Court: ANDHRA PRADESH HIGH COURT
Bench: JUSTICE Dalava Subrahmanyam
PENCHALA SADAIAH & ORS. Vs. STATE OF A.P. On 18 July 2003
Prosecution failed to prove cruelty or harassment for not fulfilling demand for additional dowry and failed to prove offence under Section 498A, IPC. Husband not found guilty of offences under Sections 304-B and 498-A, IPC and entitled for acquittal.
The appeallant-accused filed the appeal against the judgment of conviction and sentence in SC 6 of 1996 on the file of the II Additional District & Sessions Judge, Karimnagar in convicting the appellant-accused and sentencing them to suffer R.I. for seven years each for the offence under Section 304-B, IPC and three years and to pay a fine of Rs. 5000/- each and in default to suffer S.I. for six months each for the offence under Section 498-A, IPC and both the sentences to run concurrently.
2. The brief facts of the case are as follows :
The marriage between the deceased Penchala Padma and Penchala Sadaiah was performed on 8.12.1993 at Godavarikhani and at the time of the marriage, a sum of Rs. 60,000/- in cash and other household articles were given towards dowry and the marriage was performed. Subsequently, at the instigation of his parents, who are A2 and A3, the first accused harassed the deceased to bring some more money for purchase of colour Television and Almirah which led the deceased to commit suicide on 1.8.1994. It is further alleged that the accused killed the deceased by squeezing her neck and poured poison into her mouth. On behalf of the prosecution P.Ws. 1 to 10 were examined and Exs. P1 to P7 were marked. After appreciating the entire evidence, the learned II Additional District & Sessions Judge, Karimnagar came to the conclusion that the prosecution proved the offences under Sections 304-B and 498-A, IPC and accordingly they were convicted and sentenced.
3. Aggrieved against the judgment of conviction and sentence, the appellant-accused filed the appeal contending that the judgment of conviction and sentence of the lower Court is contrary to law and probabilities of case. The Trial Court committed error in believing the story of the prosecution and erred in holding that the appellants are guilty of the offence under Sections 498-A and 304-B, IPC. The Trial Court failed to appreciate that the prosecution failed to produce the alleged letters written by the deceased and the evidence of the prosecution witness is contradictory and not reliable. The lower Court ought to have seen that the prosecution failed to prove the ingredients of Sections 304-B and 498-A, IPC. The lower Court erred in believing the version of the prosecution witnesses drawing presumption under Section 113-A of the Evidence Act (for short ‘the Act’). For the above said reasons, the judgment of conviction and sentence may be set aside.
4. Now the point for consideration is whether the II Additional District & Sessions Judge, Karimnagar committed error in coming to the conclusion that the prosecution proved the offences under Sections 304-B and 498-A, IPC and if so whether the appeal is liable to be allowed?
5. The father of the deceased Kosna Rayamallu, who gave report to the police soon after the incident, is examined as P.W. 1 and the report is marked as Ex. P1. Kosna Radha is the wife of P.W. 1 and Kosna Sammaiah is the brother of P.W.1. P.Ws. 1 to 3 deposed with regard to the demand for additional dowry and the harassment meted out to the deceased which led to her death. P.Ws. 4 and 6 are the neighbours. P.W. 7 is the Medical Officer who conducted post-mortem examination over the dead body of the deceased. P.W. 8 is Mandal Revenue Officer who held inquest over the dead body of the deceased. P.Ws. 9 and 10 are the Investigating Officers. Another neighbour of the accused is examined as D.W.1 who deposed that the deceased was not harassed and the deceased and A1 were living happily. It is in the evidence of P.W. 1 that A1 to A3 killed the deceased by squeezing her neck and poured pesticide into her mouth.
6. The learned Advocate appearing for the appellant-accused argued that there is absolutely no evidence with regard to cruelty or harassment of the deceased. The evidence of P.Ws. 1 to 3, 4 and 6 is contradictory and their evidence cannot be relied. The prosecution has not proved the ingredients of Sections 304-B and 498-A; IPC. The learned Advocate relied on decision in Basappa Dattu Hegade v. State of Karnataka, II (1994) DMC 653=1994 (2) ALT (Cr.) 678, wherein it was held that presumption under Section 113-A of the Evidence Act could be invoked only when the prosecution has discharged the initial onus of proving that the appellant has subjected the deceased to cruelty. Only after the prosecution descharges this initial onus, the Court may presume that such suicide had been abetted by the appellant having regard to the other circumstances. It is also further contended that unless cruelty and harassment is proved, the offence under Section 498-A, IPC is not made out as decided in H. Shankar v. State of Andhra Pradesh, 1994 (3) Crimes 605.
7. The learned Public Prosecutor contended that the prosecution is able to prove the cruelty and harassment meted out to the deceased through the evidence of P.Ws. 1 to 3, 4 and 6, which is corroborated by the medical evidence. The inquest Panchayathdars opined that the death of the deceased was due to harassment of the accused. The evidence of the prosecution witnesses is cogent and convincing and the prosecution proved every link of its case and the lower Court considered all these factors and rightly convicted the accused.
8. The appellant-accused are convicted for the offences under Sections 304-B and 498-A, IPC. Cruelty as defined under Section 498-A means any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health whether mental or physical, of the woman or the harassment of the woman where such harassment is with a view to coercing her, or any person relating to her, to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such damand. It is not every harssment or every type of cruelty that would attract Section 498-A, IPC. The cruelty must be of such nature so as to coerce the wife to meet the illegal demands or commit suicide. The evidence of demand and ill-treatment must be cogent and reliable. There must be reasonable nexus between the cruelty and suicide, which must be established. Mere proof of cruelty or suicide is not enough so as to conclude the ingredients of cruelty. Proof beyond reasonable doubt is not altered by the introduction of Section 498-A, IPC and Section 113-A of the Evidence Act. How far the prosecution is able to prove the element of cruelty and harassment in this case is to be seen.
9. There is contradictory evidence with regard to the fact as to when the demand for additional dowry was made. Ex. P1 is the complaint given by the de facto complainant which is the earliest version in which P.W. 1 stated that right from next day of the marriage, the deceased was forced by her parents-in-law and her husband to bring Rs. 20,000/- more dowry. The scribe of Ex. P1 is not known and P.W. 1 who gave report to the police stated that he could not remember the name of the scribe and further stated that Ex. P1 was not read over to him after it was written by the scribe. It is in the evidence of P.W. 1 that five months after the mariage, A1 demanded additional dowry and one Almirah. In the cross-examination, P.W. 1 stated that for the first time A1 demanded additional dowry of Rs. 20,000/- after 7 or 8 months of the marriage. P.Ws. 2 and 3 deposed that the demand for additional dowry was made only four month after the marriage. Thus, there are conflicting versions with regard to the demand for additional dowry. As per Ex. P1, Al demanded additional dowry from next day of the marriage whereas the oral evidence of P.Ws. 1 to 3 is that for about four or five months they lived happily and thereafter additional dowry was demanded by A1. Except stating that A1 demanded additional dowry there is no evidence that he harassed the deceased for not bringing additional dowry. No cruel treatment was alleged by any of the prosecution witnesses. Thus, the prosecution failed to prove the cruelty or harassment for not fulfilling the demand for additional dowry and thus failed to prove the offence under Section 498-A, IPC and the lower Court erred in drawing presumption under Section 113-A of the Evidence Act as decided in Basappa Dattu Hegade’s case since the presumption under Section 113 of the Evidence Act could be invoked only when the prosecution has discharged the initial onus of proof that the appellants subjected the deceased to cruelty. The Trial Court failed to take note of this fact and erred in applying the presumption under Section 113-A of the Act and, therefore, the conviction of the accused under Section 498-A IPC is not maintainable and the same is liable to be set aside.
10. So far as the offence under Section 304-B, IPC is concerned, it is the oral evidence of P.Ws. 1 to 3 that the accused killed her by squeezing her neck. It is in the evidence of P.W. 1 that he suspected that the deceased was murdered by pressing her throat and subsequently pesticide or insecticide was poured into her mouth to make it appear as though it was a suicide. P.Ws. 2 and 3 also deposed that they killed the deceased by pressing her throat and pouring insecticide into her mouth. It is only a development made by P.Ws. 1 to 3 at the time of giving evidence. In Ex.P1 report, it is alleged that all the accused according to plan made the deceased consume pesticide and they killed her. The allegation that all the accused pressed her throat and killed her and subsequently poured some pesticide or insecticide into her mouth is only a later development. The Medical Officer who conducted post-mortem examination over the dead body of the deceased did not find any external injuries, but the stomach contents and the lever contained insecticide poison suggesting that the deceased died due to poisoning. It is not known whether the deceased herself consumed pesticide or insecticide or the same was poured into her mouth after her death. The patient died in the hospital while undergoing treatment. Her statement was not recorded and it is not known for how many hours she was alive after her admission in the hospital and whether she was fit to give any statement. Further, the prosecution failed to prove whether it was a homicide or suicide. Though P.Ws. 1 to 3 deposed that the deceased said to have written letters but the same could not be produced by the prosecution since P.W. 1 stated that he torn all those letters. No presumption can be drawn when the letters are not produced before the Court. For the above said reasons, the lower Court committed error in coming to the conclusion that the prosecution proved the offence under Section 304-B, IPC. Under the circumstances, all the accused are found not guilty of the offences under Sections 498-A and 304-B, IPC and they are entitled for acquital. Thus, I answer the point accordingly.
11. In the result, the appeal is allowed and the conviction and sentence for the offences under Sections 304-B and 398-A, IPC are set aside and they are found not guilty of the said offences and they are acquitted and the appellants are entitled for refund of the fine amount paid by them in the lower Court.
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