Allowed

Mohd. Abdul Arif v. The State of Telangana

Telangana HC9 Jan 2020CRLP/36/2020

Case brief

AI extract

What is this about?

Dowry death, cruelty and dowry-demand convictions were challenged for want of reliable proof. The court allowed the appeal, set aside the convictions and sentences, and acquitted the husband on benefit of doubt, directing immediate release unless required in another case and refund of any fine paid.

What did the court decide?

Convictions and sentences set aside; appellant acquitted and directed to be released forthwith unless required in another case; any fine paid to be refunded.

Mohd. Abdul Arif Vs The State of Telangana — Dowry and Cruelty | Telangana HC (2020)

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\ -4"1^</sup>

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rN rHE^{HIGH couRT FoRrlFffiJtoF TELANGANA}

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THURSDAY.^{THE TWENTY SECOND DAY.OJ APRIL} TWO THOUSAND^{AND TWENTYONE}

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PRESENT

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THE HONOURABLE^{JUSTICEG. SRI DEVI}

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CRIM^{INALAPPEALNOI360 F 2020}

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Criminal^{Appeal filedUnderSection 374 (2) of codeof Criminal Procedure} aggrieved by^{the Judgmentdated' 3O-12'2O1gpassedin S C'No'178 of 2016 on the} file of Judge,^{FamilyCourt.Cum.VlAdditional Districtand Sessions Judge,} Nalgonda.

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Between:

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BodduDallv Venkanna,^{s/o sattaiah. aged about26 years,occ currentHelper,} ilio kirTadar,ro^{Village, Kethepallv Mandal Nalgonda District'}

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AppellanUAccused^No.1

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AND

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The State of Telangana,^{represented by its Public Prosecutor,High Coud' at} Hyderabad.

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...ResPondent

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lA NO: 1 OF 20 20

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Application under Section 3Sg⁽¹⁾ Cr.P.C.^{prayingthat in the circumstances} stated in the application, the High Court may be^{pleasedto suspendthe judgment} dated 30-12-2019 passed in S.C.No.178 of 2016 on the file of Judge,^{Family Court-} cum-Vl Additional District and Sessions Judge, Nalgonda by^granting bail to the petrtioner, pending disposal of the main revision in the interest of^justice.

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Counsel for the Appellant: SRI G. JAYA REDDY

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Counsel forthe Respondent: PUBLIC PROSECUTOR

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The Court delivered the following: JUDGMENT

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HONOURABLE IUSTICE G.SRI DEVI

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CRIIyIIN AL APP EAL No. 36 of 2020

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IUDGMENT:

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Accused No.1, in Sessions Case No.l7g of 2076 on the file of the Judge, Family Court-cum-VI-Aclditionar District and sessions Judge,^Nalgonda, is the appellant herein. l-le along w.ith two others, were charged for the offences punishable under Section s 49g_A, 302, 304-8 of I.P.C. and Sections 3 ancl 4 of the Dowry prohibition Act, 1961,. By its judgment, dated 30.12.2019, rhe learned rrial Judge while acquitting A-2 and A-3 for the offences punishable under Sections 498-A, 304-8 of I.P.C. and Sections 3 and 4 of the Dowry Prohibition Act, 1961. and A-1 for the offence punishable under Section 302 of LP.C., convicted A-1 for the offences punishable under Sections 304-8, 498-A of. I.P.C. and Section 4 of the Dowry Prohibition Act, 1961" and sentenced him to suffer rigorous imprisonment for seven years for the offence punishable under Section 304-8 of l.P.C. and to suffer rigorous^{imprisonment for two} years and to pay a^f ine of Rs.2,000/^{-, in default,to suffersimple} imprisonment for tr.r'o months,^{for the offerrce pur-rishable under} Section 498-4 of I.P.C.^{and also to suffer ligorous imprisonmentfor} one year and to^{pay a fine of Rs.2,000/- in default, to suffersimple} imprisonment for two^{months, for the offence} Punishable^under section 4 of the Dowry^{ProhibitionAct, 1961. All the sentenceswere} directed to be run concurrentlY.

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The case of the prosecution, according to the eviclence let in during the course of trial, is that one Ashwini (hereinafter referred to as "the deceased") was the elder daughter of p.W.1-Mididocidi Ramachandru and she was given in marriage to A_1 three years prior to the date of offence. At the time of marriage, p.W.1 presented cash of Rs.4.00 lakhs, 5 1/z tulas of gold ornaments and other household arlicles. Immediately after the marriage, the deceased was taken to the house of the accused and there, A_1 and the deceased lived happily for four months and thereafter, A_1 to A-3 started harassing the deceased for additional dowry of Rs.2.00 lakhs and one motorcycle. On the demand made by A_1 to A-3, P.W.1 informed to the deceased and A-1 to A_3 that he will arrange the additional dowry of Rs.2.00 lakhs and motorcycle to A-1 at the time of Sankranthi festival. Three days thereafter, p.W.1 received a pho^e call from the you11ge, brotrrer of A-1 that the deceased fell down from the motorcycle and received injuries ancl she was admitted in Kamineni Hospital, Narketpally and immediately, P.W.1, P.W.2 and P.W.5 went to Kamineni Hospital, Narketpally, but they did not find the deceased in the hospital. The R.M.p. doctor of Korlapahad Village, in{ormed them that the deceased was shifted to the Government Hospital, Nakrekal, then they went there and found the dead body of the deceased with injuries on the right shoulder and cl-rest.

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On 09.11.2013, P.W.1 lodged a report (Ex.P1) with P.W.26-the then Assistant Sub-Inspector of Police. Basing on the said report, P .W .26 registered a case in Crime No.157 of 2013 for the offences punishable under Sections 302 and 498-4 of I.P.C. and issued Ex,P24-First Infomration Report. lle recorclecl the statement of I,W.1 ancl sent the F.I.R. to all the concernecl. Ot-r receipt of the First Information Report, P.W.27-the Inspector of Police, took up investigation and proceeded to the Primary Health Cenhe, Nakrekal, conducted inquest over the dead body of the deceased in the presence of P.Ws.19 to 22. Ex.PL8 is the inquest report. During the inquest, P.W.12 (trained constable) photographed and videographed the dead body and P.W.19 seized M.Os.1 to 4 in the presence of P.Ws.16 ancl 20. Thereafter, P.W.27 proceeded to the scene of offence, preptrrecl a panchanama of the scene of offence in the presence of P.Ws.l7 and 18 anc'l also preparec'l a rough sketch of the scene of offence, r,r,hich are placed on recorc'l as Exs.P26 and P27 He examined and recorded the statements of P.Ws.S and 6 at the scene of offence. Later, the deac'l bodv was sent to Communitv Health Cenke, Nakrekal, where P.W.21 and other team of doctors have conducted postmortern examination over the dead body and issued Ex.P19-the postmortem certificate. After compietion of investigation, PW.27 {iled a charge sheet before the Court of Judicial Maglstrate of First C1ass, Nakrekal) who in turn committed the case to the Sessions Divlsion. On committai, the same came to be numbered as S.C.No.178 of 2018

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r^--'-

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On appearance of the accused, charges under Sections 498-4, 302 and 304-8 I.P.C. and Sections 3 and 4 of the Dowry Prohibition 4ct,1.961,1961 were framed against A-1 and charges under Sections 498-4 and 304-8 of LP.C. and Sections 3 and 4 of the Dowry Prohibition Act, 7961, I.P.C came to be framed against A-2 and A-3, read over and explained to the accused, to which they pleaded not guilty and claimed to be tried.

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In order to prove its case, the prosecution examined PWs.1 to 29 and got marked Exs.P1 to P31 and M.Os.1 to 4. After 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. Neither oral nor documentary evidence was adduced on behalf of the accr-rscd

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On appraisal of the evidence both oral and documentary, the learned trial Judge has convicted A-1 for the aforesaid offences and sentenced him as stated supra, while acquitting A-2 and A-3 for the charges leveled against them. Aggrieved by the said conviction and sentence, the appellant/A-1 preferred the present appeal.

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Learned Counsel for the appellant/ A-L mainly contended that the evidence 1et in by the prosecution does not inspire confidence that the appellant committed the alleged offences. According to her, there is absolutely no evidence against the appellant/A-1, who is the

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husbancl of the deceasecl, anc'l as such tl-re trial Court ought not to have cor-rvicte,-l him for the charges frar-rrtt'l against hirn. Accorcling to the learned Counsel, the alleged offence cloes not satisfy the requirements of Section 304-8 of I.P.C. According to him, the words used in Section 304-8 I.P.C. are that 'soon before her death' the deceased was subjected to cruelty or harassment by her husband or any relative of her husband. In the instant case, according to the learned Counsel, the deceased suffered breathing problem on the alleged date of incident and died while shifting her to the hospitai. Therefore, he contended that the appellant/A-1 is not liable to be convicted under Section 304-8 I.P,C, In respect of the other charge for dowry harassment, she contended that there is no clinching evidence which would establish that there was any physical or mental harassment bv the appellant/ A-1 for clow,ry

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On the contrar,, the ieamecl Assistarrt Public Prosecutor appearing for the responclent/ complainant contended that the evldence on record would clinchingly establish the case against the appeliant and the trial Court was justified 1n convicting and sentenciag the appellant for the charges framed against him. He also points out that according to Section 113-8 of I.P.C. if a woman dies within seven years of her marriage, a presumption under Section 113-8 of I.P.C. has to be drawn and if the events as spoken to by the prosecution witnesses are taken into consideration, it clearly

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satisfies the ingredients^{of Section304-8 of I.P.C. and thus justifies} the conviction and sentence^{imposed by the trial Court.}

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In order to Prove its case,^{the prosecution examinedas many} as 29 witnesses. P.Ws.1^{to 7 ancl 10 are the close relativesof the} deceased. Admittedly,^{tlrere are no eyewitnessesto the alleged} beating of the deceased^{by the appellant/A-1on the alleged date of} inciclent and the entire^{case restson the circumstantial evidence'} P.Ws.1 to 7,9,70, 1,1,73,^{14 and 15 are circumstantialwitnesses'} P.Ws.9 to 10 and 13 to^{15, who were cited as circumstantial} witnesses, did not support^{the case of the prosecution. P.W.8,who} was cited as an eyewihress^{to the incident, did not supportthecase} of the prosecution^{and in her depositionshe categoricallystatedthat} the deceased^{was sufferingfrom breathing problemon the alleged} date of incident and she^{died whileshe wasbeing shiftedto the} hospital.

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P.W.1, who is the^{father of the deceased,deposed in his} eviclence that the^{marriageof the deceasedwas performed with A-1} on 18.05.2013 and at^{the time of marriage,he presented cash of} Rs.4 lakhs,5 % tulas of^{goldornaments and household articles to} A-1 towards dowry.^{He furtherstatedthat after the marriage, the} deceased^joined with^{A-1 and lived happily for four months and} thereafter, A-1 to^{A-3 harassed the deceasedfor additional dowryof} Rs.2 lakhs and one^motorcYcle.

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P.W.2, who is the mother of the c'leceased, deposed that the deceased Aswini is her elcler daughter and her marriage was performed with A-1 and at the time of marriage, they presented cash of Rs.4 lakhs, 51/z tulas of gold ornaments and household articles to A-L towards dowry. She further stated that after the marriage, the deceased joined with A-1 at Korlaphad and lived happily for four months and thereafter, A-1 to A-3 harassed the deceased for additional dowry of Rs.2 lakhs and one motorcycle. The deceased informed her about the demand of dowry by A-1 to A-3 whenever she visitecl her house. She also deposecl that in the year 2013 dur.ing the festival of Deepavali, she went to the house of the deceased and at that time A-1 to A-3 clemanclec'l Rs.2.00 lakhs ancl one motorcycle towards additional dowry, on that she informed the same to P.W.1 after she returned to her house and thereafter P.W.1 informed the deceased and A-1 to A-3 over phone that he will arrange the additional dowry of Rs.2.00 lakhs and motorcycle at the time of Sankranti festival. Three days thereafter, they received a phone call from the younger brother of A-1 that the deceased fell down from the motorcycle and received injuries and asked him to come to Kamineni Hospital, Narketpally. Immediately, she along with her husband and her mother-in-law went to Kamineni Hospital, Narketpally, but they did not find the deceased in the hospital ancl the R.M.P. doctor informed them that the deceased was shifted to Covernment Hospital, Nakrekal ancl then the1, went there and fourrd that the cleceasecl rleatl antl thev noticer'l injuries on the right

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shoulder and chest of the deceased. She^{further deposed that A-1to} A-3 harassed her daughter both^physically and^{mentally and beat} her indiscriminately, due to which the deceased died. The evidence of P.W.3, who is the paternal uncle of the deceased,^{is also} to^the same effect.

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P.W.4, n,ho is the brother o( P.W.Z, deposed that^the marriage of the deceasecl was^{performedwith A-1 on 18.05.2013 and} at the time of rnarriage, P.{.2 presented^{cash of Rs.4.00 lakhs and5} % tulas gold ornarnents to A-1 torvards dowry.^{After the marriage,} the deceased^joined with A-1 at Korlapahad^{and both of themlived} happily for two months. He also deposed^{that two days priorto the} death of the deceased, he received a^{phonecall from P.W.1 and} informed him that A-1 demanded Rs.2.00^{lakhs andone motorcycle} towards additional dowry and three^{days thereafter he receiveda} phone call from P.W.1 that one^{Saidulu informedP'W.1thatthe} deceased was fell down^{from the bike and admitted in Kamineni} Hospital, Narketpally. Immediately,^{he went to Kamineni Hospital,} Narketpallv ancl verifier-l the cleceasetl^{along with P.Ws.1 to 3 and} others, but they did not find the^{cleceased in the hospital.When} they enquired with the said^{B.Saidulu about the deceased,he} informed that the deceased^{wasshiftedto Government Hospital,} Nakrekal and immediately,^{hirnsetf,P.Ws.1to 3 reachedNakrekal} and found the body of^{the deceased in the hospital with bleeding} injuries on the right side shoulder,^{chest and also pressinginjury on}

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the neck of the deceased. He also deposed that A_1 to A_3 were harassed and assaulted the deceased in clemand of additional dowry due to which the deceased diecl.

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P.W.5, who is the grand mother of the deceased, deposed that the marriage of the deceased was performed with A_1 and at the time of marriage, p.W.1 presented cash of Rs.4.00 lakhs and 5 % tulas of gold ornaments to A_1 towards dowry ancl they lived happily for two months. She stated that A_1 harassed the deceased in demand of additional clowry of Rs.2.00 lakhs and one motor cycle. she further stateci that when trre deceasecr arcr A-1 came to their house for Dasara festival, the deceased informecl her about the said demand of dowry and that she told to A_1 that they will arrange Rs.2.00 lakhs and one motorcycle at the time of Sankranti festival. Three days prior to the death of the deceased, she received a phone call form P.W.1 that the deceased fell down from the bike of A_1 and asked her to come to Kamineni Hospital, Narketpally, and then herself, P.Ws.1 to 3 and one M.yadaiah went to Kamineni Hospital, Narketpally, but they did not find the deceased in the hospital. On that P.W.1 contacted A-1 ancl A_1 informed to p.W.1 that the cleceased was shifted to Governrnent Hosp.ital, Nakrekal, then they reached there anrl founcl the deceased dieci with bleeding injuries on the nose, ear, shourder, neck and chest of the cleceased. she also deposed that A-1 to A-3 harassecl and assaulted the cleceased in

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demand of additional dowly of Rs.2.00 lakhs and one motorcvcle due to which ti-re deceased died.

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P.W.6, who is the relative of P.W.1, deposed that he is one of the marriage elders of the deceased with A-1 and at the time of marriage/ P.W.1 presented cash of Rs.4.00 lakhs, 5^1/z tulas of gold ornaments to A-1 towards dowry. After the marriage, the deceased joined with A-1 at Korlapahad and they lived happily for two months. He further deposed that the deceased informed him when she came to her parents l-rouse that A-1 harassed her in demand of additional dowry of Rs.2.00 lakhs and one motorcycle and he told to A-1 that P.Ws.1 and 2 will arrange the same. He came to know through the neighbours that the deceased was died in Nakrekal Government Hospltal, and immediately, himself and some of the villagers went to Nakrekal Hospital and found that the deceased was died with an iajury on her neck.

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P.W.7, who is also one of the relatives of P.Ws.1 and 2, deposed that the rrarriage of the deceased was performed with A-1 on 18.05.2013, at the time of marriage, Rs.4.00 lakhs and 5 % tulas of gold were presented to A-1 towards dowry and both the couple lived happily for two months and thereafter some dispu tes arose betr.veen them. P.W.1 used to inform about the family afiails of A-1 and the deceased. A-1 to A-3 harassed the deceased and P.Ws.l ancl 2 in demand of additional dor,r.,rv. On the date of incident, when he was in his house, P.W.1 informed him over phone that he has

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received a phone call from one Saidulu that the deceased fell down from the motorcycle and sustained injuries and she was taken to Kamineni Hospital, Narketpally. Immediately, he rushed to the house of P.W.1, then he himself along with P.Ws.1 to 6 went to Karninenl Hospital, Narketpally, but they did not find the deceased On er-rquiry, they came to knon' through R,M,P. doctor that the deceased has died on the way to Nakrekal Covernment Hospital and immediately they n,ent there and founcl that the deceased u,as in the mortuary. They noticed injuries on the shoulder, neck and chest of the deceased. He further deposed that the deceased died due to the unbearable harassment of A-1 to A-3.

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Before proceeding further, it would be useful to refer to Section 304-8 of I.P.C. which deals with dowry death, reads as

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under:

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"304-8.^{Dowry Death- (1) \Nhere the death of a womanis} caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her rnarriage and it is showr-r that soon bcforc her cleath she was subjected to cruelty or harassment by her husband or any relative of her husbancl for, or in comection with any demand for dowrv, such death shall be callecl 'dowry death" ancl such husbanri or relative shall be cleet.ned to have caused her death. Explanation - For the purpose ot this subsection 'dowry' shall have same meaning as in Section 2 of the Dowry Prohibition Act,1,961, (28 of 1,96-L).

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(2) Whoever commits clowry 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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The provision has application when death of a woman^is caused by any burns or bodill, 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} subiected to cruelty or harassment by^{her husbandor any} relatives of her husband fot, or in^{connectionwith any} demand for dowry."

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In order to attlact application of Section^{304-8 iPC, the} essential ingredients are as follows:-

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"(i) The death of a woman shoulc{ be caused by burns or bodilv injurl,or otherq,isc than unr.ler^a ttorural^{circumstance.}

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(ii) Such a clcath shoLrl.i havc occttrrt'tl^{r'r'ithiu sevctr vL'ars ol} irel marriage.

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(iii)She must have been subiected to cruelty or^{harassment by} her husband or any relative of her husband.

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(iv) Such cruelty or harassment should be for or^{in connection} with demand of dowry.

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(v) Such cruelty or harassment is shown^{to have been meted} out to the woman soon before^{her death.}

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Section 113-8 of the Evidence^{Act is also relevant for the case} at hand. Both Section 304-8 IPC and Section^{113-8 of the Evidence} Act were inserted as noted earlier by the^{DowryPlohibitiorr} (Amendment) Act i13 of 1986 with a view^{to combat the increasing} menace of dowry deaths. Section^{113-8reads as follows:-}

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"113-8: Presumption as to dowry death- When the question is whether a person has committed the clowrv death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any tlemancl for rlowr1., the Court shall presume that such person hacl caused the clowry cleath.

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Explanation - For the purposes of this section 'clowry death' shall have the same meaniug as in Sectiotr 304-8 of the Indian Penal Code (a5 of 1860)."

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A conjoint reac'ling of Section 113-8 of the Evidence Act and Section 304-8 IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty o1' harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the^,death occurring otherwise than in normal circumstances'. The expression 'soon before' is very relevant where Section 113-B of the Evidence Act ancl Section 304-8 IPC are presserl into service. Prosecution is obliged to shon,that soon t-refore the occul.rellce there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. 'Soon before'is a relative term and it would depend upon circumstances of each case and no skait-jacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as

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well as for raising a presulnption under Sectlon 113-B of the Evidence Act.

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To indicate that the expression'soon Lrefore'would normallv implied that the interval should not be much between the concelned cruelty or harassment and the death in question. There must be existence of a proximate and liveJink between the affect of cruelty based on dowry demand and the concerned death. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned/ it would be of no consequence.

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In the instant case, it is the eviclence of P.Ws.l,2,3 and 7 that after the marriage, A--l to A-3 harassec'l the deceased for additional dowry of Rs.2.00 lakhs ar.rd one motorcycle, whereas P.W.5, who is the grandmother of the deceased cleposed that A-1 harassed the deceased for aciclitional c-lorvrv of Rs.2.00 lakhs and one motorcvcle Further, P.W.1 stated that he informed the deceased and her in-laws over phone that he will arrange the additional dowry amount at the time of Sankranti festival. P.W.28, the then SDPO, Nalgonda, who recorded the 161 Cr.P.C. statements of P.Ws.1 to 12, in his crossexamination admits that P.W.2 did not state before him that A-1 to A-3 demanded one motorcycle from her or P.W.1; that P.W.5 also did not state before him that A-1 harassed the deceased in demand of motorcycle and the deceased informed her when herself and^A-1 came to the house for l)asara iestival and she told to A-1 that she

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will arrange one motorcycle and two lakhs at the time of Sankranti festival. P.W.5 also did not state before him that her daughter_inlaw, P.W.2, went to the house of A-1 ancl de.ceased orr the festival of Deepavali Nomulu along with golc-l ornaments of the deceased. A perusal of the evidence of p.ws.1 to 6, who are close relatives of the deceased, clearly reveal that there are several material variations, conhadictions and omissions h their evidence, which would go to the root of the case.

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Further, according to the evidenc e of p,W .7 , there are some disputes between the deceased and A_1; that p.W.1 used to inform him about the family affairs of A-1 and the deceased; that on the date of incident, when he was at his house, p.W.1 informed him over phone thathe received a call from one Saidulu that the deceased fell down from the motorcycle ancl sustained injuries anci she was taken to Kamineni I{ospital, Narketpally; that himsetf, p.Ws.l to 6 went to Kamineni Hospital, Narketpally ancl founrl that the deceasecl was not there and that on enquiry they came to know through R.M.p. doctor that the deceased was died on the n,ay to Nakrekal Government Hospital. However, the evidence of p.W.g is that on the date of incident at about 4.30 p.M. the deceased caled her to her house and asked her to sit in the hall and she went inside for cleaning of the store room, which is used for keeping paddy, and after cleaning the said room, she returned back with breathing problem and when she askecl the ileceased, she told her that since

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she swallowed dust in the room, she was getting breathing problem and irnmediatelv she r'r,ent to her house and informed the same to her father (P.W.9) and then her father \vent and brought R.M.P, doctor and the said RMP doctor gave first aid. P.W.9 also deposed that on the date of incident lvhile he was at hls house, P.W.8 in(ormed him tirat the deceased was suffering from breathing problem ancl imr.nediatelv he went and brought R.M.P. doctor, who gave first aid to the deceased and asked him to take the deceased to a private hospital at Nakrekal. Therefore, it appears that the deceased died due to breathing problem while cleaning the store room which is used for keeping paddy. The evidence of these wiLnesses is supported by the medical evidence. P.W.21., the doctor, who conducted post mortem examination on the dead body of the deceased, opined that the cause of deatl-r was due to asphyxia due to smothering. Thus, flom a perusal of the evidence of the prosecution witnesses, the essential ingredierrt, which is rlecessary to atlract the offence under Section 304-8 of LP.C. i.e., the deceased rvas subjected to cruelty by the appellant, soon before hel death in demand^of dowry is lacking. As such, the appellant is entitled to the^{benefit of} doubt for the offence under Section 304-8 of I.P.C.

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Now the question is whether a case under Section^{498-4 of} I.P.C. has been made out, even if accusations under Section 304-8 of I.P.C. fail. Section 498-A of I.P.C., reads as follows:

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"498-A: Husband or relative of husband of a n,oman subjecting her to crueltv- Whoever, bcing the husbancj or the relative of the husbancl of a woman, subjects such woman to cruelty shall be punishetl with imprisonment for a term which may extend to three years and shall also be liable to fine.

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Explanation - For the purpose of this section 'cruelty, means

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(a) 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

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(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or anv pcrson related to her to meet such demand.,,

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In the instant case, in the cross_examination p.W.1 categorically admitted that he is earning Rs.200/_ to Rs.300/_ per day by doing coolie work. p.W.2 also admitted in her cross_ examination that she is also doing labour work and earning Rs.100/_ per day. In view of the categorical admissions made by p.Ws.1 and 2 regarding their status, it is quite unbelievable that they have paid such a huge amount of Rs.4.00 lakhs cash and.51/z tulas of gold ornaments towards dowry to the accused ancl also informed the deceased that they will arrange additional dowry of Rs.2.00 lakhs and motorcycle at the time of Sankranti festivar to accused. The inquest report of the deceased, which was held in the presence of P.Ws.16 and 20 on 09.11.2013 at 1.30 p.M., would shows that at the

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time of inquest oniy Mattelu, Ear studs and Nose pin were found on the body of the deceased and not any other gold ornaments, particularly "pusthelathadu", and as such the case of the prosecution that at the time of marriage, P.Ws.1 and 2 have given 5 % tulas of gold ornalnents, is found to be false. Therefore, under these circumstances, the demand of additional dowry appear.s to have been invented by the prosecution witnesses after the death of the deceased. If really the accused were harassing the deceased to bring additional dowry, certainly this fact would have been stated by P.W.2 before P.W.28, who recorded her statement. Moreover, in this case, the lodging of the complaint (Ex.P1) after due deliberations cannot be ruled out, because of the reason that it came to be filed on 09.11.2013 at 12.00 Noon, whereas the prosecution witnesses have received the information on the previous day evening itself and they reached the hospital immediately thereafter. P.Ws.1, 2 and 3 have categorically deposed that P.W.1 has lodged the report on the very date i.e., on the date of death of the deceased. But, in the crossexamination, P.W.7 has categorically admitted that the complaint was draf ted by one Pendyala Bixam at his inshuctions and on 09.17.2013 he gave the complaint to the Police, Kethepally. Whereas, a perusal of the complaint, it does not bear the signature of the scribe of the complaint. The said Pendyala Bixam was neither cited as witness nor examined by the prosecution for the reasons best known to them. In view of these circumstances, it is highly unsafe

¶109

¶110

GSD. J Crla 36 2020

¶111

to place an implicit reliance on the evidence of P.Ws.1 and 2 u,ith regard to the demand of additional dowry

¶112

Basing upon the evidence of P.Ws.1 to 7 the kial Court, while acquitting A-2 and A-3 for the offences punishable under Sections 498-4,304-B of I.P.C. and Sections 3 and 4 of the Dowrv prohibition Act, 1961, convicted the appellant/ A-1 only for the offences punishable under Sections 498-4 and 304-8 of Lp.C. and Section 4 of the Dowry Prohibition Act, 7967. As discussed above, it is clear that the evidence is not wholly reliable with regard to the demand of dowry soon before the death of the cleceased. If that evidence is eschewed from consideration the appellarrt cannot be convicted for the offences punishablt uncler Sections 498-A antl 304-8 of Lp.C. ancl Section 4 of the Dowry Prohibition Act, 1961

¶113

For the foregoing reasons, I am of the considered opinion that the prosecution has failed to prove the guitt of the appellant/ AL for the offences punishable under Sections 304-8 and 498-4, of I.p.C. and Seclion 4 of the Dowry Prohibition Act, 1961, beyond all reasonable doubt and that he is entitled to the benefit of doubt.

¶114

Accordingly, the Criminal Appeal is allowed and the conviction and sentence passed by the learned Judge, Family Courtcum-Vl-Additional District and Sessions Judge, Nalgonda, against the appellant/A-1 for the offences punishable under Sections 498-.4 and 304-8 of LP.C. and Section 4 of Dowry I,rohibition Act,L96l,by

¶115

GSD".I Crla i6 2020

¶116

judgment dated 30.12.2019 in S.C.No.178 of 2076 are hereby set aside

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and he is acquitted of the said offences and he shall be set at liberty

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forthwith, if he is not required in any other case. The fine amount, if

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any, paid by the appellant/ A-1,, shali be returned to him.

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SD/-B.S,CHIRANJEEVI JOINT REGISTRAR

,TRUE COPY//

SECTION OFFICER

To,

The Judge, Family Court cum Vl Additional District and Sessions Judge, Nalgond a. (with reco rd s )

¶125

The Judicial Magistrate of First Class, Nakrekal, Nalgonda.

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3 The Sub-Divisional Police, Officer, Nalgonda.

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4 The Station House Officer, Kethepally Police Station, Nalgonda.

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5 The Superintendent, Central Prison, Cherlapally, Ranga Reddy District. Two CCs to the Public Prosecutor, High Court for the State of Telangana, at Hyderabad [OUT]

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6 One CC to Sri G. Jaya Reddy, Advocate IOPUCI

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7 Two CD Copies IMK

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CHR gbr

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HIGH COURT

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DATED: 2210412021

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i riE s i,:i
<br>t-
C 3 0 APR 2021

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JUDGMENT

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CRL.A.No.36 of 2020

¶137

ALLOWING THE CRIMINAL APPEAL

¶138

,4 7?r

Mohd. Abdul Arif v. The State of Telangana

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Mohd. Abdul Arif v. The State of Telangana

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