1. This criminal appeal is filed against the judgment dated 21.10.2014 in S.C.No.3 of 2014, passed by the learned Principal Sessions Judge, Warangal for the offences under Sections 498-A, 302, 304-B of Indian Penal Code (for short ‘IPC’) and Sections 3 and 4 of Dowry Prohibition Act (for short ‘D.P.Act’) and sentenced appellant/accused No.1 to rigorous imprisonment of life and also to other punishments with fine. Aggrieved by the said judgment appellant/accused No.1 preferred this appeal.
2. In appeal it is mainly contended that trial Court erred in placing reliance on the evidence of prosecution witnesses 1 and 3 in convicting the appellant/accused No.1, who are interested in securing the conviction of the appellant/accused No.1, the entire case of the prosecution based on circumstantial evidence in so far as it relates to the offence under Section 302 of IPC. The circumstances proved by the prosecution do not form a chain to convict the appellant. It is also contended that trial court ought to have seen that the evidence on record do not satisfy the ingredients of Section 498-A, Sections 3 and 4 of DP Act are not sustainable.
3. It is further contended that the trial Court ought to have seen that the appellant/accused No.1 is a driver who came to his house on 24.09.2012 at about 7.00 AM by the time his in laws, sisters of the deceased are present at the house and the police arrested appellant/accused No.1 and his mother and kept in police station at about 08.00 AM on the same day and the Court below ought to have seen that there is no evidence of payment of Rs.5,000/- was secured by pledging the gold ornaments is not established and Court below ought to have seen that the evidences of the prosecution consists of contradictions and omissions and improvements as such evidence cannot form basis in convicting the appellant.
4. It is further contended that Court below ought to have seen that the evidence on record has not established the presence of the appellant/accused No.1 in the night of 23.09.2012 to draw inference that the appellant/accused No.1 is responsible for the death of the deceased. It was further held that trial Court erred in holding that the appellant/accused No.1 was at home on 23.09.2012 on the basis of the evidence of P.W.3. According to the appellant/accused No.1 when he came to home on 24.09.2012 his in-laws and sisters of the deceased were very much present at home. Therefore, it is for the prosecution to prove that P.W.1 came to the house of the deceased on 23.09.2012 at about 09.30 PM on receiving information that the deceased was beaten by the appellant/accused No.1 and took the elder son of the appellant/accused No.1 to their home. No report was given by P.W.1 about beating of the deceased nor it was intimated to anybody in the locality and trial Court erred in not holding that the appellant/accused No.1 failed to prove his alibi that he was not present at home on the night of 23.09.2012. It is for the prosecution to prove the presence of the appellant/accused No.1 at home at the said date to draw inference that the appellant/accused No.1 is responsible or answerable to the death of the deceased. It is also stated that trial Court erred in placing reliance on evidence of P.W.6 who is said to be neighbor to the appellant/accused No.1, that the deceased was subjected to harassment by the appellant/accused No.1 for payment of additional dowry but she was examined as panch witness and was not examined as a witness to prove the cruelty.
5. The learned Judge took her evidence as corroboration to the evidence of P.Ws.1 and 3. It is further stated that trial Court ought to have seen that the neighbor who was examined as P.W.2 did not support the case of the prosecution. On realizing that the P.W.2 who is an independent witness did not support the case of the prosecution, examined P.W.6, who cited as panch witness, to prove the harassment meted out to the deceased and therefore requested this Court to set aside the judgment passed by the learned trial Court.
6. Heard arguments of both the Counsel and perused the entire evidence on record.
7. P.W.1 is mother of the deceased stated that she has six daughters and one son. Shajahan/deceased is her fourth daughter and also stated that appellant/accused No.1 is the husband of Shajahan/deceased and he is also the son of her sister-in-law who is accused No.2. She stated that at the time of marriage, they gave Rs.20,000/- in cash, one tula of gold, jewellery and ten tulas of silver articles on the demand of the accused. After marriage, Shajahan/deceased joined her husband in marital home at Rangasaipet, Warangal and their house is separated by two or three lanes to their house. Accused Nos.1, 2 and the deceased used to live in that house. She further stated that five months after the marriage the accused began to harass Shajahan/deceased since they did not give away more dowry. They were abusing and beating the Shajahan/ deceased every day and even though she was telling them that they expressed their inability to meet their demand for dowry of Rs.50,000/-. P.W.1 also told them that her husband is a rickshaw puller and was not in a position to meet such demand. It went on likewise for about one and half year and Shahajan/deceased was blessed with a male child. She further stated that when her first child was 11 months old, Shajahan/deceased attempted to commit suicide by jumping into a well and it was prevented by her neighbors. When they came to know about it, they went to the house of the accused and asked them about the treatment to Shajahan/deceased, by them and they quarreled with her and sent them away, asking not to visit them again. She further stated that, 21 days after her second child was born, the appellant/accused No.1 had beat Shajahan and when she visited her on that occasion. She found both her cheeks swollen. She tried to convince the accused on that occasion and returned home along with the first child of Shajahan/deceased the same day.
8. P.W.1 further stated that on next day morning appellant/accused No.1 informed Sharipha/P.W.3 on phone that Shajahan/deceased was not awake and in spite of his efforts to get her up. Thereafter, Sharipha/P.W.3 informed P.W.1 about it on phone. She also asked her to take Shajahan/deceased to the hospital. Thereupon, P.W.1 and her eldest daughter and her son went to the house of accused at 06.30 A.M and saw the injuries on both legs, hands and around the neck of Shajahan. There they felt that accused had beaten her causing such injuries. They saw Shajahan/deceased dead. Her second child was by her side. They raised hue and cry thereupon. At about 12.00 noon, P.W.1 and her daughter went to Police Station and presented a written complaint against both accused in this respect stating that accused Nos.1 and 2 are responsible for death of her daughter and they murdered her, since she found marks of violence around the throat of Shajahan/deceased. Therefore, filed complaint to the police under Ex.P.1.
9. Further P.W.1 stated that when the accused demanded Shajahan/deceased to get money from them, her third daughter Sharipha/P.W.3 gave away Rs.5,000/- to them, after raising such money, pledging her gold ear studs. P.W.1 stated that they had promised to give away Rs.30,000/- as cash, at the time of marriage of appellant/accused No.1 and Shajahan/deceased. But they give only Rs.20,000/-. She also stated that Shajahan died three years six months after her marriage and also stated that no panchayat was conducted to settle the disputes between the accused and deceased. She further stated that appellant/accused No.1 is a driver of an Ambulance in MGM Hospital at Warangal. He keeps his Ambulance near MGM Hospital, Warangal. It is true that appellant/accused No.1 used to attend his work during nights whenever necessary, as the driver of Ambulance. He did not witness as what happened on the night when Shajahan/deceased died in the house of the accused.
10. P.W.2 is a private electrician stated that he knows accused Nos.1 and 2 but he do not know the nature of relationship between accused No.1 and his wife and turned hostile.
11. P.W.3 is another sister of the deceased. She stated regarding the demand for additional dowry and also regarding the disputes between appellant/accused No.1 and Shajahan/deceased. She stated that appellant/accused No.1 coming in drunken condition and beating her sister demanding additional dowry as such she gave Rs.5,000/- to appellant/accused No.1 after first son was born to Shajahan. Thereafter, for some time they lived together normally. On 01.09.2012, when her parents are not in a position to pay the balance dowry, Shajahan/deceased pledged her gold ear studs, raised Rs.5,000/- and gave it to appellant/accused No.1. She further stated that after Shajahan/deceased gave birth to the second child, appellant/accused No.1 began to harass Shajahan/deceased demanding additional dowry. Accused No.2 had also quarreled with Shajahan/deceased threatening to kill her, within 20 days of birth of second child. She stated that her mother went to them and requested to look after Shajahan properly and treat her well. She further stated that the same night appellant/accused No.1 had beat Shajahan and murdered her by strangulating her with a towel. On next day morning at 6.15 A.M appellant/accused No.1 started abusing her on phone and he told that Shajahan/deceased was not getting up in spite of his efforts, when he chastised him for abusing. He had left the phone aside and started saying as if he was waking the Shajahan/deceased. Immediately, she contacted her mother on another phone and informed her that appellant/accused No.1 had phoned her up stating that Shajahan/deceased was not getting up, asking her to go to the house of accused in an auto rickshaw and to take Shajahan/deceased to the hospital but by the time Shajahan/deceased died. Thereafter, she stated that she observed injuries on arms of Shajahan as well as on the upper chest. She also observed application of turmeric powder to the cut injuries on her arms and these injuries were caused by broken bangles. She also saw the marks of strangulation at the throat and there was blackening at that place, as if she was strangulated by use of force. In the cross examination she stated that accused No.2 began to live separately since about six months prior to death of Shajahan, in a room. Deceased had quarreled with her and thus accused No.2 left the house of appellant/accused No.1, to live separately. But accused No.2 had come away to the house of appellant/accused No.1 from the time Shajahan gave birth to the second child and joined them straight from the hospital accompanying the deceased. It was also stated that accused No.2 had left the house of appellant/accused No.1 since appellant/accused No.1 had lost his job, and was idle for about five or six months, without any income. Further, she stated it is not true that on the night of the alleged incident, appellant/accused No.1 was on duty at his ambulance and also stated that it was a Sunday and appellant/accused No.1 was not on duty and stated that she know that Ambulance service is an emergency service, for which there will not be any holiday.
12. P.W.4 is the relative to P.W.1 who was one of the elder of the said marriage. But he turned hostile and simply stated that he do not know about the incidents prior to this marriage and also stated that he do not know why and how Shajahan/deceased died.
13. P.W.5 is the photographer who filed photos under Ex.P.4.
14. P.W.6 is the neighbor. She stated that appellant/accused No.1 and Shajahan/deceased started quarrelling with each other, five or six months after their marriage. Shajahan/deceased was telling her that appellant/accused No.1 was quarrelling with her, for not bringing additional dowry. These quarrels continued in between them till Shajahan/deceased died. On the day when Shajahan/deceased died, P.W.1 came to the house of appellant/accused No.1 at about 09.00 P.M and she took along with her the first child of Shajahan/deceased to her house. She further stated that at about 10.00 PM again appellant/accused No.1 and the deceased quarreled with each other. She also stated that they did not interfere since it was an affair related to wife and husband. Next morning when P.W.1 was seen crying at the house of appellant/accused No.1, they went there. There she saw Shajahan/deceased lying dead on a cot in the house. She saw injuries on upper and lower limbs, on the face, on the upper chest and her face was blackened. She also saw broken bangle pieces lying there. She further observed violet color towel by the side of the dead body. Thereafter, she submits that M.O.1 is the towel seized by the police in her presence, from the scene. M.O.2 is a packet containing broken glass bangle pieces and they were also seized in her presence by the police from the scene. She also stated that inquest was also conducted on the dead body in her presence at the scene itself by the police and on inquest report also bears her signature under Ex.P.6. Therefore, she submits that accused No.2 was staying with appellant/accused No.1 and Shajahan/deceased about two months prior to the death of Shajahan/deceased, accused No.2 began to live separately in a different locality.
15. P.W.7 is the Doctor who conducted autopsy and he opined that the cause of the death due to Asphyxia as a result of manual strangulation. Ex.P.7 is the postmortem examination report, Ex.P.8 is F.S.L.Report and Ex.P.10 is final opinion dated 18.12.2012.
16. P.W.8 is the Junior Faculty Member, in A.P Academy of Rural Development, Rajendranagar, Hyderabad and earlier he worked as Tahasildar at Warangal from 11.01.2012 to 12.11.2013. Inquest was conducted in his presence.
17. P.W.9 is the Inspector of Police who received Ex.P.1 from P.W.1 regarding death of her daughter Shajahan/deceased against the accused and basing on it registered a case in Crime No.291/2012 under Sections 498-A, 302, 304-B of IPC read with Section 34 of IPC and Sections 3, 4 and 6 of DP Act and issued express F.I.R under Ex.P.11.
18. P.W.10 is the Deputy Superindent of Police who received Ex.P.11 from P.W.9. Upon receiving the information from P.W.9 recorded statement of P.W.1 under Section 161 Cr.P.C and requested P.W.8 to conduct inquest over the dead body of Shajahan/deceased and seized M.Os.1 and 2. He also examined witnesses and arrested accused Nos.1 and 2 on 27.09.2012 at 09.30 A.M and filed charge sheet.
19. It was mainly contended by the prosecution that appellant/accused No.1 had quarrel with the deceased on the demand of additional dowry and strangulated her manually and killed her. Whereas the defence of the appellant/accused No.1 is that he was an ambulance driver in MGM Hospital at Warangal and he went to duty during night time and came to the house on the next day morning at about 07.00 A.M and found dead body of his wife with injuries and stated that he is no way related to the offence and thus he took the plea of alibi but he was not examined by any person to show that he was in MGM Hospital or he was running ambulance during night time on emergency and he was not in the house at the time of incident. However, P.W.1 clearly stated that he went to the house of accused and deceased at about 09.30 P.M and found accused beating her daughter and advised him to look after well also brought elder son with her even the neighbor also stated that afterwards also quarrel was continued between deceased and accused as already stated by the witnesses and accused No.2 was not residing with them and she was residing separately since six months prior to the incident and thus she is no way concerned with the offence and she was acquitted and thus accused and deceased are present in the house at the time of incident. It is stated that P.W.1 has seen accused beating her daughter and also requested him to take care of her daughter properly even afterwards appellant/accused No.1 bet her and also strangulated her with the towel.
20. As per the medical evidence, the cause of death is manual strangulation. It is for the appellant/accused No.1 to explain how his wife died on that day as she was alone in the house, as per Section 106 of the Evidence Act appellant/accused No.1 simply took the plea of alibi but could not establish the same. P.Ws.1 and 3 clearly stated that appellant/accused No.1 was demanding additional dowry and beating Shajahan/ deceased even she made suicide attempt by jumping into the well without bearing harassment of the appellant/accused No1 after the birth of the first child. At the time of incident, deceased having two children but second child was aged 21 days as on the date of the incident. P.Ws.1 and 3 constantly stated that at the time of marriage they agreed to give Rs.30,000/- but only Rs.20,000/- was given to the accused and thereafter appellant/accused No.1 started insisting deceased for the balance amount of dowry and also additional dowry of Rs.50,000/-. P.W.3 gave Rs.5,000/- by pledging her ear studs and another Rs.5,000/- given by the deceased. Even then accused beat the deceased and killed her by strangulation.
21. According to P.W.1 accused killed her daughter three and half years after the marriage. Thus it clearly falls under Section 304-B of IPC i.e., dowry death. It seems that there was demand for dowry that too soon before the death.
22. To attract the provisions of Section 304-B of the IPC the main ingredients of the offence to be established are that soon before the death the deceased she was subjected to cruelty and harassment is in connection with the demand of dowry. If the death of the deceased woman was caused by any burn or bodily injury or some other circumstance which was not normal, such death occurs within seven years from the date of her marriage, that the victim was subjected to cruelty or harassment by her husband or any relative of her husband, such cruelty or harassment should be for or in connection with demand of dowry, and it should be established that such cruelty and harassment was made soon before her death and whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years which may extend to imprisonment for life.
23. It seems that ingredients of Section 304-B are satisfied. As such, the trial Court found him guilty for offences under Section 304-B of IPC but convicted under Section 302 of IPC as such no conviction was given for an offence which falls under Section 304-B of IPC.
24. Therefore, this Court finds it reasonable to convert the conviction of the accused for offence under Section 304-B of IPC instead of Section 302 of IPC.
25. The appellant/accused No.1 had already completed 9½ years of sentence. Therefore, this Court finds that it is just and reasonable to modify the sentence as the period already undergone by him, as it falls under Section 304-B IPC.
26. In the result, the Criminal Appeal is partly allowed. The conviction and sentence of imprisonment in S.C.No.3 of 2014 dated 21.10.2014, against the appellant/accused No.1 for the offence under Section 302 I.P.C is modified to that of Section 304–B of I.P.C and is reduced to the period already undergone by him. The appellant/accused No.1 shall be set at liberty forthwith, if he is not required in any other case. M.Os.1 to 4 shall be destroyed after the expiry of appeal time.
Pending miscellaneous petitions, if any, shall stand closed.
