TUMMALA VENKATESHWAR RAO Vs STATE OF A.P.
Bench: SUDHANSU JYOTI MUKHOPADHAYA,S.A. BOBDE
Case number: Crl.A. No.-000552-000552 / 2011
Diary number: 27321 / 2010
Advocates: R. CHANDRACHUD Vs
D. MAHESH BABU
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 552 OF 2011
TUMMALA VENKATESWAR RAO …. APPELLANT
VERSUS
THE STATE OF ANDHRA PRADESH …. RESPONDENT
JUDGMENT
S. A. BOBDE, J.
1. This appeal has been preferred by the appellant against the Judgment
of a learned Single Judge of the High Court of Judicature at Andhra Pradesh
dismissing his appeal against conviction and sentence under Section 304-B
of the Indian Penal Code [hereinafter referred to as “IPC”] for 7 years
Rigorous Imprisonment for causing dowry death of the deceased – Neelima.
His mother, his sister and her husband were acquitted of the same charge.
2. The prosecution case is that the appellant was married to Neelima on
12.02.2003. She went to cohabit with him after five months in July 2003
but returned within four days informing her family that the accused used to
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harass her physically and mentally both for want of Rs. 2,00,000/- as
additional dowry. Gandham Anuradha @ Chinni - A3 and Thummala
Sreelakshmi – A-4, the sister and brother-in-law of the appellant, took her
back for Varalakshmi Viratam. She was again harassed for the same
demand. So, the father – PW1, brought her back to his house. At home,
the deceased – Neelima, expressed her intention to commit suicide. The
father invited the appellant to his house for Diwali on 23.10.2003 but he
refused to come. At about 7.30 p.m. when the family was celebrating the
festival, Neelima consumed pesticide in her bed room. She was found there
on the bed with the pesticide tin next to her. The family shifted her to Elect
Critical Care Hospital but she died. The father reported the matter to the
police, who registered a First Information Report. The next day, the police
recovered the pesticide tin, the bed sheet and the towel. The Mandal
Revenue Officer (MRO) examined the father, who gave his statement.
Hence, the prosecution.
3. We have heard the parties and examined the record. Shri Nagendara
Rai, learned senior counsel for the appellant, submitted that the other
accused, namely, the mother - Thummala Satyavani – A2; the sister -
Gandham Anuradha - A3; and Thummala Sreelakshmi – A-4 (husband of A3)
having been acquitted on the same evidence, the accused is also entitled for
such an acquittal, in view of the fact no specific allegation that the appellant
demanded dowry has been made, such allegation having been made in
general in respect of all the accused. As rightly pointed out by the learned
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counsel for the prosecution, there is no merit in this submission since there
is evidence that not only the appellant made a demand of Rs. 2,00,000/-
along with other accused but that the accused specifically and individually
made demand for dowry. In his deposition, PW-1 – father of the deceased,
stated that the deceased had informed that the appellant used to beat her
for dowry when the deceased first went to cohabit with him after five
months. Even after her return to matrimonial house for the second time, he
deposed that on 23.10.2003 when he went to invite the appellant and his
daughter for Diwali Festival all the accused asked him to take away his
daughter as he did not pay the dowry and they wanted to perform marriage
of the appellant with another lady. The father (PW1) has specifically stated
that the appellant himself did not accept the invitation but asked him to send
his daughter with cash. It is soon thereafter that the deceased expressed
her intention to commit suicide since she came back alone narrating the
harassment made by the accused. There is similar evidence in the
depositions of PW-3 – K. Sudha Rani, the sister of the deceased, who has
deposed that the deceased expressed her grief that her husband did not
come for Diwali for want of Rs.2,00,000/-. Whereupon, the deceased wept
and expressed her intention not to live. PW-5 – Kothapalli Satyanarayana –
the maternal uncle of the deceased, has also deposed that Neelima informed
that A1-appellant continued to demand dowry. These specific allegations in
respect of the demand by the appellant are apart from the various
statements of the witnesses that the accused, which term include the
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appellant, harassed her even when she went to cohabit for the first time.
The appellant entrusted her the work of servant maid and he used to beat
her for dowry. In fact, the accused informed the family of the deceased their
intention to marry another lady for higher dowry. In view of the beating and
humiliation meted out by the appellant we are satisfied that the deceased
was harassed and treated with cruelty in connection with a demand for
dowry.
4. From the evidence, it appears that the appellant considered himself
justified in making a demand for higher dowry because prior to this
disastrous marriage someone had agreed to pay him Rs. 15,00,000/- for
marrying his daughter, which he had given up on seeing the deceased
Neelima, and agreeing to marry her only for Rs.5,00,000/-.
5. It was next contended by Shri Rai that the so called harassment for
dowry was not shown to have been made immediately before the death of
Neelima as required by law for conviction. It is too late in the day to accept
this contention since the term “soon before her death” has been consistently
held by this Court not to mean immediately before the death.
6. This Court in the case of Kailash versus State of Madhya Pradesh
(2006) 12 SCC 667 : AIR 2007 SC 107 has observed as under:
“No presumption under Section 113-B of the Evidence Act would be drawn against the accused if it is shown that after the alleged demand, cruelty or harassment the dispute stood resolved and there was no evidence of cruelty or harassment thereafter.
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Mere lapse of some time by itself would not provide to an accused a defence, if the course of conduct relating to cruelty or harassment in connection with the dowry demand is shown to have existed earlier in time not too late and not too stale before the date of death of the victim. This is so because the expression used in the relevant provision is “soon before”. The expression is a relative term which is required to be considered under specific circumstances of each case and no straitjacket formula can be laid down by fixing any time-limit. The expression is pregnant with the idea of proximity test. It cannot be said that the term “soon before” is synonymous with the term “immediately before”. This is because of what is stated in Section 114 Illustration (a) of the Evidence Act. The determination of the period which can come within the term “soon before” is left to be determined by the courts, depending upon the facts and circumstances of each case. Suffice, however, to indicate that the expression “soon before” would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link [see Hira Lal v. State (Govt. of NCT), Delhi].”
7. This Court in the case of Hira Lal versus State (Govt. of NCT), Delhi
(2003) 8 SCC 80 has observed as under:
“A conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of “death occurring otherwise than in normal circumstances”. The expression “soon before” is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and
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only in that case presumption operates. Evidence in that regard has to be led by the prosecution. “Soon before” is a relative term and it would depend upon the circumstances of each case and no straitjacket 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 well as for raising a presumption under Section 113-B of the Evidence Act. The expression “soon before her death” used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression “soon before” is not defined. A reference to the expression “soon before” used in Section 114 Illustration (a) of the Evidence Act is relevant. It lays down that a court may presume that a man who is in the possession of goods “soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for their possession”. The determination of the period which can come within the term “soon before” is left to be determined by the courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression “soon before” would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence.”
8. Section 304-B, IPC, reads as follows:
“Dowry death.- (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
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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.
Explanation.- For the purposes of this sub- section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(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.]
9. It is obvious from this provision that the term “soon before her death”
has been employed by the Parliament to refer to cruelty or harassment
which was meted out in proximity to the death has to be considered as the
cause of the death as held supra. The provision does not employ the term
“at any time before” nor “immediately before” and must be construed
according to its true import.
10. The post-mortem report and the post-mortem observations of PW 10 –
Dr. Rajani Kumari confirmed that the deceased/Neelima had died due to
consuming poisonous Endosulfan.
11. We thus find that in the present case there is sufficient evidence to
hold that the deceased had been subjected to cruelty and harassment by her
husband in connection with a demand for dowry soon before her death. We
have arrived at this conclusion even after excluding allegations of cruelty
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and harassment to which the deceased was subjected during the first period
of her cohabitation; after which she had returned.
12. Shri Rai, the learned counsel referred to the evidence of PW-13 – G
Sambamurthy, the Mandal Revenue Officer, who carried out the inquest
under Section 174 of the Code of Criminal Procedure Code, 1973
[hereinafter referred to as “the Code”] and attacked the credibility of the
evidence of PW-5, the maternal uncle of the deceased. According to Shri
Rai, the evidence of Mandal Revenue Officer shows that PW-5 did not state
that the deceased Neelima has told him about her travails or harassment in
connection with the demand for additional dowry and that he had accosted
the appellant and advised him to withdraw his demand of Rs. 2,00,000/-.
It was argued that the statements of PW-5 to that effect are therefore false
and the same must be discarded. Apart from the fact that there is a
difference in a statement appearing in the deposition of an officer conducting
an inquest and a statement recorded by the police under Section 161 of the
Code, we find that even without the deposition of PW-5, there is sufficient
reliable evidence on record to hold that the deceased was subjected to
cruelty and harassment in connection with a demand for dowry.
13. It may be noted no exculpatory evidence has been led in defence so as
to rebut the presumption enacted by Section 113-B of the Indian Evidence
Act, 1872, which reads as follows:
“113B. Presumption as to dowry death.- When the question is whether a person has committed the
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dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall presume that such person had caused the dowry death.
Explanation.- For the purposes of this section, "dowry death" shall have the same meaning as in section 304B of the Indian Penal Code.”
14. In the circumstances, we find there is no merit in the appeal and the
same is hereby dismissed.
……..............................………………..J. [Sudhansu Jyoti Mukhopadhaya]
……........................………………………J. [ S.A. Bobde ]
New Delhi, December 17, 2013
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