SRl. T v. KALYAN SINGH

5. Smt. Polkampeta Gangavva, W/o. Sailu Agricultural Cooli R/o. Chinoorwadi Village. Nagireddypet Mandal, Nizamabad District

6. Smt. Polkampeta Laxmi, Wo. durgaiah Agrrcultural Cooli R/o. Chinoorwadi Village, Nagireddypet Mandal. Nizamabad District. ...APPELLANTS/ Acc used AND The State of A.P., Represented by its Public Prosecutor, High Court, Hyderabad ...RESPODENT/ Complainant Counsel for the Appellant: SRl. T. V. KALYAN SINGH Counsel for the Respondent: SRI M. VIVEKANANDA REDDY, THE PUBLIC PROSECUTOR The Court delivered the following Judgment: THE HONOURABLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL No.1566 OF 2O1O JUDGMENT: This Criminal Appeal is filed by appellants/accused Nos.1 to 6, questioning the Judgment dated 15. l2.2OlO, in S.C.No.13I of 2OO9, passed by the VI Additional District & Sessions Judge (Fast Track Court), Nizamabad, at Kamareddy (for short, "trial Court"), wherein, the appellants/accused Nos.l to 6 were convicted for the offences punishable under Sections 304-8 ald 498-A of Indian Penal Code, 1860 (for short "IPC"), and sentenced to undergo imprisonment for 7 years and 1 year, respectively.

2. Heard learned counsel for the appellants/accused Nos.1 to 6 and Sri M.Vivekalanda Reddy, learned Additional Public Prosecutor for the respondent-State and perused the record.

3. Sri Potti Sailu/PW. 1 is the elder brother of Porkampeta Anitha @ Poleramma (deceased). The marriage of accused No.1 with the deceased was performed in the yeat 2006, and at the time of marriage, 30 tulas of silver ) ornaments and Rs.3O,00O/- cash were given as dowry. Accused Nos.l to 6 started harassing the deceased for additional dowry of Rs.20,OOO/-. The said information was given by the deceased to PW. 1. Further, the deceased met her mother on the Bonalu festiva-l on 27.O2.2O07, near the Yellamma temple accidentally, and informed that accused No.1 was forcing her to get Rs.20,O0O/-, failing which, she would be killed by the accused. On the next day, the accused No.l informed PW. 1 and others that the deceased consumed poison, and was shifted to the hospital. When PW. 1 and others went to the hospital, the deceased was declared dead by the doctor. A Telugu written complaint was filed by PW.1 on 28.02.2007, based on which, PW.11- Assistant Sub-Inspector of Police, Nagireddypet Police Station, registered a case in Crime No. 19 of 2007, and the investigation was taken over by PW. 12-lnspector of Police. PW. 12 went to PW. 1 and then conducted part of the investigation. Then, the body was sent for Post-Mortem Examination (PME) and it was revealed that the deceased died due to Organophosphate insecticide poison. PW. 12 arrested accused Nos. 1 to 6 and after completing the 3 investigation, hled a charge sheet for the offences punishable under Sections 304-8 and 498-A of IPC.

4. During the course of trial, PWs.l to 12 were examined and Exs.Pl to 9 were marked on behalf of the prosecution On behalf of the defence, Exs.Dl and D2 were marked.

5. Learned Sessions Judge found that the death of the deceased was within 7 years of marriage, and there was an allegation of harassment for additional dowry of Rs.20,000/- and accordingly, convicted the appellants/accused Nosl to 6. In the evidence of PWs.1 to 4, they consistently stated that at the time of lnarriage, Rs.30,000/- was given as dowry and there was harassment for additional dowry of Rs.20,OOO/-. According to the witnesses, this information was given to them by the deceased.

6. Not a single instance was narrated by any of the witnesses regarding the accused directly demanding an additiona-l dowry of Rs.2O,OO0/- from PW. 1 or any other relative of the deceased. As already stated, the information x.i r\ 4 regarding the demand for additional dowry of Rs.20,000/- was given by the deceased. In fact, regarding the demand for arrangement of Rs.20,000/- dowry was also informed by the deceased, but no demand was made directly by any of the accused. It was admitted by PW. 1 that there was no complaint regarding harassment, either to the police or to any of the elders, and also no panchayats were held. PW-l also admitted that since childhood, the deceased suffered with mogulla pain and beedi marks were put on forehead and on either side of her abdomen. He also admitted that if there are any disputes, the matter would be referred to l village elders for settlement in their communit5r. 7, Learned counsel for the appellants-accused Nos.1 to 6 relied upon the decision of the Hon'ble Supreme Court, in "Mahesh Kumar v. State of Haryana"l, wherein, the Hon'ble Supreme Court held that the expression, "soon before her death" used in the substantive Section 304-8 of IPC and Section 113-8 of the Evidence Act is present with the idea of the proximity test. No definite period has been ' (2019) 8 scc 128 5 indicated, and the expression "soon before" is not defined The Hon'ble Supreme Court, accordingly, allowed the appeal on the ground that prosecution has failed to prove either the demand for dowry, or that any such demand was raised soon before deceased's death, and also on the ground that the prosecution failed to prove the essential ingredients of offence under Section 304-B of IPC.

8. Learned counsel for the appellants also relied upon the decision of the Hon'ble Supreme Court, in the case of "Gurdeep Singh v. State of Punjab and Others"2, wherein, the Hontrle Supreme Court held that the initia-l burden of proving the harassment soon before the death is on the prosecution and a presumption can be raised when the initial burden is discharged. He also relied upon the decision of the Hon'ble Supreme Court in the case of "Vodnala Satyanarayana v. State of Andhra Pradesh"3. '1zot t; rz scc +os I zoz: 1ry lro 1crt.) 617 (TS 6 i+

9. Learned counsel for the appellants also relied on the decision of the Honble Supreme Court, in the case of Karan Singh v. State of Haryana4, wherein, it is held as follows: "[6]. The following are the essential ingredients of Section 3O4-B: a) The death of a woman must have been caused by ary burns or bodily injury or must have occurred otherwise than under normal circumstances. b) The death must have been caused within seven years of her marriage; c) Soon before her death, she must have been subjected to cruelt5r or harassment of the husband or aly relative of her husband; and d) Cruelty or harassment must be for, or in connection with, any demand for dowry. [fl If the a-foresaid four ingredients are established, the death can be called a dowry death, and the husband and/or husband's relative, as the case mhy be, shall be deemed to have caused the dowry death. Section 2 of the Dowry Prohibition Act, 1961 provides that dowry means any property or va-luable security given or agreed to be given either directly or indirectly by one party to a marriage to the other party to the marriage or by the parents of either parb/ to a marriage or by arly other person, to the other party to the marriage or to arly other person. The dowry must be given or agreed to be given at or before any time aJter the marriage in connection with the marriage of the said parties. The term valuable security used in Section 2 of the Dowry Prohibition Act, 1961 has the meaning as in Section 3O of IPC". 1(). To invoke the presumption under Section 1 13-B of Evidence Act, 1872, soon before the death, the deceased o ooo 7 must have been harassed for additional dowr5z. None of the witnesses stated that any of the appellants had directly demanded the amount. The demand for any additional dowry has to be proved, and also the consequent harassment, to fulfill such demand. Except stating that there was demand for additional dowry, which was informed by the deceased, nothing is narrated by the witnesses about any kind of harassment that was meted out by any of the accused. As a result, an ambiguous statement alleging that there was a demand for additional dowry, which was informed by the deceased to the witnesses, cannot form basis to convict the appellants either under Section 304-B or 498-4 of IPC.

11. Accordingly, the Criminal Appeal is allowed Miscellaneous Petitions pending, if any, shall stand closed. //TRUE COPY' SD/.K.SRINIVASA RAO JOINT REGISTRAR SECTION OFFICER -/ To ,1 . The Vl Additional District & Sessions Judge ( Fast Track Court ), Nizamabad at Kamareddy ( with records )

2. The Judicial first Class Magistrate, Yellareddy, Nizamabad District' 3. The Superintendent, Cherlapally Central Jail, Hyderabad 4. The Superintendent, Chanchalguda Jail, Hyderabad. 5. Two CCs to Public Prosecutor, High Court for the State of Telangana at Hyderabad. (OUT)

6. One CC to SRl. T. V. KALYAN SINGH, Advocate [OPUCI 7. Two CD Copies PSL \qr I --;;l HIGH COURT DATED:1OlO2l2O25 /7=':--=':=-- . i.-. ";- z .;C\- r..- --_:- * 'r /./i7.....1\ 'a,\\-k. :..-,tii f JTJDGMENI' CRL.APPEAL No.'t566 of 2010 28 APN frfr \;\. I t t I ALLOWING'IIIE CRI,.^PPEAL dficl> \0 &t"