t34441

BAIL SLIP: The AppellanU Accused was directed to be released on bail by the order

of the High Court dated 18-07-2012 in Crl.A.M.P.No.1473 of 2012 in Crl A.No 683 of

2012.

IN THE HIGH COURT FOR THE STATE OF TELANGANA

AT HYDERABAD

THURSDAY, THE SECOND DAY OF APRIL

TWO THOUSAND AND TWENTY SIX

PRESENT

THE HON'BLE SMT. JUSTICE TIRUMALA DEVI EADA

CRIMINAL APPEAL NO: 683 OF 2012

Appeal under Section 374(2) of the Cr P.C aggrieved by the Judgment dated

13-07 -2012 passed in S.C.No.367 of 201

'1

on the file of the Court of the I Additional

Sessions Judge, Adilabad.

Between:

Shaik Ghouse, S/o Khaia, Aged 24 years, Occ: Kasab (Beef Seller), R/o

Kolipura, Adilabad District.

...AppellanUAccused

AND

The State of A.P, through the Sub Divisional Police Offrcer, Adilabad,

Adilabad District, Represented by its Public Prosecutor, High Court of Andhra

Pradesh, Hyderabad.

...RespondenUComplainant

Counsel for the Appellant: Ms. S. Navya, counsel representing

Sri S. Surender Reddy

Counsel for the Respondent: Sri D. Arun Kumar,

Additional Public Prosecutor

The Court delivered the following: JUDGMENT

Crl.a.No.683 2012

lN THE HIGH COURT FOR THE STATE OF'l' :LANGANA

AT HYDERABAD

THE HON'BLE SMT. JUSTICE TIRUMALA t):VI EADA

CRIMINAL APPEAL NO.583 OF2012

Date: 02.04.2025

Between:

Shaik Ghouse 46,1 ,s;;2n1

and

The State of A P., through

Sub-Divisional Police Officer,

Adilabad, Adilabad District, rep. by

Public Prosecutor, High Court of A P.,

Hyderabad. Res pondent

:JUDGMENT:

This criminal appeal is filed by the appe lant-Accused

aggrieved by the judgment dated 13.01'.2A1: passedtn

Sessions Case No.367 of 2011 by the learne: I Additional

Sessions Judge, Adilabad (for short'the trial Courl )

2. Vide the aforesaid judgment, the trial Cct rt found the

appellant guilty of the charge under Section l)04-B of the lndian

Penal Code (for short 'lPC') and accordingly, he

',r as convicted

and sentenced him to undergo rigorous inrpris: rment for a

c.l.,q-No,6E3-2012

period of 10 years and to pay a fine of Rs.2000/-, in defaultto

undergo simple imprisonment for a period of three months

3. The case of the prosecution is that, on 25 12.2008, the

marriage of accused was performed with the deceased, and

that at the time of marriage, her parents presented an amount

of Rs.40,000/- net cash, one tula of gold, and other household

articles. After marriage, the accused and the deceased lived

separately in a rented house at Kolipura locality of Adilabad

They were blessed with one son, and the accused began to

torture the deceased for want of an additional dowry of

Rs.15,000/-. However, her parents expressed their inability,

and the harassment continued. On 13.09.2010, the accused

picked up a quarrel with the deceased over a petty issue and

beat her, upon which the deceased, getting vexed with her life,

committed suicide by hanging. Thus, the accused is facing

charge under Section 304-8 of the IPC

4. After following due procedure, the case was committed to

the Sessions Court, and the I Additional Sessions Judge,

Adilabad heard the accused on the charge and conducted the

trial

arl,A.No.683 2012

5. During the trial, pWs.

1 to 12 were examin: J and Exs.p1

lo P14 and MOs 1 and 2 were marked on rehalf of the

prosecution, whereas none were examine<i on :ehalf of the

accused and no documents were marked.

6. Based on the evidence on record, thr: triel Court found

the appellant - accused guirty of the charge r,der Section

304-8 of IPC and accordingly convicted and sen.r nced him to

undergo rigorous imprisonment for a period of 1O ,ears

and to

pay a fine of Rs.2,000/-, in default, to unrl, rrgo simple

imprisonment for three months. Aggrleved i y the said

judgment of conviction and sentence, the Srresert appeal is

preferred.

7. Heard the submissions of Ms.S.Navya, learrEd counsel

representing Sri S.surender Reddy, rearned cour ser for the

appellant and Sri D.Arun Kumar, learned t\ddit r nal public

Prosecutor for the respondent_State.

8 The learned counsel for the appellant has su: nitted that

the prosecution could not prove the offence ir yainst the

accused beyond reasonable doubt, and that all arer interested

Crl.A,No 583-2012

wltnesses who spoke with regard to the harassment' There is

no independent witness examined in this case to prove the

offence against the accused, and that the accused never

harassed the deceased for want of additional dowry' The

parents of the deceased do not have such status to give any

dowry, and the allegation of giving dowry itself is false There is

no proof of harassment for want of dowry soon before her

death, in the absence of which the ingredients under Section

304-8 of IPC are not made out Once the ingredients under

304-8 IPC are not made out, no presumption can be drawn

underSection'113-BoftheEvidenceAct,andtheprosecution

has utterly failed to prove the guilt of the accused under 304-8

of lPC. The presumption drawn by the trial Court cannot be

sustained, as the foundational facts are not established by the

prosecution. She, therefore, prayed to acquit the accused and

set aside the judgment of conviction and sentence passed by

the trial court.

9. The learned Additional Public Prosecutor has submitted

that the evidence of PWs

,l

to 3 and PW5 clinchingly proves the

offence against the accused. PW5 is the house owner' who is

crr.A.No 68:t 2012

a third party and is no way related to the dec. tsed, and his

evidence itself shows that there washaras;nent by the

accused for want of additional dowry. The tr.ial c,: trt has rightly

appreciated the evidence on record and has r onvrcted the

accused; hence, he prayed to confirm the same.

10 Considering the above submissions, 1:he gr.rints that fall

for consideration in this appeal are:

1) Whether the charge under 304_8 >r lpC was

proved by the prosecution beryonri reasonable

doubt?

2)Whether the conviction an{J r;cntence of

imprisonment recorded by the trial (l :urt against

the appellant herein - accused ar€, sus:r inaOte] Ootn

on facts and in law?

3) To what relief?

11 POTNT NO.1

a) PW1/Sulthana is the mother of the deceasec. lt is elicited

from her that she performed the marriage of her d: r-rghter with

the accused in the year 200g by giving Rs.40,00Cr as dowry,

and presented one tura of gord, sirver, and other rrousehord

articles. After the marriage, they lived happily for sc rne time at

Kulipura locality of Adilabad. Out of the wecllock they were

5

Cd-A.1,1o.683-20I2

blessed with a son, after which the accused started harassing

the deceased, and he also kicked her out of the house with a

demand for additional dowry of Rs.15,000/-. Since then, the

deceased was forced to stay with them and she could not

satisfy the demand of additional dowry by the accused. Later

on, she convinced her daughter and sent her to the house of

the accused. After 15 to 20 days, one Zameel made a phone

call from Adilabad, informing that the deceased had committed

suicide by hanging herself in the house of the accused. lt is

further elicited that since they failed to satisfy the demand of

the accused for additional dowry, he subjected the deceased to

cruelty, and that is the reason she committed suicide. She gave

the complaint under Ex.P1

b) She admitted that after the death of the deceased, their

caste elders returned all the belongings of her daughter to her,

from the accused. She stated that she does not know whether

any money was paid by the accused on that day in the

presence of the elders, and whether her husband received any

amount from the accused. She denied the suggestion that the

deceased suffered from stomach pain and, due to unbearable

6

CrlA.No.683_2012

pain, committed suicide. She admitted that the rarents of the

accused were not living with them at Kulipura

c) PW2iTaslim is the sister of PW'l . Sl-re cc,r

-oborated

the

evidence of PW1. She admitted that the lisl of pr:sentations is

prepared at the time of marriage in their c:omnt tnity, but she

does not know about the said list of presentatiorr; made in the

marriage of the deceased with the accused.

d) PW3/Jameel Ahmed is a relative of PW1 His evidence

also corroborates the evidence of PW1 . lt is eli :ted from him

that the deceased was sent to her parental horr: for want of

additional dowry of Rs.15,000/- after the birlh of t re male child

and before the Ramzan festival in the y,-.ar 2)10, i.e.. on

13.09.2010, she was sent back to the house of the accused

after being convinced and after her parents ex rressed their

inability to pay the additional dowry. On the :hird day of

Ramzan, he heard the news of the decease,r committing

suicide by hanging herself

e) PW4/MA Hafeez is the sister-in-law of F,t/1 and her

evidence corroborates the evidence of

pW1

Cd.A.tlo.583 2012

8

0 PWS/Shami Khan is the house owner, where the accused

used to live along with the deceased. His evidence reveals that

the accused lived as a tenant along with his wife Once he

noticed that there was a quarrel between both of them, and he

warned them to vacate if they repeated such an incident. lt is

elicited from him that the deceased died by committing suicide

in the same house, in the portion of the accused. On the said

day, he was not in Adilabad, and on learning about the incident,

he returned and found the dead body of the deceased. Thus,

the evidence of the house owner aids the case of prosecution

to the extent that there were quarrels between the accused and

the deceased, and that the deceased committed suicide in the

house of the accused

S) PW6/Md.Khaleel is the photographer. ln his evidence,

Exs.P2 to P9 (the photographs) are marked

h) PW7/Muneer Khan is the cable operator and a witness

for the scene of offence Panchanama under Ex.P10, and

MO'l/nylon rope and MO2/red-colour chunni were recovered

from the scene of offence.

Cd.A.No-681,2012

i) PW8/Sunil Kumar Masade, the TahsilCar c cnducted the

inquest over the dead body of the deceased in ttr r presence of

PW7, as recorded under Ex Pl 1.

j) PW9/Dr B Shekar Rao is the doctor. He ,: rnducted the

autopsy over the dead body of the deceased er d issued the

PME under ExP12. His evidence reveal; tha there were

antemortem ligature marks measuring 25 cnrs in ength, with a

width of 1 to 1.5 cms, present over the front anc sides of the

neck, running obliquely just above the thyroi,l cart lage with the

knot just below the right mastoid process. lt is alr; > elicited that

the thyroid cartilage and hyoid were intact.

k) PW1O/Ch Natesh, PW11/AR Dlramo lhar, and

PW12lL.Satish Kumar are the investigating < fficers, who

deposed with regard to the mode of investigaton done by

them PW10 issued the FIR under Ex.P13. Ex.P'4, the rough

sketch, is marked in the evidence of PW11.

l) Thus, the evidence of PWs 1 to ti sh:ars that the

deceased was subjected to harassment by the accused for

9

want of additional dowry and that she conrmittr; I suicide by

C.l,A.No.6al 2012

t!

hanging herself in the house of the accused. There is no

explanation offered by the accused for the death of the

deceased in his house, and the accused was the only person

present in the house at the time of the alleged incident. When

he cannot offer any explanation for the death of the deceased,

and there is ample evidence to show that there was

harassment by the accused for want of additional dowry, the

only conclusion that can arise is that the deceased committed

suicide due to unbearable harassment for want of additional

dowry

m) Section 304-8 of IPC is extracted hereunder for the sake

of reference

"3048. 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 mar age and rt is

shown that soon before her death she was subjected to cruelty 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."

1t

Crl.A.No,683_2012

n) ln catena of cases viz., Kashmir Kaur v. State of

Punjabl and yogendra patsingh

v. Raghvendri Singh alias

Prince and anothef, tne Apex Court lras r:ld that the

essential rngredients to prove the offence under r: -.ction 304_8

of IPC are as follows

:11 ,

The main ingredient of the offence to be eslabtjs r

,ct

is thatsoon before the death or tne oefeisel ;# ;Xl; I )cted tocruelty and harassment in connection

'itn,

tt'e o"mani"oi ,o*ry.

b) The death of the deceased woman was caus€c cy any

::*"::

*0,,, inlury or some other circrrstanc-e"rltoi, ,". not

c) Such death occurs within seven years from the d,t _. of hermarriage.

d) That the vrctim was subjected to cruelty or haras.; r_.nt byher husband or any relative ot her husband

e) Such cruelty or harassment should be for or.in ccr rectionwith demand of dowry

.f] l

should be established. that such cruelty ard harr ismentwas made soon before her death

g) The expression (soon

before) is a relativer tern and itwould depend upon circumstances of each case I cl nostraightjacket formula can be laid down l-.' ,o"=ir.nri, ,or,oconstitute a period of soon before the o."rii".I"l

h) lt would be hazardous to indicate any fixed p()riod

"

r o thatbflr,gs in the importance of a oroxtmity test both for the pro ) of an

gffelce

9l !9wV

death as wett as for raising a presu.nptio,r

_rnderSection 1 138 of the Evidence Act.

i) Therefore. the exoression

..soon

before,, would .r ) llally

tmply that the interval should not be much between the con: rrned

::l]^".ly-

.-, harassment and the death in qr"rion. inJl.l",.i ,t o"exrstence of a proxrmate or tife tink b.tu;;;l;; #.I","o,,. ,"rtybr.:d gn dowry demand and the .";;;;";;;;;. rn )ther

y$:i;

X#"r,o

not be remore in port oi t_.'iioiilruty r., ,ru it

'20t3 (rj) scc olz

'2025 INsc li67

crl.a.No.583 2012

t2

j) However, the expression "soon before" should not be

given a narrow meaning which would otheMise defeat the very

purpose of lhe provisions of the Act and should not lead to absurd

results.

k) Section 3048 is an exception to the cardinal principles of

criminal jurisprudence that a suspect in the lndian Law is entitled

to the protection of Article 20 of the Constitution, as well as, a

presumption of innocence in his favour. The concept of deeming

fictron is hardly apphcable to criminal jurisprudence but in

contradistinctron to this aspect of criminal law, the legislature

applied the concept of deeming fiction to the provisions of Section

3048

l) Such deeming fiction resulting in a presumption is,

however, a rebuttable presumption and the husband and his

relatives, can, by leading their defence prove that the ingredients

of Section 3048 were not satisfied.

m) The specific srgnificance to be attached is to the time of the

alleged cruelty and harassment to which the victim was subjected

to, the time of her death and whether the alleged demand of

dowry was in connection with the marriage. Once the said

ingredients were satrsfied it wrll be called dowry death and by

deemed fiction of law the husband or the relatives will be deemed

to have commifted that offence."

o) ln the present case, the marriage of deceased with the

accused was performed on 25.12.2008, the death occurred on

13.09.2010 i.e. within seven years of marriage. There are

incidents of harassment by the husband for want of additional

dowry. The deceased was sent to her parental home for want

of additional dowry. She was convinced by her parents and

sent back to the matrimonial house, after which the said

incident of committing suicide occurred. The cause of death is

due to asphyxia from hanging, as elicited from the PME report

given by PWg. thus, the death occurred under other than

Crl.A-No.683 2012

t1

natural circumstances. Thus, all the circumstar :es prove the

ingredients under Section 304-8 of lpC.

p) Hence, the prosecution could prove the rffence under

Section 304-8 of lPC, and a presumption under iection 113-B

of the Evidence Act is raised against the accuser lt is for him

to rebut the presumption, but no evidence u/as e( duced by the

accused in his defence. However, the appellarr counsel has

argued that the harassment soon before her Ceath is not

proved by the prosecution. There is no streright j tcket formula

as to what would constitute the period of

.sort

r before her

death". There is ample evidence on recorrj to s row that the

deceased was driven out of the house for wan: of addiilonal

dowry, for which reason she was staying at lrer p,a.ents, house.

The evidence of PWs 1 to 4 shows that she vyas er1 her parental

house, as she was necked out by the accused, tnd that she

was convinced by her parents and sent back to the rnatrimonial

home. After sending her back to the matrimr:nial rome, within

15 to 20 days, they received a call thrat th r deceased

committed suicide by hanging.

crl.A.No.683_2012

14

q) The evidence of PW5, the house owner, also throws light

upon the fact that there was a quarrel between the wife and

husband, and that he warned the accused that they had to

vacate the house in case such an incident was repeated

r) There is no explanation offered by the accused for the

death of the deceased, in his own home, and there is ample

evidence regarding the harassment made by the accused for

want of additional dowry. There was no other person at home

apart from the accused and their infant son at the relevant time.

It is also evident that she was driven out of the house and sent

back to her parental home and that she was sent back to the

accused just 15 days prior to her death. Thus it is proved that

she was subjected to cruelty for want of additional dowry.

Hence, the offence under Section 304-8 of IPC against the

accused is proved beyond reasonable doubt by the

prosecution. Point No.1 is answered accordingly

12. POINT NO.2:

a) ln view of the finding arrived at point No.1, it is held that

the trial Court has rightly convicted the accused.

Crl.A.No.58l 2012

15

b) With regard to sentence, the learned ccrr I'lSel for the

appellant has submitted that the appellant ir; mitl lie aged and

has prayed to consider his case in a len ent v ay so as to

reduce the quantum of sentence. He also proint<: I out that the

appellant has been roaming around the Cotrrts fc'.the past 15

years and therefore, he has been facing mental t carcerate for

15 years.

c) Considering the above said submissiors, it s opined that

the sentence can be reduced to seven years to I eet the ends

of justice. Point No 2 is answered accordingly

13. POINT NO.3:

ln the result, the Criminal Appeal is partly , rllowed. The

conviction of the appellant - accused for the < ffence under

Section 304-8 of IPC is confirmed. Howt:ver he sentence

imposed for the offence under Section 304-Ei of lr C is modified

and reduced to seven years of rigorous irnprisc nment, while

confirming the fine amount with default se'l ence. The

appellant -

accused shall be entitled to set-off t nder Section

428 Cr.P.C. for the period of detention, if any, already

undergone.

Crl.A.No.6a3-2012

l6

As a sequel, miscellaneous petitions, if any filed in this

appeal, shall stand closed.

SD/. M.MANJULA

JOINT REGISTRAR

//TRUE COPY//

SECTION OFFICER

'1 . The I Additional Sessions Judge, Adilabad.(with records, if any)

2. The Judicial Magistrate of First Class, Adilabad.

3. The Superintendent, Central Prison, Warangal, Warangal District.

4. Two CCs to the Public Prosecutor, High Court for the State of Telangana at

Hyderabad. [OUT]

5 One CC to Sri S. Surender Reddy, Advocate [OPUC]

6. Two CD Copies

KAM/PSL

AW

To,

G

HIGH COURT

DATED: 0210412026

JUDGMENT

CRLA.No.683 of 2012

PARTLY ALLOWING

THE CRIMINAL APPEAL

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