Syed Shah Mohammed Quadri, J.:— Ayyala Rambabu (A. 1) was tried in SC No. 104/90 on the file of the Sessions Judge at Visakha patnam, along with his mother Ayyala Nookratnam (A. 2) and his father Ayyala Yerakayya @ Chinnabhai (A. 3), for an offence under Secion 498-A I.P.C, for subjecting his wife Krishnaveni to cruelty and was convicted and sentenced to undergo rigorous imprisonmen for two years; he was also tried for offence punishable under Section 302 I.P.C, for intentionally and knowingly causing the death of his wife Kishnaveni (hereinafter referred to as ‘the deceased’) by strangulation on 27-11-1989 and was convicted and sentenced to suffer imprisonment for life, by judgment dated 10-5-1991. Against the judgment dated 10-5-1991 in SC 104/90, the said Ayala Rambabu (hereinafter referred to as ‘the appellant’) filed this appeal.
2. The gravaman of the charge is that the appellant married the deceased in 1986. The appellant, his wife (the deceased), A. 2 and A. 3 were living in Narsipatnam in the same house. The appellant, A. 2 and A. 3 subjected the deceased to cruelty and that the appellant caused her death by strangulation on 27-11-1989 between 5.45p.m, and 6.15 p.m The plea of the appellant was one of denial.
3. To prove its case, the prosecution examined P. Ws 1 to 8, marked Exs. P. 1 to P. 10 and material object M.O.I No evidence - oral or documentary was adduced by the defence.
4. On the basis of the evidence of P.W 1, mother of the deceased. P.W 2, grand-daughter of P.W 1, P.W 3, son-in-law of P.W 1 and P.W 4, son of P.W 1 and the evidence of P.W 7, the Doctor, who conducted autopsy over the dead body of the deceased and gave Ex.P 4 postportem certificate, the learned Sessions Judge, Visakhapatnam, acquitted A. 2 and A. 3 of offence under Section 498-A I.P.C, and convicted and sentenced the appellant as stated above.
5. Shri C. Padmanabha Reddy, the learned counsel for the appellant, contends that the evidence of P.W 7 is not conclusive and that the death of the deceased was not homicidal, but was suicidal. He further contends that it was not permissible for the learned Sessions Judge to rely on passages in the book on Medical Jurisprudence without putting the passages to the doctor, therefore the conviction of the appellant under Section 302 I.P.C, is illegal. The learned Public Prosecutor contends that the opinion of P.W 7 is clear that the death was homicidal and the Court relied on the passage in the book on Medical Jurisprudence in support of the opinion and that the appellant was rightly convicted under Section 302 I.P.C
6. The appellant, his parents and his wife (the deceased) were living in his house in Narsipatnam. The appellant and the deceased were living with their 11 months old boy on the first floor, his parents and sisters were living on the ground floor of the same house. On 27-11-1987 at about 6 P.M, the wife of the appellant (the deceased) was found dead; one end of a saree (M.O 1) was tied around her neck and the other end was tied to the ceiling fan hook. There is no direct evidence as to how the death was caused and who is responsible for it. The evidence is circumstantial evidence establishes the guilt of the appellant beyond reasonable doubt.
7. P.W 1 is the mother of the deceased. She says that the marriage of the appellant with the deceased took place three years prior to her death. In the house of A. 2 the appellant and the deceased were living in the upstairs portion. At the time of the marriage of the deceased, P.W 1 and her son P.W 4, gave to the appellant dowry of Rs. 30,000/- cash, 8 tolas of gold, 20 tolas of silver and ‘sare samans’ worth Rs. 25,000/-. For sometime they lived happily. The appellant disposed of all jewelers and purchased lorry bearing No. AAV 4132 and was driving the same. But that lorry was seized on the allegation of committing forest offence. Thereafter the appellant started harassing the deceased for bringing money from P.Ws 1 and 4. On receiving the information that appellant's son received some burn injuries, P.Ws 1 and 3 (another son-in-law of P.W 1) went to the house of the accused. P.W 1 remained in the house of the appellant to assist the deceased. But as A. 2 was insulting her, she came back to her place at Narsipatnam and sent her grand daughter, PW. 2 to help the deceased.
8. The evidence of P.W 2 who is a girl of 11 years and is a student of VII class, is quite natural and irrefragable. She remained with the deceased for about 15 days before her death. She says that while she was in the house of the appellant on Saturday in the morning hours, appellant asked the deceased to go to the parents house and bring money. She protested and the appellant beat with his hands. On 26-11-1989 the appellant beat the deceased. When the appellant was beating the deceased, A. 2 and A. 3 saw that. The appellant said to the deceased that he did not marry her for her beauy but for money. His father (A. 3) said that either the deceased should live in the house or he should live and the appellant replied that he would settle whole thing. In the night he asked the deceased to send away P.W 2. On 27-11-1987 he gave Rs. 10/- and left her at the bus stand. After reaching home she told to her mother as to what all had happened. She also said that the deceased wanted P.W 1 to come to her. Then P.W 1 sent her other daughter and her husband (P.W 3) to the deceased.
9. P.W 3 is the son-in-law of P.W 1. He speaks about the marriage of the deceased with the appellant. He further says that on being informed by P.W 2 that the deceased wanted him, his wife and P.W 1 to come to Narsipatnam, he and his wife went to Narsipatnam at about 6 P.M When they reached the house of the appellant, they found that his mother was sitting at the steps. She asked them as to why did they come there so soon? They replied that they came because Krishnaveni (the deceased) wanted them to come. She asked her daughter Bhavani to inform Krishnaveni. Bhavani went upstairs and P.W 3's wife followed her. They came down and told that Krishnaveni died of hanging. Then P.W 3 went up and saw the deceased hanging by neck with a saree tied to the fan. That saree was marked as M.O 1 He raised alarm hearing which the neighbours gathered.
10. P.W 4 is the brother of the deceased and son of P.W 1. He corraborated the evidence of P.W 1 in all material particulars. He further stated that when P.W 3 informed him from Narsipatnam about the death of the deceased then he and his wife and P.W 1 went to the house of the appellant and found the dead body of the deceased in the upstairs room on the cot. Next day he lodged report Ex. P. 1.
11. On receiving the report from P.W 4, P.W 8, S.I of Police registered crime No. 207/89 under Sections 306 and 498-A I.P.C, and sent copies of F.I.R to all concerned.
12. The inquest was conducted by the Mandal Revenue Officer, Narsipatnam, P.W 5. Ex. P. 2 is the inquest report. At that time P.W 1 to 4 were examined P.W 5 sent requisiion to the Doctor P.W 7 to conduct postmortem of the deceased. P.W 7 conducted autopsy over the dead body of the deceased and issued Ex. P. 4 postmortem certificate. He opined that the deceased would appear to have died of asphysia due to stangulation 18 to 24 hours prior to the postmortem examination and that the strangulation could have been brought about probably by a rope or by a saree having twisted. After receiving the postmortem certificate, Ex. P. 4, P.W 8 altered the Section of law in the F.I.R, from 306 I.P.C, to one under Section 302 I.P.C
13. Fom the evidence of P.Ws 1, 2 and 4 discussed above, it is established that the deceased was subjected to cruelty for bringing money from P. Ws. 1 and 4 by the appellant so he was rightly convicted by the learned sessions Judge under Section 498-A, I.P.C
14. It is noticed that till the report of P.W 7 was received every one proceeded on the assumption that the deceased committed suicide. After receipt of Ex. P. 4 postmortem report that the deceased died of strangulation, section in F.I.R, was altered to one under Section 302 I.P.C so the entire case depends upon the evidence of P.W 7, the Doctor who conducted autopsy, as to whether the cause of death was suicidal or homicidal. On 28-11-1989 he conducted postmortem examination over the dead body of the deceased and found the following antemortem injuries on the body of the deceased.
1. Ligature mark around the neck except a gap of 5 cm on the back. The ligature mark is below the thyroid cartilage and is horizontal on both sides and is about 1″ × ½″ in width.
2. Multiple small abrasions on the left shoulder.
3. An abrasion under the left lower jaw and is 2″ × 1/10″.
4. Multiple small abrasion on the base of the front of the neck.
15. He opined that the deceased would appear to have died of Asphysia due to strangulation 18 to 24 hours prior to post-mortem examination. However in the cross-examination he admits that symptoms of suicidal hanging and strangulation are similar and that the abrasions on the body of the deceased could have been caused by the body coming into contact with a rough object. To the quesion put by the Court he replied that the abrasions found on the body of the deceased could have been on account of a struggle prior to the death of the deceased by strangulation either by hanging or otherwise. From this it is clear that the Doctor's (P.W 7's) evidence is not conclusive. But, however, the learned Sessions Judge relied upon the distinguished features given in Modi's Jurisprudence and concluded that it was a case of homicide.
16. In support of his contention that it is not permissible to rely on passages in the text book Shri Padmanabha Reddy, relied upon judgment of the Supreme Court in Bhagwan Das v. State of Rajasthan, AIR 1957 SC 589. In that case the prosecution inter alia relied upon the dying declaration made by the deceased. From the doctor's evidence it was found that it was improbable that the deceased would have been in a position either to walk or to speak so as to make a dying declaration in the manner spoken to by the prosecution. The High Court discredited the evidence of the doctor relying on passages from text book of Modi and Lyon. This was disapproved by the Supreme Court and it was observed that the evidence of expert cannot be discredited with reference to passages in text books without putting the same to him. It was also observed that conclusions adverse to the accused cannnot be drawn from the passages in the text books without putting these passages to the witness. A combined reading of Sections 45 and 46 of the Evidence Act shows where opinion of an expert is relevant, facts which support the opinion of expert, or are inconsistent with such opinion, are also relevant. But passages inconsistent with the opinion of expert cannot be relied upon without putting them to the expert in his evidence. We need not pursue his aspect as we have held that doctor's opinion is inconclusive.
17. Further in arriving at that conclusion the learned judge proceeded on the premise that the probabilities in favour of the conclusion that deceased met with a homicidal death are more than her having met a suicidal death. We must observe here that in criminal case the standard of proof is ‘beyond reasonable doubt’ but not probabilities of the case. Applying this standard of proof, having regard to evidence on record, it cannot be held that the death fo the deceased is homicidal by strangulation but not by suicide.
18. It has already been stated above that there is no direct evidence of strangulation of the deceased by the appellant; the evidence is circumstantial. It will be well to bear in mind the principle relating to appreciation of circumstantial evidence—the circumstance from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. In Kama Behera v. State of Orissa, (1987) 3 SCC 480 : AIR 1987 SC 1507, the Supreme Court observed:
“It is a settled rule of circumstantial evidence that each one of the circumstances have to be established beyond doubt and all the circumstances put together must lead to the only one inference and that is of the guilt of the accused”.
19. As in the instant case the first fact in the chain of circimstances namely, the death of the deceased being homicidal is not established, we accept the contention of Sri Padmanabha Redy that it is a case of suicide and consequently the conviction of the appellant under Secion 302 I.P.C, and sentence of life imprisonment are liable to be set aside.
20. The next question that arises for consideration is on the facts proved by prosecution, is the appellant guilty of any offence?
21. The death of the deceased occurred in the house of the appellant otherwise than under normal circumstances. This is yet another instance of the bridal death in mysterious circumstances. The evil of dowry has unfortunately spread like an epidemic in our society. To curb this evil and to deal with the problems arising out of it, the Parliament has enacted Dowry Prohibition Act, 1961 prohibiting giving or taking of dowry and making it a non-cognizable offence and amended the Indian Penal Code by inserting a new Chapter XXII (A) containing Section 498-A in I.P.C, providing punishment for cruelty by husband or relatives of the husband and Section 113-A in the Indian Evidence Act, by Criminal Law (2nd Amendment) Act, 1983 (46 of 83). To deal effectively with those responsible for dowry deaths it also inserted Section 304-B in the Indian Penal Code and Section 113-B in the Indian Evidence Act, by Act 43 of 89.
Section 498-A I.P.C, provides that whoever being the husband or the relative of the husband of a woman subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and will also be liable to fine. For purposes of that Section cruelty is defined to mean any willful conduct which is of such a nature as is likely to derive 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 harassment of the woman where such harrassment 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 any person related to her to meet such demand.
Section 113-A of the Evidence Act provides that when the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she has committed suicide within a period of seven years from the date of her marrriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to the circumstances of the case that, such suicide had been abetted by her husband or by such relative of her husband. The explanation to this Section says that the expression cruelty shall have the same meaning as in Section 498A I.P.C
Sub-section (1) of Section 304-B I.P.C, defines ‘dowry death’ as follows:—
“Where the death of a woman is caused by any burn 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 other relative of her husband or in connection with any demand for dowry”.
For purposes of this sub-section meaning of dowry as defined in Section (2) of Dowry Prohibition Act, 1961 is addopted. Sub-section (2) of this section prescribes minimum punishment of seven years and maximum of life imprisonment for the evidence of dowry death.
Section 2 of Dowry Prohibition Act defines “dowry” to mean:
“any property or valuable security given or agreed to be given either directly or indirectly—
(a) by one party to a marriage to the other party to the marriage; or
(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person,
at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies”.
22. A perusal of the above section makes it clear that where any property or valuable security is 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 party to a marriage or by any other person to either party to the marriage or to any other person at or before or at any time after marriage in connection with the marriage of the said parties, it would fall within the meaning of ‘dowry’. Mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies, is excluded from the definition of dowry.
23. From the above discussion it follows that where 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 also shown that before her death she was subjected to cruelty or harassment by her husband or any relative of the husband for securing any property or valuable security from her or her relatives, it would come within the meaning of “dowry death” provided it is in connection with any demand for dowry as defined under the Dowry Prohibition Act. To bring the demand within the meaning of ‘dowry’ any property or valuable security must have been given or agreed to be given either directly or indirectly (a) at the time of marriage or (b) before the marriage or (c) at any time after the marriage in connection with the marriage of the parties. If there has been no agreement between the parties to a marriage to give or take any property or valuable security or where the property or valuable security has been given and taken, but thereafter further amounts are demanded after the marriage, such demands will not fall within the meaning of dowry and even if all other requirements of Section 304-B of I.P.C, are satisfied, it will not be a dowry death. A learned single Judge of Delhi High Court in Inden Sain v. State (1981 Crl. Law Journal 1116) took the view that after the marriage giving of property of valuable security by the parents of the bride, cannot constitute a consideration for marriage unless it was agreed at the time of or before the marriage that such property or valuable security would be given in future. This was approved by their Lordships of the Supreme Court in L.V Jadhav v. Shankar Rao Abasaheb Pawar, (1983) 4 SCC 231.
24. The Supreme Court observed:
“The allegation in the complaint indicated that those articles were given after the marriage with a view to have smooth sailing and continuance of good marital relations. The learned Judge, therefore, held that the articles given in those circumstances did not constitute dowry within the meaning of Section 2 of the Act. We think that the learned Judge is right in holding so, and that it is desirable that even such a demand should be prohibited and made punishable in law”.
(emphasis added).
25. With great respect to their Lordships of the Supreme Court, we reiterated the observation of the Supreme Court, regarding the desirability of prohibiting and making punishable a demand made after the marriage for any property even though there has been no promise anterior to the marriage for the property demanded. Otherwise a person who demands any property before the marriage and does commit acts which amounts to cruelty or harassment by a man to his wife and her death occurs within seven years of her marriage either by burn or bodily injury or otherwise than under normal circumstances can be found guilty of dowry death under Section 304-B I.P.C, and would be liable to minimum penalty of seven years which may extend to life imprisonment, but a person who receives all the property pursuant to the demand and promise, but makes subsequent demand for something which is not promised or a person who does not make a demand for any dowry but nonetheless harasses the wife and subjects the wife to cruelty for getting property from her relatives which was not promised or agreed either at the time of the marriage or at any time after the marriage and the death of the woman occurs either by burns or bodily injury or otherwise, than under circumstances, within a period of seven years from the date of her marriage and it is shown that she was subjected to cruelty or harassment by her husband or his relatives, cannot be found guilty of dowry death for the simple reason that the demand for property was not one which was agreed to be given either directly or indirectly. Such a person can only be found guilty of Section 498-A I.P.C, for which the maximum penalty is only three years with fine.
26. It may also be noticed that where it is established that a husband or relative of husband of a woman subjects her to cruelty as defined in explanation to Section 498-A of the Act and in consequence of that she commits suicide within seven years of her marriage, the husband or relative of the husband, as the case may be, may be presumed to have abetted such suicide in view of provisions of Section 113-A of the Indian Evidence Act.
27. Now reverting to the facts of this case, accepting the contention it is a case of suicide, the facts established, do give rise to the presumption that the appellant is responsible for abetting the deceased to commit suicide, having regard to the provisions of Section 113 A of the Evidence Act. Sri Padmanabha Reddy, however, contends that as there is no alternative charge of Section 306 I.P.C, the appellant can not be found guilty of offence under Section 306 I.P.C We are not persuaded to accede to this contention.
28. From the above discussion it is evident that the deceased died of suicidal death, nay it is the case of the appellant that she committed suicide; the death occurred within the meaning of Section 498A I.P.C and is found guilty of that offence. Where the facts stated in the charge sheet and established together with the plea of accused, make out lesser offence than that charged, absence of alternative charge does not cause any prejudice to him and he can be found guilty of lesser offence. We are supported by the judgment of Division Bench of this Court in Vemuri Venkateswara Rao v. State of A.P, 1992 Crl. Law Journal 563 wherein it is held that a person charged under Section 302 I.P.C can be found guilty of offence under Section 304-B I.P.C notwithstanding absence of separate charge under Section 304-B I.P.C We are, therefore, of the opinion that the accused is guilty of Section 306. I.P.C Accordingly we set aside the conviction and sentence of the appellant under Section 302 I.P.C and alter the conviction to one under Section 306 I.P.C and sentence him to seven years rigorous imprisonment. The sentences are directed to run concurrently.
29. The appeal is allowed to the extent indicated above.