Partly allowed

Vantaku Koteswara Rao, Visakhapatnam and Ano v. P.P., Hyd

Andhra Pradesh HC2 Nov 2022CRLA/232/2015

Case brief

AI extract

What is this about?

Cris521gB Criminal Appeal against conviction under Section 304-B and 498-A IPC for dowry death. High Court affirmed trial court's finding of guilt based on post-mortem report and corroborated testimony regarding dowry harassment, reducing life sentence for one accused to ten years.

What did the court decide?

Appeal dismissed; conviction confirmed; life sentence reduced to ten years for one appellant; sentence for other appellant confirmed.

Vantaku Koteswara Rao, Visakhapatnam and Ano Vs… — Domestic Violence | Andhra Pradesh HC (2022)

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THE HON’BLE SRI JUSTICE C. PRAVEEN KUMAR

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AND

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THE HON’BLE SRI JUSTICE B.V.L.N. CHAKRAVARTHI

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CRIMINAL APPEAL No.232 of 2015

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JUDGMENT : (Per Hon’ble Sri Justice C. Praveen Kumar)

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Accused 1 & 2 in Sessions Case No.95 of 2013 on the file of learned VII Additional Sessions Judge (FTC), Visakhapatnam are the appellants herein. Originally, they were tried for the offences punishable under Section 304-B of Indian Penal Code, 1860 [for short, “I.P.C.] or alternatively under Section 302 r/w. Section 34 I.P.C and Section 498-A I.P.C.

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By its judgment, dated 28.10.2014, the learned Sessions Judge convicted both the accused under Section 304-B I.P.C and sentenced each one of them to suffer Imprisonment for life for the offence punishable under Section 304-B I.P.C. Further, both the accused were convicted for the offence punishable under Section 498-A r/w.34 I.P.C. and sentenced them to suffer Rigorous Imprisonment for a period of two (2) years and to pay fine

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of Rs.5000/- each in default to suffer Simple Imprisonment for six (6) months each. The substantive sentences were directed to run concurrently.

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The gravamen of the charge against the accused is that on 15.07.2012 at about 5.30 or 6.00 hours in the house of A.2 at Bathivanipalem Village, the accused caused the death of the deceased, within seven (7) years of the marriage, as she failed to fulfil the demand for additional dowry.

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The facts, as culled out from the evidence of the prosecution witnesses, is as under:-

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(a) P.W.1 is the brother, while P.W.2 is the junior

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paternal uncle of the deceased. P.Ws.3, 4 and 6 are residents of the same village. A.2 herein is the mother of A.1. P.W.6 also happens to be a relative of the deceased. As A.2 was searching for alliance to A.1, P.W.6 proposed the name of the deceased. After seeing the deceased, A.1 and A.2 conveyed their consent. Later, A.2 informed P.W.6 that they want a sum of Rs.3,00,000/- as dowry, one bike and three tulas of gold. The same was informed by P.W.6

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to P.W.1, who in turn informed that they are prepared to give an amount of Rs.2,50,000/-, one bike and two tulas of gold. When the same was informed to A.2, she requested for a meeting to be arranged in the house of P.W.1 and accordingly, the same was arranged. During negotiations, A.2 is said to have demanded Ac.1.00 cents of land towards dowry instead of Rs.2,50,000/- cash, but, P.W.1 offered Ac.0.70 cents of land, which was refused by A.2. Later, P.W.1 agreed to give Ac.1.00 cents of land towards dowry, Rs.60,000/- towards bike and two tulas of gold to the accused. Both the parties agreed for the marriage, which was performed on 25.02.2011 at Bathivanipalem Village.

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(b) It is further stated that few days prior to the marriage, P.W.1 gave an undertaking with regard to giving Ac.1.00 cents of land and payment of cash to the village elder Bathi Ramana [not examined], who in turn handed over the same to A.1 at the time of marriage. However, two tulas of gold was given. After marriage, the deceased joined A.1 at the matrimonial home. Because of some differences with regard to payment of dowry, A.2 did not permit the deceased to visit their house to join A.1 and that

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A.2 used to make nasty comments for arranging such alliance. Later, the deceased joined A.1. According to P.W.6, the deceased used to express her dissatisfaction saying that her In-laws were ill-treating her badly and scolded P.W.6 for such alliance.

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(c) While things stood thus, A.1 and the deceased shifted their residence to Visakhapatnam. However, the deceased was keeping in touch on phone with P.W.6 who was informed about the harassment of dowry by the accused. It is said that A.1 was having Mineral Water business in Visakhapatnam at Akkayapalem and four months after marriage, A.1 took a rented house at Tatichetlavanipalem and shifted his family. The evidence on record show that after marriage, the deceased used to inform P.W.1 and her family members about the harassment by A.1 and A.2 for additional dowry. But, however, they advised her to bear the same.

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(d) It is said that in the year 2012, the deceased came to the house of P.W.1 for Sankranthi Festival and informed them about the harassment by A.1, A.2 and her sister-in-

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law, for additional dowry, and refused to go back to her matrimonial house. However, at the instance of elders, the deceased went back to her In-laws house and joined A.1. A month thereafter, the deceased again telephoned to P.W.1 and informed about A.1 and A.2 harassing her for a Refrigerator and cash as additional dowry. Then, P.W.1 mortgaged the land with one Muvvuluri China Jagannadham and gave Rs.30,000/- and Rs.7000/- for purchase of Refrigerator to A.1.

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(e) About 20 days thereafter P.W.1 and other family members went to their grandfather’s house at Vasadhi, to attend a function and at that place they were informed by the neighbour of the deceased [P.W.3] that the deceased died. Immediately, P.W.1 along with family members reached the house of the accused and found the body of the deceased under one tamarind tree, situated at a distance of 50 mts. from the house of A.2. It is said that A.1 and A.2 tried to shift the dead body to a burial ground for cremation, to which, P.W.1 and others objected. In spite of the same, the accused proceeded towards burial ground. At that point of time, the family members of the

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deceased noticed blood on the left hand and white froth in the nose and mouth.

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(e) Suspecting foul play, the law was set into motion by lodging Ex.P1 report on 15.07.2012 at 2.00 p.m. before P.W.13-Sub-Inspector of Police, who registered it as a case in Crime No.32 of 2012 under Section 304-B I.P.C and issued Ex.P15-F.I.R against three accused. Further investigation in this case was taken up by P.W.15-Sub Divisional Police Officer, who on receipt of a copy of F.I.R. proceeded to the scene of offence and prepared a rough sketch of the scene which is marked as Ex.P17 and also prepared an observation report of the scene of offence marked as Ex.P10. He also sent a request to P.W.10Tahsildar, for holding inquest over the dead body of the deceased, who held it in the burial ground. At the time of inquest, they noticed pasting of Turmeric and Kumkuma on the face of the deceased. Ex.P11 is the inquest report. During inquest, P.Ws.1, 3 and 4 and others were examined.

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(f) After completing the inquest proceedings, the dead

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body was sent to P.W.12 for conducting autopsy over the dead body of the deceased. P.W.12, who was working as Civil Assistant Surgeon at Chodavaram conducted autopsy over the dead body and issued Ex.P12-Preliminary Post Mortem Certificate. The cause of death as per the report was due to abrupt cessation of vital function i.e. cardio respiratory arrest due to throttling of the neck. The Post Mortem Doctor noticed five external injuries and ten internal injuries on the body. P.W.15, who continued with the investigation, altered the section of law basing on the Preliminary Post Mortem Certificate on 17.07.2012 and basing on the altered report arrested A.1 and A.2 on 18.07.2012.

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After examining all the witnesses and collecting the necessary documents, a Charge Sheet came to be filed, which is taken on file as P.R.C.No.27 of 2012 on the file of Judicial Magistrate of First Class, Chodavaram.

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On appearance of the accused, copies of the documents, as required under Section 207 Cr.P.C. were

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supplied to them. As the offence is triable by Court of Sessions, the case was committed to the Court of the Sessions under Section 209 Cr.P.C. Accordingly, the same was made over to the Court of the learned VII Additional Sessions Judge (FTC), Visakhapatnam for trial and disposal in accordance with law.

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Basing on the material available on record, charges, as referred to earlier, came to be framed, read over and explained to the accused in Telugu, to which, they pleaded not guilty and claimed to be tried.

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To substantiate its case, the prosecution examined P.Ws.1 to 15 and got marked Exs.P1 to P17 and M.Os.1 to 8.

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After the closure of Prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of the prosecution witnesses to which they denied. However, they did not adduce any evidence except marking Exs.D1 to D6 in support of their plea. Relying upon the evidence of P.Ws.1, 3 to 6 and 8, learned

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Sessions Judge convicted the accused for the offences punishable under Section 304-B and Section 498-A r/w.34 I.P.C. Challenging the same, the present appeal came to be filed.

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Smt. A. Gayathri Reddy, learned counsel for the appellants would contend that the evidence on record does not establish that the accused have committed the offence punishable under Section 304-B I.P.C. In other words, her argument appears to be that the ingredients constituting the offence punishable under Section 304-B I.P.C. are not proved. It is further urged in the absence of any eye witnesses to the incident and as P.Ws.3 to 5 are highly interested witnesses, it is not safe to rely upon their evidence, more so, when P.W.4 has not supported the case of the prosecution. It is further urged that there is enough material to show that A.2 was residing elsewhere and at no point of time she resided with A.1, and as such, her complicity in the said crime has not been established. In so far as the payment of dowry is concerned, it is urged that there is no documentary evidence in support of the same. Having regard to all the above circumstances, learned

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counsel would contend that the trial Court erred in

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convicting the accused under Section 304-B I.P.C.

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On the other hand, Sri S. Dushyanth Reddy, learned Additional Public Prosecutor, for the State would submit that the findings given by the trial Court coupled with the evidence on record establish beyond reasonable doubt the ingredients constituting the offence punishable under Section 304-B I.P.C. He took us through the entire evidence on record and the findings recorded by the learned Sessions Judge in support of his plea.

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The point that arises for consideration is, whether

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the prosecution has proved its case for the offences punishable under Section 304-B and Section 498-A r/w. Section 34 I.P.C. beyond reasonable doubt?

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The learned counsel for the appellants states across the bar that pending appeal, A.2 has been released on bail by granting remission.

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To deal with the issues raised, it would be just and proper to extract Section 304-B I.P.C, which reads as under:-

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Sec.304-B I.P.C – Dowry death:

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(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.

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(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.

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A reading of the above provision would show that if the death occurs otherwise than under normal circumstances, within seven years of her marriage and if there was a demand for dowry for, or in connection with the marriage soon before her death, a presumption under Section 113-B of Indian Evidence Act, 1872 shall be invoked to convict the accused.

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It is now to be seen whether the prosecution has proved the ingredients constituting the offences punishable under Section 304-B, 498-A r/w.34 I.P.C?

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The fact that death took place within the seven years of marriage is not in dispute. The fact that the death took place in the house of In-laws of the deceased is also not in dispute.

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The question now is, whether there was any harassment for or in connection with the dowry soon before her death?

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The prosecution mainly relied upon the evidence of P.Ws.1, 2, 6 and 7 to prove that there was harassment for her in connection with the dowry, soon before the death of the deceased. It is to be noted here that the marriage of the deceased with accused took place on 25.02.2011 and the death took place on 15.07.2012 within one and half year from the date of marriage.

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P.W.1 in his evidence deposed that prior to marriage of the deceased, it was decided that a sum of Rs.2,50,000/shall be paid as dowry and also to present a motor cycle and two tulas of gold to A.1. But, as the amount of Rs.2,50,000/cannot be adjusted, an amount of Rs.1,00,000/- was paid by way of cash and Ac.1.00 cents

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of land was agreed to be given, to which, an agreement of undertaking was given to A.1 at the time of marriage. Besides that cash of Rs.60,000/- was also given to A.1 for purchase of motor cycle. After the marriage, the deceased went to her matrimonial house in Bathivanipalem Village and stayed there for about four months. Later, A.1 took the deceased to Tatichetlavanipalem Village and shifted his family. The evidence of P.W.1 also shows that the deceased used to inform her and her mother about the harassment in hands of A.1 and A.2 for additional dowry. They used to console her and advise her to adjust. When the deceased came for Sankranthi Festival in the year 2012, she again complained to them about the harassment by A.1 and A.2, for not meeting the additional demand. A month thereafter, the deceased again telephoned to P.W.1 and her mother, informing the harassment by A.1 and A.2, demanding Refrigerator and cash as additional dowry. At that point of time, the land belonging to them was mortgaged with one Muvvuluri China Jagannadham, and a sum of Rs.37,000/- cash was given to A.1. Thereafter, the incident in question took place in the month of July, 2012.

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Though, P.W.1 was cross-examined at length, nothing incriminating came to be elicited to discredit his testimony. All the suggestions given with regard to payment of Rs.2,50,000/- etc. were denied.

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On the other hand, it has been elicited that P.W.1 borrowed the amount from their cousin sister for the payments made towards the demand. It was further elicited that about three or four days prior to the marriage, an agreement of undertaking was drafted and the same was handed over to A.1, at the time of marriage, in the marriage pendal. It was further admitted that in the rented house at Thatichetlavanipalem, the deceased and A.1 alone were residing, but A.2 and other family members

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were residing at Bathivanipalem Village. From the evidence of this witness, it appears that A.2 was residing separately at Bathivanipalem Village, but the incident in question took place in the house of A.2, which is not in dispute.

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The evidence of P.W.1, which we have referred to

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above gets corroboration on all material aspects from the evidence of P.Ws.2, 6 and 7, the same is as under:-

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“ P.W.2 : I am resident of Konda Gangapudi Village and doing cultivation. Presently I am the Sarpanch of K.G. Pudi Village. I am the Junior Paternal Uncle of the deceased. My grandfather and that of deceased are brothers. One day i.e. during rainy season of 2012, while I was in our village K.G. Pudi, one Chella Suryanarayana my cousin brother at about 8.00 a.m. in the morning came to me and informed that he received a message that the deceased died. Immediately all our family members and others in our village reached Bathivanipalem village. By that time all the formalities like giving bath to the dead body etc., were completed and placed the dead body. Thereafter my family members observed a laceration on the hand of deceased and also observed the swelling of neck and bleeding from the nostrils and informed same to me. There upon I went near to the dead body and observed the same. Then we suspected the death of deceased and obstructed A.1 and his family members from cremating the dead body. The deceased and A.1 led conjugal life for about 13 months. To my knowledge during that period the deceased and A.1 led happy marital life for about five months. Thereafter P.W.1 came and informed that there are differences in between the deceased and A.1 on which I advised him not to interfere with the same as the said differences will be wiped off in due course. Some time thereafter again P.W.1 informed me that the deceased complained to him and his mother that same differences are in existence. On which I advised him not to place the said disputes before the elders for the sake of

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family reputation and further advised him to advise the deceased to adjust with A.1. When I met A.1 twice I advised him to look after the deceased well since she is too young and the differences will be wiped off in due course. On receipt of the complaint submitted by P.W.1 the concerned police and the MRO examined me and recorded my respective statements during panchanama. The photographs 5 in number confronted before me are depicting the deceased and the same are marked as Exs.P2 to P6. As per the Police report A.1 and A.2 are responsible for the death of the deceased.”

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“ P.W.6: I am resident of Bathivanipalem village and working as Anganivadi worker. The deceased was the daughter of my maternal uncle. A.2 being resident of my village, requested me for good alliance for his son A.1. Then I proposed the deceased. After seeing the deceased A.1 and A.2 conveyed their consent as they liked the deceased. Later, A.2 informed me that they want Rs.3,00,000/- dowry, one bike and three tulas of gold. In turn I informed the said demands to P.W.1 who in turn informed that he is prepared to give Rs.2,50,000/-, one bike and two tulas of gold. In turn I informed the same to A.2 who asked me to arrange a meeting in the house of P.W.1. Accordingly, I arranged the same. During negotiations A.2 demanded Ac.1.00 cents of land towards dowry instead of Rs.2,50,000/- cash. But, P.W.1 offered Ac.0.70 cents of land. But, A.2 refused said offer. Then, P.W.1 agreed to give Ac.1.00 cents of land towards dowry instead of cash of Rs.2,50,000/-, Rs.60,000/- towards bike and two tulas of gold and accordingly the negotiations gained fruitful results as A.2 agreed for the said offer. Thereafter the both parties fixed marriage Muhartham. Later, A.2 stopped informed me

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anything about the subsequent events. The marriage of deceased and A.1 was performed on 25.02.2011 in Bathivanipalem Village. Few days prior to the marriage P.W.1 handed over the undertaking agreement relating to agreed Ac.1.00 cents land and also Rs.60,000/- cash to the village elder Bathi Ramana who in turn handed over the same to A.1 during marriage in the marriage pendal in our presence. Apart from this the agreed two tulas of gold was also handed over to A.1 at the same time through Purohit. After marriage the deceased joined A.1 at her matrimonial house at Bathivanipalem Village. But, A.2 did not permit the deceased to visit our house. I came to know that some differences arose in between A.2’s family and deceased family with regard to the dowry amount and that A.2 used to make comments in a circastic manner against me. I am working as a helper in Anganvadi School. One drinking water bore is situated near the said school. The deceased used to come to said bore for the purpose of drinking water now and then. At that time I used to enquire her as to how is her marital life. Then she used to express her dissatisfaction saying that their In-law’s are ill treating her and used to scold me for such an alliance arranged by me. In turn I used to advise her to adjust with the situation as it is common. Thereafter the deceased and A.1 shifted to Visakhapatnam and ever since I did not visit her or vice versa. But the deceased used to call me over phone and informed that A.1 though appears to be a gentleman but used to harass her and further informed that she informed the same to P.W.1. At about 8.00 p.m. in the night on 14.07.2012 a galata was occurred in our street saying that some thieves entered and as such I along with other villagers were awaken. Thereafter at about 10.30 or 11.00 p.m. in the same night I observed A.1 and the deceased

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were coming on his motor bike. But I did not have a talk with them. On the next day morning in the early hours at about 5.30 a.m., I came to know that the deceased was not responding and was unconscious. Then along with others I visited the house of A.2 and observed the deceased unconscious protruding her tongue from out of her mouth. Then thinking that the deceased was alive the people who gathered there tried to make the deceased to drink water. In the meanwhile, A.2 came there and gave blows on the heart of the deceased and so also A.1 gave blows using pressure. Then I questioned them as to why they are using such high pressure. On which they told us that following the advice of the doctor they are doing so. Some people who gathered there though that the deceased was alive as she was taking breath. Ultimately, the deceased was taken to the hospital K. Kotapadu in an auto. I followed the said auto on a bike along with my brother and observed one staff nurse examined the deceased and tried to give saline but the same was not injected and accordingly they declared the deceased as dead. Thereafter the dead body of the deceased was brought to our village in the same auto. I tried to inform about the death of the deceased to P.W.1 over phone but my efforts ended in vain. The family members of A.1 informed about the death of the deceased to P.W.1. A.2 and her family members completed the customary formalities to the dead body of the deceased like pasting turmeric and putting kumkuma on the face of the deceased prior to arrival of P.W.1 and his other family members. I suspected the death of the deceased but I kept silent as the village elders were present at that time. The dead body of the deceased was kept in the burial ground throughout the night of 15/07/2012 and was taken to P.W.1’s village on

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the next day evening. I was examined by Police and the Police recorded my statement.”

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“ P.W.7: I am resident of Sitharamapuram and doing cultivation. I know P.W.1 and L.W.2 Chella Chinnammalu since my thrashing floor and their thrashing floor are situated at a same place. About two years back P.W.1 requested me money on which I obliged for the same on the mortgage of his land. When I questioned him as to why he requires money P.W.1 informed that he has to give money to the deceased and A.1. Accordingly P.W.1 mortgaged Ac.0.40 cents of his land on which I gave Rs.30,000/- to him. In pursuance of said transaction P.W.1 executed a mortgage deed in my favour. I handed over the Xerox copy of deed to Police for investigation purpose in this case during my examination by them. The Xerox copy of said mortgage deed dated 04.05.2012 is marked as Ex.P9 (subject to objection). Ex.P9 was executed in the presence of attesting witnesses namely Gollu Yerranna and Manguluru Satyanarayana mentioned therein.”

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The evidence of P.Ws.1, 2 and 6 gets corroboration from the evidence of P.W.7, who categorically deposed that about two years back, P.W.1 requested him to lend money, to which he obliged on mortgage of his land. When he questioned as to why he is in need of money, P.W.1 informed that he has to give the same to A.1. According to him, P.W.1 mortgaged Ac.0.40 cents of his land, on which he gave Rs.30,000/- to him. The Xerox copy of said

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mortgage deed dated 04.05.2012 is marked as Ex.P9. The evidence of P.Ws.1, 2 and 6 not only establish that the death took place within seven years of their marriage, but also harassment for dowry soon before her death. Though, all these witnesses were cross-examined nothing useful came to be elicited to discredit their testimony. All the suggestions given disputing the payments received and harassment caused were denied. It is also well established that the word soon before her death is an elastic term and there cannot be any rigid framework for fixing the time limit of harassment so as to invoke Section 113-B of Indian Evidence Act.

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Further, from the evidence of Post Mortem report, it is very clear that the deceased died under suspicious circumstances in the house of the accused, to which, there is no explanation from the accused. Neither they explained the cause of the death in Section 313 Cr.P.C examination nor adduced any evidence in support of their case. Except denial, nothing has been stated in Section 313 Cr.P.C. examination. When the death took place in the house of the accused and that too in the presence of A.1 and A.2

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and having regard to the suspicious circumstances under which the deceased died, the findings of the trial Court for the offences punishable under Section 304-B and Section 498-A r/w. Section 34 I.P.C. invoking section 113-B of Evidence Act, 1872 warrants no interference.

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For all the aforesaid reasons, we hold that the prosecution was able to bring home the guilt of the accused beyond reasonable doubt.

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In the result, the appeal fails and it is accordingly dismissed, confirming the conviction and sentence recorded against the appellant/A.1 in the judgment, dated 28.10.2014, in Sessions Case No.95 of 2013 on the file of the learned VII Additional Sessions Judge (FTC), Visakhapatnam. However, as observed earlier, it is stated across the bar that A.2 been released by grant of remission i.e. after completion of particular period of sentence in terms of the G.O. issued. In any event while confirming the conviction under Section 304-B I.P.C. the sentence of A.2 is reduced to ten (10) years and the conviction and sentence under Section 498-A I.P.C. is confirmed.

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Consequently, miscellaneous petitions, if any, pending

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shall stand closed.

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_______________________________ JUSTICE C. PRAVEEN KUMAR

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____________________________________ JUSTICE B.V.L.N. CHAKRAVARTHI

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Date: 02.11.2022 MS

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THE HON’BLE SRI JUSTICE C. PRAVEEN KUMAR

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AND

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THE HON’BLE SRI JUSTICE B.V.L.N. CHAKRAVARTHI

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CRIMINAL APPEAL NO.232 OF 2015

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(Per the Hon’ble Sri Justice C. Praveen Kumar)

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DATE: 02.11.2022

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Vantaku Koteswara Rao, Visakhapatnam and Ano v. P.P., Hyd

Case brief

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Vantaku Koteswara Rao, Visakhapatnam and Ano v. P.P., Hyd

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