased and the accused used to harass his daughter demanding for the yield from the said land and he presented 10 kasus of gold ornaments to his daughter and the accused is running a tea stall in Autonagar. The first deceased gave birth to two daughters and her eldest daughter Vijayalakshmi was aged about five years and used to live with the first deceased and the second daughter and the first deceased used to live with them. PW-3 further deposed that he was visiting the deceased now and then. He further deposed that the accused used to harass the first deceased on the ground that the yield from the land was not given. This witness also deposed that some time back on one day at about 12 midnight one Sambaiah came to his house in a car and informed him that the condition of the first deceased was serious and they all went to the eldest daughter’s house at Peda Ogirala and took her with them and went to Patamata. He further deposed that the second deceased was made to suspend from the ceiling fan in the bed room with a new cotton rope. The first deceased was made to suspend from ceiling fan in the kitchen and in the front hall there were some writings and Police came and asked them to open the doors and he had not opened them. The accused came there and then the doors were opened. PW-3 also deposed that he used to pay the value of the yield from the land, but the accused was harassing the deceased on the ground that some more money is due to be paid. This witness also deposed that he presented a gold ring to the accused and on the ground that he failed to present that article also he harassed the deceased. M.Os.1 and 2 are the ropes with which the dead bodies of the deceased 1 and 2 were suspended. This witness was cross-examined and in cross-examination PW-3 deposed that by the date of the marriage of the first deceased he was not owning any property and the property Ac.0-26 cents was given to the first deceased by his mother much prior to her marriage by executing a registered gift deed. He also deposed that in their community, the custom is to celebrate the marriage at the house of bride’s parents. The marriage of the first deceased took place at the house of the elder brother of the accused at Vijayawada and no doubt he denied certain suggestions and he specifically denied the suggestion that he got no capacity to celebrate the marriage and it was celebrated at the house of the brother of the accused at their expenses and he had not given Rs.5000/- to them. This witness further deposed that the net income from the land of the first deceased is Rs.1000/- and at the time of marriage he could not present gold ring to the accused and he promised to do so later. This witness further deposed that he does not know whether the first deceased used to maintain the account pertaining to the money lending business, but he denied that she used to lend money and collect the repaid amount in the absence of the accused and this witness also denied the suggestion that he borrowed money from the accused as hand loan and repaid the same partly only. PW-3 also further deposed that he does not know whether the first deceased herself noted that he borrowed money from the accused and this witness denied that the first deceased used to feel on the ground that he was not repaying the amounts regularly. He also denied a suggestion that the first deceased was highly emotional in nature and used to get perturbed even for small things. The second deceased is in the custody of the accused only and he does not know whether the passbook is issued in the name of the second daughter of the accused for the land owned by her mother. PW-3 also deposed that he does not know whether the accused deposited huge amount in the name of his second daughter. This witness also denied that the accused used to look after his daughter properly and added that he is a drunkard and admitted that he had not stated so before the Police. The other suggestions were denied. This witness also deposed that it is not true to suggest that he stated to Police as in Ex.D-6. The relevant portion marked as Ex.D-6 reads : “The police seized the said letters. The script of the said letters were written by my daughter”.
12. This is the evidence of PW-3.
13. PW-4 is the wife of PW-3 and no doubt in general she supported the version of PW-3 and also deposed that the accused used to send her deceased daughter to her house for bringing money now and then and her daughter is a literate and she learned tailoring also. This witness also deposed that the first deceased addressed letters and she brought a letter of her daughter, the first deceased. Ex.P-1 is the letter received by her from the first deceased. Ex.P-2 is the acknowledgement card containing the hand-writing of the first deceased. Ex.P-3 is the note book containing her hand-writing and she was in the habit of signing in English only but not in Telugu and she had deposed about all the other details. No doubt several suggestions were put and she had denied all the suggestions inclusive of the suggestion that Ex.P-2 and P-3 do not bear the hand-writing of her daughter, the first deceased, and Ex.P-1 is not the letter addressed to her by her daughter. This witness also deposed that it is not true to suggest that herself and her husband PW-3 stated to Police that her daughter has written three letters shown to her now as in Ex.D-5. The relevant portion in the statement of this witness, marked as Ex.D-5, reads : “While dying my daughter wrote three letters”.
14. This is the evidence of PW-4.
15. PW-5 is the sister of the first deceased who deposed about the episode of Ac.0-25 cents of land also that after marriage her sister joined the accused and she visited her now and then and the first deceased informed her that the accused was harassing her on the ground that money to be paid by her parents was not paid to him even though her parents paid away the money to be paid by them and the accused used to harass her making demands for more money and also for a gold ring. She had deposed about the other aspects also in a way corroborating the evidence of PW-3 and PW-4 in this regard, but her evidence is more in the nature of hear say. It is pertinent to note that she specifically deposed that her sister informed her that the accused was harassing her on the ground that money to be paid by her parents was not paid to him even though her parents paid away the money to be paid by them. The evidence is not clear whether these amounts relate to any other monetary transactions between the parents in law and the accused or it is in relation to what had been deposed by PW-3 and PW-4.
16. PW-10 deposed that the first deceased was a daughter of his junior paternal uncle and she died on 15-4-1992 and on that day at about 9.30 p.m. the accused came near to his house and asked his wife about him and later he came to him and took him on his scooter to his maternal uncle’s house stating that he wanted to say something to him and his maternal uncle asked the accused where he had gone stating that he went to his house at about 8.30 p.m. to present Pasupukunkuma and found the doors of his house locked and the accused informed that the house was found locked and the whereabouts of his wife were not known and that he was afraid of the things and his maternal uncle enquired with him to know whether the accused abused his wife. The accused informed his uncle that during that morning he abused his wife and pressed her to bring monies due to him from her father and his uncle admonished the accused severely stating that due to abuses hurled on his part only the first deceased might have committed something. PW-10 further deposed that at their instance he brought an auto and in that they went to the house of the accused. The accused tried the doors and windows on the front side but could not open the same and then they went to the back side of the house and pushed the doors of window and observed the body hanging there and they confirmed that the first deceased died. This witness, PW-10, also was cross-examined.
17. It is not in controversy that Ex.P-4 was given by the accused himself and it reads as hereunder :
“I am residing in the ground floor of Raghava Apartment in your area. I got Hotel business at Autonagar. I went to the Hotel by starting at 6.00 P.M. from my office. Then I went to Patamata for collection of daily interest amounts from the hotel. Again I went to my hotel after collections. While I was present at my hotel at about 10.00 P.M. after completion of my hotel business, killi shop Sreenu, neighbour at my shop came to me and informed that he went to my house to give Tirupathi Prasadam and as the house was locked. Therefore he came to me again and to give the Prasadam brought from Tirupathi. Then I went to my house and found the house being locked. When I enquired the opposite neighbours, they informed me she went out along with my daughter saying to receive milk and gave a milk pot vessel to them and also saying that she would return within one hour. Then I opened the lock with the duplicate key and found the doors were bolted from inside. Then I went behind the house and found that the back side doors also bolted from inside. Then I questioned the opposite neighbours that “you told that she went out but the doors are bolted from inside”? Then they also came and pushed the doors and found bolted and not opened. Presuming that she might have gone to her brothers’ house while asking my daughter to bolt from inside, I went to her brothers’ house and asked whether my wife has come, but they have informed me that she has not come there. Then I came back to my house and opened the windows and saw, I found my wife hanging to the ceiling fan in the kitchen room binding with the rope from neck to the fan hook by standing on the sewing machine. Then I confused and sent message to my in-laws and other relatives and after they all arrived, I informed them as above fact, after I came to the Police Station and presented this report for your notice. ON 16-4-1993 at about 2-00 O’ clock report was given by me.”
18. The other evidence available on record is that of PW-6, Police Constable in II Town P.S. who deposed that on 16-4-1993 the S.I. of Police deputed him to take the dead body of the deceased for post mortem examination and after post mortem examination he handed over the dead body to the blood relations. PW-7 is the Constable who was deputed to take the dead body of the second deceased for post mortem examination. PW-8 is the Assistant Sub-Inspector who deposed that the accused came and gave Ex.P-4 report and he registered the same as Cr.No.76/93 under Section 174 Cr.P.C. of Patamata Police Station and Ex.P-5 is the F.I.R. and he had sent Ex.P-5 the Executive Magistrate and copies of the same to all the concerned authorities and further investigation was taken over by the Sub-Inspector of Police.
19. PW-9 is the S.I. of police who deposed that on 16-4-1993 he received a copy of Ex.P-5 and had taken up the investigation and visited the scene of incident in Raghava Apartments of Vijayanagar colony and secured the presence of mediators and in their presence he observed the scene of offence and also drafted the observation report in their presence. Ex.P-6 is the said report. It may be pertinent to have a look at the relevant portion of Ex.P-6, the observation report, which reads as hereunder :
“On the said white paper it was scribed as (1) “Nobody is responsible for my death. Having no desire to live, I am dying – Padma”. When turned the 2nd page and saw it is as follows, “May you think it to be murder on seeking the lock at out side – myself opened the rear side doors locked on front side and entered inside; and committed hanging after coming inside and closed doors – Padma”. Then in the inland cover addressed to Rama Rao, it was written as follows : (2) “Dear father and mother don’t utter anything on seeing my dead body. Go away without speaking. Take care of his daughter up to 11/2 year and hand over her to him – I remain – Padma”. In the back page of the letter it was written as “you don’t picked up any quarrel. The following contents are in the letter written to Veeramanchaneni Satyanarayana. (3) “Dear husband, you should admit my younger daughter in the hostel – Padma” and educate her. Because ill feelings should not arise to your wife, you and to your children on account of my daughter. Therefore you should educate my younger daughter by admitting her in the hostel – Padma.”
20. This witness PW-9 also further deposed that in the presence of panchayatdars he conducted the inquest over the dead bodies of the deceased 1 and 2 and recorded statements of various witnesses i.e., accused, PW-1 to PW-5 and subsequently he altered the section of law from Section 174 Cr.P.C. to Sections 498-A, 302, 306 and 109 I.P.C. Ex.P-7 is the altered F.I.R. Ex.P-8 is the rough sketch of the scene of incident prepared by him. He also seized some letters from the scene of incident and Exs.P-9 to P-11 are the said letters and he got the scene of offence photographed. Ex.P-12 are the eleven photographs with corresponding negatives.
21. It may be relevant to have a look at the letters Exs.P-9 to P-11 which read as hereunder :
“Have to go to the house of Narayana Rao.
Spectacles are to be repaired.
Have to go to Insurance Company.
Have to give money to Charminar Venkateswara Rao.
Have to brought to Idly plates.
Engine is to be asked from Basha.
Have to ask money from Achari and Reddy.
Have to go to uncle house on the A.N. of 16th.
Iron cots is to be ordered.
May you think it to be murder on seeking to the lock at outside; myself opened the rear side doors, locked on front side and entered inside and committed hanging after coming inside and closed doors.
At 2nd Page: Nobody is responsible for my death having no desire to live, I am dying.
To Dt.15-4-1993 Dear Husband, You should admit my younger daughter in the hostel and educate her. Because ill feelings should not arise to your wife, you and to your children on account of my daughter. Therefore you should educate my younger daughter by admitting her in the hostel.
To Dear Father and Mother, Don’t letter anything on seeing my dead body. Go away without speaking. Take care of his daughter upto 11/2 year and handover his daughter to him.
22. This witness, PW-9, in cross-examination deposed that it is true that in the presence of accused and also the parents of first deceased I broke open the doors of the house of the accused and even though they unlocked the doors from outside they could not open the same since the doors were bolted from inside. He also deposed that it is true that the back side door was bolted from inside and was locked. This witness also deposed that PW-4 stated to him as in Ex.D-5 and PW-3 stated before him that his daughter left three letters which are in her hand-writing. He also further deposed that it is true that PW-4 had not stated before him that an amount of Rs.25,000/- in cash and 10 soverins of gold ornaments were presented to the first deceased at the time of her marriage. Exs.P-15 and P-16 are the inquest reports pertaining to deceased 1 and 2 respectively.
23. PW-11 deposed that he had taken up the investigation in the case and perused the inquest reports and examined PWs.7 to 10 and recorded their statements and arrested the accused and forwarded him to judicial remand. After completion of investigation this witness filed the charge sheet.
24. This is the evidence available on record relating to the investigation.
25. Ex.P-1, on which findings had been recorded by the learned Judge at length, reads as hereunder :
“To Dear Father and Mother, Written with namaskarams by Padma. All are safe here. I think that you are also safe there. Satyam uncle came here. I asked money. He replied as he will give on 20th. I told here to my husband as he will be paid on 22nd. But you will not come till now, and money was not taken by you. This is second time. I wrote letter to you about the money. I told to you, not to give money to Bose. Because he did not give soon. Even though, you gave the money to Bose. Since one month twenty days you did not took the money. Our Munni is well. You must bring the money on Wednesday on your receipt of my letter. If you were not given the money by Bose, you must be give money to me by selling your house. You must come and give my money to us and go. You must give money on the house with the Lagnapatrika. But you did not gave after our marriage. I will be gave birth to another child also. When will you give money. My husband is abusing me daily. On receipt of this letter you must come and give money.”
26. PW-2 was examined who deposed that at about 7.30 p.m. the first deceased had given PW-2 a vessel asking her to collect milk for her from the milk vendor and then went away. At about 10 p.m. the accused came there and enquired with her about his wife and she told him that the first deceased gave her a vessel for collecting milk and went away and later she came to know that the incident took place. This witness was cross-examined only to this limited extent. The evidence of PW-1 is to the effect that he is running a pan shop and he knows the accused and his wife, the first deceased, also and his pan shop is adjacent to the hotel belonging to the accused and on that day he went to the house of the accused to give prasadam which he brought from Tirupathi and the doors were closed and there was curtain covering the same and he knocked the door and nobody answered and so he observed the doors by pushing aside the curtain. Then he found the doors were locked and then he went to the hotel and gave prasadam to the accused and when he informed the accused that he went to his house but found the doors locked, the accused insisted whether he actually observed the doors of his house having been locked and then he stated to the accused that he found them to be locked. PW-1 also deposed that after distribution of prasadam to some others he went home and found several people being gathered at the house of the accused and he went to the house of the accused and it was about 11.30 a.m. then and through the window of the said house he observed the deceased being suspended from the ceiling. He further deposed that police broke opened the doors of the house and they found the dead body of the daughter of the accused also suspending from the ceiling. As per the evidence of this witness PW-1, he is having good acquaintance with the accused and these families were on visiting terms with each other. He also deposed that the accused is owning a house in Autonagar and is running a hotel in it. He further deposed that the accused used to do money lending business also and the first deceased used to assist the accused in his money lending business by collecting money and also by giving money as per the instructions of the accused and also by maintaining the accounts of the same during his absence from the house. The accused used to remain in the hotel most of the time looking after his business. PW-1 further deposed that he does not know whether the deceased was looking after the operations of the Bank account also. He also deposed that he also borrowed money from them and repaid them and his name also is mentioned in their account book and Ex.D-1 is the accounts book containing the hand-writing of the deceased which he can identify and his name was noted in page Nos.52, 64, 70, 81 and in other pages of Ex.D-1 with Sl.No.24 and Ex.D-2 is another account book maintained by the first deceased and most of the pages in Ex.D-2 appear to have been torn. Ex.D-3 is another account book being maintained by the deceased. This witness also deposed that he discharged all the loans taken by him from them and Ex.D-4 also is the account maintained by the deceased. PW-1 also deposed that the accused and the first deceased used to live together amicably. In re-examination PW-1 also deposed that the deceased maintained the accounts some times in his presence and the book regarding his loans is not available with him now due to lapse of long time.
27. Apart from this evidence of PW-1, the evidence of DW-1 also is available on record, who had deposed that he is doing milk business and PW-3 and PW-4 are from his village and he knows the accused and his family and the accused is running a hotel at Vijayawada and his brother is also running a hotel and he got acquaintance with them since he himself got fixed the alliance between the accused and the first deceased. This witness also deposed that usually in their community the marriage will be celebrated at the house of the bride’s parents but the marriage of the accused had taken place at the house of Rajendra Prasad, his brother, and at the time of the said marriage there was neither a demand for any monies or gifts and no such payment was given since then and since the bride’s party expressed their inability to celebrate the marriage, the marriage was celebrated at the house of the brother of the accused. This witness also deposed that he used to supply milk to the accused at his house and since the last three years, he stopped milk business and to his knowledge the accused and the first deceased were living together amicably and the first deceased was not a hot tempered woman.
28. On the strength of this evidence, certain findings which had been referred to supra had been recorded by the learned Judge. Submissions at length were made by both the Senior Counsel Sri Padmanabha Reddy and the learned Additional Public Prosecutor relating to the appreciation of evidence in a case of this nature concerned with dowry death. In KAILASH KAUR Vs. STATE OF PUNJAB 1 it was held as hereunder:
“Whenever a case of gruesome murder of a young wife by the barbaric process of pouring kerosene oil on the body and setting her on fire as the culmination of a long process of physical and mental harassment for extraction of dowry comes before the Court and the offence is brought home to the accused beyond reasonable doubt, it is the duty of the Court to deal with it in most severe and strict manner and award the maximum penalty prescribed by the law in order that it may operate as a deterrent to other persons from committing such anti-social crimes.”
29. Reliance also was placed on BRIJ LAL Vs. PREM CHAND 2 wherein it was held :
“In the instant case there was overwhelming evidence to establish that life of deceased was made intolerable by the accused, advocate by constantly demanding of her to get him money and also beating her frequently. In spite of deceased writing to her brother and mother for a sum of Rs.1000/- being sent immediately, the accused did not relent in his insistence for immediate compliance of his demand. The accused wanted immediate payment of the sum of Rs.1000/-. The accused went to the extent of saying that deceased can go to hell but he should get his sum of Rs.1000/- forthwith. Deceased on the fateful day reacted by saying that because of the accused quarrelling with her every day over the payment of money, she preferred death to life in this world. The accused, far from expressing regret for his conduct, drove her to despair by further saying that she can provide him relief quicker by dying on the very same day and that she need not postpone her death to the next day. After leaving deceased in the house, the accused went to the Court and one hour after that shrieks were heard coming from the house occupied by the accused and deceased. The local persons rushed to the house and saw deceased lying on the ground with extensive burn injuries on her body. In hospital the doctor found her to have sustained severe burns and to be in a state of shock. At the autopsy, it was noticed that she had sustained 19 burn injuries. Her death was certified to be due to shock resulting from the burn injuries.
Held, in the circumstances that the accused had instigated deceased to commit suicide and therefore he would be guilty under Section 306 I.P.C. A person can abet the commission of an offence in any one of the three ways set out in Section 107. The case of the accused would squarely fall under the first category viz., instigating a person to do a thing. In such circumstances, the need to invoke explanation II does not arise. Therefore the order of the High Court acquitting accused on basis of imaginary promises would be liable to be set aside.”
30. Strong reliance also was placed on GURBACHAN SINGH Vs. SATPAL SINGH 3 wherein the Apex Court considered the aspect of proof required in the case of suicide or accidental death by a newly wedded girl dying of burn injuries and the availability of presumption under Section 113-A of the Indian Evidence Act, 1872. In SHANTI Vs. STATE OF HARYANA 4 it was held :
“Now we shall consider the question as to whether the acquittal of the appellants of the offence punishable under Section 498-A makes any difference. The submission of the learned Counsel is that the acquittal under Section 498-A I.P.C. would lead to the effect that the cruelty on the part of the accused is not established. We see no force in this submission. The High Court only held that Section 304-B and Section 498-A, I.P.C. are mutually exclusive and that when once the cruelty envisaged in Section 498-A I.P.C. culminates in dowry death of the victim, Section 304-B alone is attracted and in that view of the matter the appellants were acquitted under Section 498-A I.P.C. It can therefore be seen that the High Court did not hold that the prosecution has not established cruelty on the part of the appellants but on the other hand the High Court considered the entire evidence and held that the element of cruelty which is also an essential of Section 304-B I.P.C. has been established. Therefore the mere acquittal of the appellants under Section 498-A I.P.C. in these circumstances makes no difference for the purpose of this case. However, we want to point out that this view of the High Court is not correct and Sections 304-B and 498-A cannot be held to be mutually exclusive. These provisions deal with the two distinct offences. It is true that “cruelty” is a common essential to both the Sections and that has to be proved. The Explanation to Section 498-A gives the meaning of “cruelty”. In Section 304-B there is no such explanation about the meaning of “cruelty” but having regard to the common back ground to these offences we have to take that the meaning of “cruelty or harassment’ will be the same as we find in the explanation to Section 498-A under which “cruelty” by itself amounts to an offence and is punishable. Under Section 304B as already noted, it is the “dowry death” that is punishable and such death should have occurred within seven years of the marriage. No such period is mentioned in Section 498-A and the husband or his relative would be liable for subjecting the woman to “cruelty” any time after the marriage. Further it must also be borne in mind that a person charged and acquitted under Section 304B can be convicted under Section 498-Awithout charge being there, if such a case is made out. But from the point of view of practice and procedure and to avoid technical defects it is necessary in such cases to frame charges under both to the sections and if the case is established they can be convicted under both the sections but no separate sentence need be awarded under Section 498-A in view of the substantive sentence being awarded for the major offence under Section 304B“.
31. It is pertinent to note that the evidence of PW-5, sister of the first deceased, is general in nature. The evidence of PW-3 and PW-4 is to the effect that harassment was due to the yield from Ac.0-25 cents of land and also demand of some more money and for a gold ring. Submissions at length were made in relation to Ex.P-1 letter, the contents of which already had been referred to supra. It is the version of the prosecution that Ex.P-1 letter is said to have been received by the parents of the first deceased. The evidence of PW-1 and Exs.D-1 to D-4 would go to show that the accused had been doing his hotel business and almost all the money lending business and the accounts had been supervised by the first deceased only. So virtually many of the monetary transactions were being done by the first deceased. It is also pertinent to note that PW-5 was not specific in relation to what amounts there had been some controversy. The evidence of DW-1 is available on record and the customary practice of celebration of the marriage had been deviated in view of the financial capacity of the parents of the first deceased. It is DW-1 who had settled the alliance and his evidence is natural and convincing and the said evidence need not be disbelieved on any ground whatsoever. The evidence of PW-1 also is available on record, a family friend of the family of the accused and the first deceased. He had specifically deposed that these were living amicably. It is also pertinent to note that specifically it was suggested to PW-3 that may be in the money lending business certain amount had been borrowed by PW-3, the father-in-law, and due to non-repayment there was some problem and the amounts only had been partly paid. It may be that certain other money transactions would have been there. Money transactions in between parents-in-law and son-in-law always need not be in relation to the transaction of dowry and dowry alone. It would depend upon the relationship between the parties. It is no doubt true that the learned Additional Public Prosecutor would contend that merely because the accused is sufficiently rich it cannot be said that he need not be greedy especially in view of the fact that he has been doing money lending business. This argument can be utilized in aid of both the parties as well, the reason being that in the light of the suggestions put to PW-3 it appears the stand taken by the defence is that in money transactions when certain amounts had been received by PW-3 and they were not repaid regularly, there were some problems. This fact is probabilised by the evidence of DW-1 and also PW-1 as well upto some extent, may be with the further statement made by PW-5 in relation to repayment of the amounts. Thus, suggestions put to PW-3 in this regard would assume lot of importance. It is no doubt true that in Ex.P-1 certain sentences would denote that it is in relation to certain amounts in connection with what had been settled during Lagnapatrika. It is also pertinent to note that Exs.P-9 to P-11, the death notes, also were seized by the police and these were admitted to be in the hand-writing of the first deceased by PW-3 and PW-4 as per Exs.D-5 and D-6. Where two views are possible on the material placed by the prosecution, one that can be culled out from Ex.P-1 and the other from Exs.P-9 to P-11, the death notes, it is needless to say that the view pointing out the innocence which may result in giving benefit of doubt to the accused may have to be preferred. Apart from it, drawing of presumption may not in any way alter or change the concept of burden of proof in criminal trial and the principle of prosecution discharging burden beyond all reasonable doubt and especially the guilt of the accused, is applicable in equal vigor even in case of dowry death and no doubt presumption may also be taken in aid for convicting the accused if there is other legally acceptable evidence on record pointing out the guilt of the accused but conviction cannot be based on such presumption alone. Sensitivity and psychological temperament and the other like reasons in such cases also may be relevant reasons. The defence evidence which had been discussed supra throws some light on this aspect. The evidence of PW-1 also can be looked into to some extent for the purpose of appreciating this aspect. The learned Judge expressed a doubt relating to Ex.P-9 but however in the considered opinion of this Court Exs.P-1 to P-11 cannot be doubted and the contents of Ex.P-9 also cannot be doubted for the reason that the police seized the same under the cover of Ex.P-6 report. Though PW-3 and PW-4 deny these letters to be in the hand-writing of the first deceased in Court, in Section 161 Cr.P.C. statements which had been recorded by PW-9, PW-3 and PW-4 admitted the same to be in the hand-writing of the first deceased, their daughter, marked as Ex.D-5 and D-6 referred to supra. The relevant portion of Ex.P-6 observation report which had been referred to supra also would establish the same. Thus there cannot be any doubt that Ex.P-9, one of the death notes, also is in the hand-writing of the first deceased, wherein she specifically recorded owning the responsibility to herself to leave the world. Reasons for leaving the world may be numerous and always necessarily need not be due to the harassment by husband for monetary gain attracting the ingredients of dowry death. The conduct the accused also need not be suspected and it is needless to say that the evidence of PW-10 also is only interested testimony, being a close relative of the first deceased who had given some improved version and in the light of fact that the accused himself gave report to police. It is pertinent to note that regard to women in a traditional country has been at the top from the ancient times despite the ills in the society and despite the transformation of the society into so-called modernization. It is difficult to lay down human standards in such cases and each case may have to be judged on the facts and circumstances of a given case. The object of introducing the provisions of Sections 304-B and 498-A I.P.C. also may have to be kept in mind in the interest of the society at large and to minimize or at least to put a check on the social evils, but under the guise of enforcing the object of checking the social evils, innocent or persons against whom prosecution failed to establish the guilt beyond all reasonable doubt cannot be thrown inside giving a go-bye to the well settled principles of criminal jurisprudence. In the light of the material available on record and also the findings recorded in detail this Court is of the considered opinion that on some strong suspicion the learned Judge had arrived at a conclusion that the death should have been due to harassment and there is nexus in between the death and the alleged harassment and ultimately convicted the appellant/accused for dowry death. The said findings are not based on legally acceptable evidence and at any rate the appellant/accused is entitled to benefit of doubt in the facts and circumstances explained supra. Accordingly the findings recorded by the learned Judge are hereby set aside and acquittal is hereby recorded.
32. The Criminal Appeal is allowed. The bail bonds of the appellant/accused shall stand cancelled.