2025 Supreme(Online)(TEL) 3457

HIGH COURT FOR THE STATE OF TELANGANA CRIMINAL APPEAL NO.57 OF 2020 Between:

Shaik Jaleel, S/o Shaik Pasha, 27 years, Tractor Driver, C/Muslim, R/o.Bajireddy Colony, Pothangal, Kotagiri Mandal, Nizamabad District.

.. Appellant /accused No.1.

Vs.

The State of Telangana rep. by its Public Prosecutor, High Court Buildings, High Court, Madina Centre, Hyderabad.

.. Respondent/complainant JUDGMENT PRONOUNCED ON: 11.03.2025 THE HONOURABLE SRI JUSTICE K.SURENDER AND THE HONOURABLE SRI JUSTICE E.V.VENUGOPAL

1. Whether Reporters of Local newspapers Yes may be allowed to see the judgment?

2. Whether the copies of judgment may be Yes marked to Law Reporters/Journals

3. Whether his Lordship wishes to Yes see the fair copy of the judgment?

________________________ JUSTICE K.SURENDER ___________________________ JUSTICE E.V.VENUGOPAL * THE HONOURABLE SRI JUSTICE K.SURENDER AND THE HONOURABLE SRI JUSTICE E.V.VENUGOPAL + CRIMINAL APPEAL NO.57 OF 2020 % DATED 11^th March, 2025 # Between:

Shaik Jaleel, S/o Shaik Pasha, 27 years, Tractor Driver, C/Muslim, R/o.Bajireddy Colony, Pothangal, Kotagiri Mandal, Nizamabad District.

.. Appellant /accused No.1.

Vs.

The State of Telangana rep. by its Public Prosecutor, High Court Buildings, High Court, Madina Centre, Hyderabad.

.. Respondent/complainant

! Counsel for the Appellant : Mr.G.Jaya Reddy ^Counsel for Respondent : Mr.Arun Kumar Dodla, Additional Public Prosecutor ? CASES REFERRED :

THE HONOURABLE SRI JUSTICE K.SURENDER AND THE HONOURABLE SRI JUSTICE E.V.VENUGOPAL CRIMINAL APPEAL No.57 of 2020

JUDGMENT:

(Per Hon’ble Sri Justice K.Surender)

This Criminal Appeal is filed by the appellant/accused No.1, aggrieved by the judgment dated 19.11.2019, in S.C.No.223 of 2015, on the file of the VII Additional District and Sessions Judge, Bodhan, Nizamabad District, whereby the appellant was convicted for the offences punishable under Sections 304-B, 498-A, 302, and 201 of the Indian Penal Code (for short ‘IPC’).

2. The case of the prosecution is that the appellant was married to Sadiya Begum (hereinafter referred to as ‘the deceased’), in the month of April, 2014. At the time of marriage, gold articles and Rs.70,000/- were given towards dowry. Two months after the marriage of appellant and deceased, accused No.2 started making allegations that the deceased was having an affair with her father-in-law, for which reason, the deceased was taken back to the house of PW.1 (mother of the deceased). 25 days after the deceased was taken to the house of PW.1, the accused Nos.1, 2, and other relatives went to the house of PW.1 and asked PW.1 to send the deceased back. However, the deceased refused to join them since the appellant attributed unchastity to the deceased. When the appellant undertook to live separately in a rented house, the deceased was sent along with the appellant, and they started living in the rented premises in the house of PW.5. There was a demand for additional dowry of Rs.50,000/- by the appellant for the purpose of going to Dubai. On 19.01.2015, the deceased and the appellant attended a function at Rudrur Village, and on the next day, they went to the rented house. On 20.01.2015 at about 8.00 P.M., PW.1 received a phone call from the deceased, who stated that she was never happy with her husband, and the call was disconnected by the appellant. On the same day, at midnight, one Ameer Rasool, who is a neighbor of the deceased, informed PW.1 that the deceased was found dead lying on the cot. Immediately, PW.1 and others went to the rented premises of appellant and deceased in the house of PW.5 and they found the deceased dead with injuries on her throat. PW.1 suspected that the appellant had throttled the deceased and accordingly, she lodged a Telugu written complaint on the next day, i.e., 21.01.2015 at 9.00 A.M. The complaint was received by PW.13 and after issuing the FIR, investigation was handed over to PW.15. PW.15 went to the scene of offence, conducted the inquest panchanama, and a rough sketch was drawn at the scene, and thereafter, the dead body was sent for the post-mortem examination. PW.12 conducted the autopsy and found the following injuries: i) Abrasion on the left side of chest below the collar bone;

ii) Abrasion over right side of the chest just below collar bone;

iii) Diffused contusion of 15 x 16 cms., present in front on neck; and iv) All ribbon muscles of neck are grossly contused.

According to the opinion of PW.12, the cause of death was due to “asphyxia due to strangulation”.

3. On the basis of the evidence collected during the course of investigation, the charge-sheet was filed against the appellant, who is arrayed as accused No.1, and against the mother of the appellant, who is arrayed as accused No.2.

4. The learned Sessions Judge, convicted the appellant/accused No.1 for the offence under Section 304-B of IPC and sentenced him to undergo imprisonment for life and also convicted him under Sections 498-A, 302, and 201 of IPC. The learned Sessions Judge observed that in view of the conviction under Section 304-B of IPC, it is unwarranted to convict the appellant under Section 302 of IPC.

5. Learned counsel appearing on behalf of the appellant would submit that the neighbors/PWs.3 and 4, turned hostile to the prosecution case, and PW.5 stated in his chief- examination that some unknown persons must have killed the deceased. There is no direct evidence about the involvement of the appellant and in fact, the appellant was not present when the alleged incident had taken place.

6. On the other hand, the learned Assistant Public Prosecutor argued that the findings of the learned Sessions Judge are based on record and reasonable.

7. The prosecution mainly relied on the evidence of PWs.1 and 2 to prove the alleged harassment of the appellant for additional dowry. PW.1 stated that on the date of the incident, she received a phone call from the deceased around 8.00 P.M., and the deceased informed that the appellant was harassing her. However, the said phone call was disconnected.

8. The defence of the appellant is one of denial. The prosecution has not filed any proof to show that there was a phone call by the deceased to PW.1 on the date of incident, either at 8.00 P.M. or at 12.00 A.M. The said phone calls, which are mentioned by PW.1, would tend credibility to connect the appellant to the crime. In the complaint filed by PW.1, it is stated that around 08.00 P.M. on 20.01.2015, a phone call was made to PW.1 through the cell phone of the deceased, and on the intervening night of 20/21.01.2015, a phone call was made from the cellphone of the appellant informing that the deceased died. The prosecution did not file any evidence about the phone calls that were made at 8.00 P.M. or at 12.00 A.M to PW.1. Not producing any evidence regarding the said phone calls would have an adverse impact on the prosecution case since the complaint was filed at 09.00 A.M., on the next day. There is no explanation given either by PWs.1 and 2 or by the prosecution regarding the reason for the delay of 9 hours in lodging the complaint. Even according to PW.1, they went to the place of offence after receiving information at 12.00 A.M., and found the body of the deceased. It is for the prosecution to explain why the complaint was not lodged immediately after the information was received by PW.1 regarding the death of the deceased or after the dead body was found.

9. The FIR was registered on 21.01.2015 at 09.00 A.M., and the FIR reached the concerned Court at about 4.30 P.M. There is again a delay of 7½ hours in FIR reaching the Court. It is for the prosecution to explain firstly, the delay in lodging the complaint, and secondly, the delay in FIR reaching the Court. In the absence of any explanation by the prosecution for the said delay, the inference of making false recitals in the complaint after due deliberations, cannot be ruled out. The delay ought to have been explained by the prosecution, failing which, there cannot be any credibility to the allegations made in the complaint.

10. The neighbors/PWs.3 and 4 have turned hostile to the prosecution case. PW.4 denied the suggestion put to him that he informed PW.1 about the death of the deceased. The Investigating Officer/PW.15 admitted in his cross- examination that none of the neighboring witnesses of accused No.2 were examined.

11. The motive as suggested by the prosecution is that the deceased was living an unchaste life and accused No.2 was attributing such unchastity to the deceased. Though PW.1 speaks about both the appellant and the deceased attending the function on 19.01.2015 in the afternoon, and that they later went to the rented premises, where the dead body was found, however, not a single witness was examined to show that the appellant was with the deceased from the function on 19.01.2015 till the dead body was found on the intervening night of 20/21.01.2025.

12. As already discussed, the prosecution failed to file proof of any calls being made to PW.1, either from the phone of the deceased or the appellant. The allegation made in the complaint regarding additional dowry is that the appellant

1 0 wanted to go to Dubai for which reason he demanded an amount of Rs.50,000/-. Every demand that is made will not fall within the definition of dowry as defined under Section 2(d) of the Dowry Prohibition Act, 1961. Even according to PWs.1 and 2, the appellant demanded Rs.50,000/- for the purpose of going to Dubai. The alleged demand for Rs.50,000/- for travel to Dubai cannot be said to have been made towards additional dowry or towards consideration for marriage. Such demand would not fall within the definition of dowry under Section 2 (d) of the Dowry Prohibition Act, 1961. Further, the prosecution has to prove that pursuant to any such demand being made, there was some harassment to meet such demand. Firstly, the demand cannot be associated with a dowry demand, and secondly, there must have been some harassment inflicted upon the deceased by the accused. In the present facts of the case, the demand for Rs.50,000/- would not fall within the ambit of Section 304(B)

of IPC.

“304-B. 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

1 1 marriage and it 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 purpose 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.”

13. The following are the essential ingredients of Section

304-B:

a) The death of a woman must have been caused by burns or bodily injury or must have occurred otherwise than under normal circumstances;

b) The death must have occurred within seven years of her marriage;

c) Soon before her death, she must have been subjected to cruelty or harassment by her husband or his relatives; and d) Such cruelty or harassment must have been for or in connection with any demand for dowry.

1 2

14. As already discussed, the prosecution could not prove that the appellant was in the company of the deceased after they left from the function. None of the neighbors supported the prosecution version, and there is no evidence on record to show that the appellant and the deceased had gone together to the rented premises and the appellant left the rented premises in the midnight of the date of incident. In the absence of any such evidence, the finding of the learned Sessions Judge, that the burden is on the appellant to prove the death of the deceased is incorrect. To draw the presumption under Section 106 of the Indian Evidence Act, the burden has to be shifted on to the accused, and the burden will only shift once the prosecution has discharged its burden. Once the prosecution fails to discharge its initial burden to prove the presence of the appellant in the house when the incident had taken place, the shifting of burden on the accused does not arise.

15. As seen from the judgment, the learned Sessions Judge having convicted the appellant under Section 304-B of IPC, has found that once conviction is recorded under Section

1 3

304-B of IPC, a conviction under Section 302 of IPC is unwarranted. The said finding of the learned Sessions Judge is incorrect. The offence under Section 302 of IPC is a serious offence when compared to Section 304-B, dealing with dowry death. Section 304-B of IPC contemplates unnatural death or death other than under normal circumstances. However, if the evidence in a case points towards the guilt of the appellant under Section 302 of IPC, the conviction should be under Section 302 of IPC. The said finding of the learned Sessions Judge, to the extent that a conviction under Section 302 of IPC is unwarranted in view of conviction under Section 304-B of IPC, is incorrect and hereby set aside.

16. Since the prosecution has failed to satisfy the ingredients of Section 304-B of IPC, the conviction under Section 304-B of IPC is set aside. As already discussed, the prosecution failed to prove that it was the appellant who had caused the death of the deceased.

17. Accordingly, this appeal is allowed by setting aside the judgment dated 19.11.2019, in S.C.No.223 of 2015, on the

1 4 file of the VII Additional District and Sessions Judge, Bodhan, Nizamabad District .The appellant/accused No.1 is acquitted for the said offences and he shall be set at liberty, if he is not required in any other case. The fine amount paid, if any, shall be returned.

Miscellaneous Petitions pending, if any, shall stand closed.

____________________

K.SURENDER, J _____________________

E.V.VENUGOPAL, J Note: Mark LR Copy Date: 11.03.2025 B/o.PNS

1 5 THE HONOURABLE SRI JUSTICE K.SURENDER AND THE HONOURABLE SRI JUSTICE E.V.VENUGOPAL CRIMINAL APPEAL No.57 of 2020 Dated 11.03.2025 PNS

>Head Note:

! Counsel for the Appellant : Mr.G.Jaya Reddy ^Counsel for Respondent : Mr.Arun Kumar Dodla, Additional Public Prosecutor ? CASES REFERRED :

THE HONOURABLE SRI JUSTICE K.SURENDER AND THE HONOURABLE SRI JUSTICE E.V.VENUGOPAL CRIMINAL APPEAL No.57 of 2020