THE HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY
AND
THE HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY
Criminal Appeal No.1181 of 2013
JUDGMENT (per Hon'ble Sri Justice A. Venkateshwara Reddy):
1. This Criminal Appeal is preferred by the appellants/ accused Nos.1 to 4 against the judgment dated 29.10.2013 in Sessions Case (SC) No.217 of 2012 on the file of the learned IX Additional District and Sessions Judge (Fast Track Court), Ranga Reddy at L.B. Nagar, wherein the accused 1 to 4 were found guilty for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (for short 'IPC') and sentenced to undergo imprisonment for life and also to pay a fine of Rs.1,000/- each and in default, to undergo simple imprisonment of three months.
2. From the date of judgment in SC No.217 of 2012 i.e., from 29.10.2013, the accused 1 to 4 are in jail as convict prisoners. That on 29.07.2022 during hearing, the learned counsel for appellants has filed the proceedings dated 17.03.2022 of the Superintendent of Central Prison, Page 2 of 25 AVR,J & GAC,J Crl.A.No.1181 of 2013 Charlapally wherein and whereunder it is mentioned that on 20.08.2020 when the accused No.1/appellant No.1 complained breathlessness and chest pain, as per the medical advice, he was shifted to Osmania General Hospital for better treatment and on the same day received telephonic message from the hospital stating that the appellant No.1/accused No.1 died. Accordingly, the said fact is recorded, and as per the proceedings dated 17.03.2022 of the Superintendent of Central Prison, Charlapally the case against the appellant No.1/ accused No.1 is abated. Thus, this Criminal Appeal is proceeded only against the appellants/accused 2 to 4.
3. Briefly stated the prosecution version as unfolded during trial is as follows:
The deceased-Srinivas Reddy is the husband of PW.1. The deceased and accused 1 to 4 are known to each other since long time and they are residents of Ramaraonagar, Borabanda within the limits of Sanathnagar Police Station. At the request of accused 1 to 4, the deceased has arranged an amount of Rs.2 lakhs as loan from one known Page 3 of 25 AVR,J & GAC,J Crl.A.No.1181 of 2013 person, but the accused have failed to repay the said loan. As a result, the person who arranged the hand loan started visiting the house of deceased insisting for repayment of the loan amount. Despite repeated demands, the accused 1 to 4 have been postponing the repayment under one pretext or the other. Finally on 01.10.2008 the deceased went to the house of accused with a demand for repayment of the loan mount, but they failed to repay the said amount. The deceased did not leave the house of accused, insisting repayment of the amount and on that the accused came to the house of deceased and asked PW.1 (wife of the deceased) why she sent her husband to their house, as such they remained at the house of PW.1 till 1:00 a.m. on 02.01.2008. During that night, the deceased did not return to his house. That on 02.10.2008 at about 6:00 a.m. PW.1 came to know through her relatives that her husband died at the house of accused No.1 and his dead body was hanging to the railing of the house of accused. As such, she gave a report to the police alleging that her husband died due to the harassment and abetment by A.1, his wife and sons i.e., the accused 1 to 4, and requested for taking Page 4 of 25 AVR,J & GAC,J Crl.A.No.1181 of 2013 necessary action against the accused 1 to 4. On the report lodged by PW.1, the Station House Officer, Sanathnagar Police Station has registered a case in Crime No.423 of 2008 for the offence punishable under Section 306 of IPC.
4. In the course of investigation, witnesses were examined, panchnama was conducted at the scene of offence, inquest was held over the dead body of deceased in the presence of panch witnesses and the dead body of deceased was subjected to post-mortem examination. The Doctor-PW.11, who conducted autopsy over the dead body of deceased, has issued Ex.P.7 post-mortem examination report opining that the death of deceased is due to Asphyxia, as a result of homicidal hanging. Thereupon, the section of law is altered from 306 IPC to 302 IPC. The investigation discloses that on 01.10.2018 in the night the deceased went to the house of accused with demand for repayment of loan amount of Rs.2 lakhs arranged by him, but they failed to repay the said amount, abused and beat him. The deceased did not leave the house of accused insisting for repayment of the loan amount, on that the Page 5 of 25 AVR,J & GAC,J Crl.A.No.1181 of 2013 accused also went to the house of PW.1, quarrelled with her alleging that why she sent the deceased to their house and remained at her house till 1:00 a.m. on 02.10.2008. By 06:00 a.m. on 02.10.2008 PW.1 received information that the deceased was found dead hanging to the railing of the house of accused with a rope. During the night of 02.10.2008 all the accused 1 to 4 killed the deceased by way of hanging with a rope to the railing of their house. Thus, the accused 1 to 4 have committed the offence punishable under Section 302 read with Section 34 IPC.
5. It appears that after giving necessary copies as required under Section 207 of the Criminal Procedure Code, 1973 (for short 'Cr.P.C.'), the case was committed by the learned Magistrate to the Court of Sessions. The learned Sessions Judge registered a case, vide SC No.217 of 2012 and made over to the learned IX Additional Sessions Judge (FTC), Ranga Reddy at L.B. Nagar, who after hearing the parties framed the charges for the offence punishable under Section 302 read with Section 34 IPC, to which the appellants pleaded not guilty and claims to be Page 6 of 25 AVR,J & GAC,J Crl.A.No.1181 of 2013 tried. On this, the prosecution has examined as many as 12 witnesses and got marked Exs.P.1 to P.7 and MO.1. In the cross-examination of PWs.1 & 2, Exs.D.1 to D.4 are marked which were confirmed by the Investigating Officer.
6. The relevant oral and documentary evidence was put to the accused under Section 313 of Cr.P.C. In reply to the question Nos.4, 5, 6, 8 and 9, all the accused have answered that the dead body of the deceased was found lying at their house, panchnama was conducted, the MO.1- rope was seized and rest of the prosecution case is false. The trial Court after hearing both the parties, found the appellants/A.1 to A.4 guilty of the charge for the offence punishable under Section 302 read with Section 34 of IPC, convicted and sentenced them to undergo imprisonment for life and also to pay a fine of Rs.1,000/- each and in default to undergo simple imprisonment of three months. Assailing the said judgment dated 29.10.2013 in SC No.217 of 2012, this criminal appeal is preferred by the appellant/accused 1 to 4.
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7. Heard the learned counsel for the appellants/accused 2 to 4 and the learned Public Prosecutor. Perused the material available on record. The detailed submissions made on either side have received due consideration of the Court. The learned counsel for the appellants also submitted a brief note with synopsis and relied on the following decisions:
i) Gargi v. State of Haryana1;
ii) Reena Hazarika v. State of Assam2;
iii) Raj Kumar Singh alias Raju alias Batya v.
State of Rajasthan3; and
iv) State of Punjab v. Sucha Singh and others4.
8. The prosecution in all examined PWs.1 to 12 to unfold their case against the appellant/accused. Out of them, PW.1 is the wife of deceased. She has lodged Ex.P.1- report before the police. PW.2 is the daughter of deceased, whereas PWs.3 and 4 are brothers of PW.1. PWs.5, 6, 8 and 9 are circumstantial witnesses of whom PW.9 is the 1 (2019) 9 SCC 738 2 AIR 2018 SC 5361 3 AIR 2013 SC 3150 4 2003 CRI.L.J. 1210 Page 8 of 25 AVR,J & GAC,J Crl.A.No.1181 of 2013 tenant of accused in the first floor of their house. PW.7 is a panch witness for the scene of offence panchnama, the rough sketch and inquest panchnama which are marked as Exs.P.2 to 4 respectively. PW.11 is the Doctor, who conducted autopsy over the dead body of deceased and issued Ex.P.7 post-mortem examination report. PWs.10 and 12 are the investigating officers, who issued FIR, investigated into and filed the charge sheet. Ex.P.1 is the report lodged by PW.1. Exs.P.2 to P.4 are the scene of offence panchnama, the rough sketch of the scene of offence and inquest panchnama respectively. Ex.P.5 is the First Information Report. Ex.P.6 is the alteration memo whereunder section of law is altered from 306 of IPC to 302 of IPC. Ex.P.7 is the post-mortem examination report. Ex.D.1 is the disputed portion of Ex.P.1, which is marked in the cross-examination of PW.1. Similarly, Ex.D.2 is part of Section 161 of Cr.P.C. statement of PW.1. Exs.D.3 and D.4 are part of Section 161 Cr.P.C. statement of PW.2. When these statements were confronted to the Investigating Officer-PW.12, he has admitted that PWs.1 Page 9 of 25 AVR,J & GAC,J Crl.A.No.1181 of 2013 and 2 have stated as in Exs.D.1 to D.4 before him. MO.1 is the rope that was used for commission of offence.
9. PW.1 is the de facto complainant and wife of deceased. She gave Ex.P.1 report to the police wherein it is mentioned that her husband has arranged loan of Rs.2 lakhs to the accused. At the time of taking loan, they have promised to repay the same within six months, but they failed to do the same, thereby her husband has demanded the accused for repayment of the said amount, but the accused failed to repay the same. That on 01.10.2018 the deceased went to the house of accused with demand for repayment of the amount, they abused him and beat him without paying the amount and when the deceased did not leave their house, the accused came to the house of PW.1 at about 10 p.m. on 02.10.2008 and abused her stating why she sent the deceased to their house and all the accused have quarrelled with her, remained at her house till 01:00 a.m. in the night. Thereafter, at about 6 a.m. on 02.10.2008 she came to know through her relations that her husband is found dead, she went to the house of Page 10 of 25 AVR,J & GAC,J Crl.A.No.1181 of 2013 accused and found the dead body of her husband hanging with rope to the railing to the house of accused. She suspected that the accused might have killed her husband to avoid repayment of the said loan amount. PW.1 has supported the prosecution case. However, in her evidence Ex.D.1 is marked in Ex.P.1 report lodged by her wherein it is mentioned that the accused might have killed her husband to avoid repayment of the said loan amount. Similarly, Ex.D.2 is marked in her Section 161 Cr.P.C. statement which is to the effect that she stated before the police, that the deceased has committed suicide by hanging himself to the railing near steps at the house of accused and died.
10. PW.2 is the daughter of PW.1 and the deceased. She has supported the oral evidence of her mother-PW.1. However, in her cross-examination Exs.D.3 and D.4 are marked which are part of her Section 161 Cr.P.C. statement. Ex.D.3 is to the effect that deceased went to the house of accused for money and had a heated discussion with them and the accused have threatened Page 11 of 25 AVR,J & GAC,J Crl.A.No.1181 of 2013 him, thereby, being sensitive, he committed suicide. Ex.D.4 is to the effect that on 0.10.2008 the accused No.1 and his family members came to her house and warned PW.1. However, when Exs.D.1 to D.4 were confronted to the Investigating Officer-PW.12, he has stated that PW.1 has mentioned as in Ex.D.1 in her report-Ex.P.1 and she has also stated as in Ex.D.2 in her 161 Cr.P.C. statement recorded by him. Similarly, PW.12 confirmed that PW.2 has stated before him as in Exs.D.3 and D.4. The Exs.D.1 to D.4 are important and vital contradictions going to the root of the prosecution case. As per Ex.D.1, PW.1 has mentioned in Ex.P.1 that she is suspecting that the accused might have killed the deceased to avoid repayment of loan amount. Similarly, Exs.D.1 to D.4 only shows that due to the pressure and conduct of the accused, the deceased has committed suicide. Thus, as per the earliest version of PW.1 in her Ex.P.1 report, she suspected that, the accused might have killed the deceased to avoid repayment. Further, as per Exs.D.2 to D.4, PWs.1 and 2 have stated to the police that due to pressure and conduct of the accused, the deceased committed suicide. Page 12 of 25
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11. PWs.3 and 4 who are the brothers of PW.1 and brother-in-law of deceased have only spoken through about the deceased arranging Rs.2 lakh loan to the accused and their failure to repay the said amount. On that the deceased demanded for repayment, on 01.10.2008 the deceased went to the house of accused with such demand and that on 02.10.2008 the dead body of the deceased was found hanging to the house of accused.
12. Similarly, PWs.5, 6 and 8 are independent circumstantial witnesses. They have simply stated that they came to know that the accused borrowed money from the deceased and failed to repay the said amount. They found the dead body of the deceased at the house of the accused. PW.9 is a tenant of the accused in the first floor of their house. He has stated that one day prior to the death of deceased, he found the deceased quarrelling with the accused with a demand for payment of money. On the next day, the dead body of the deceased was found hanging to the roof of house of accused.
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13. Thus, on a careful appreciation of the oral evidence of PWs.1 to 6, 8 and 9, there is no direct evidence. PW.1 is the wife and PW.2 is the daughter, there are material contradictions in their evidence which goes to the root of the prosecution case. PWs.3 and 4 have only spoken through about the deceased arranging loan to the accused and their failure to repay the said amount. PWs.5, 6 and 8 have simply supported the version of PWs.3 and 4 as to the accused borrowing Rs.2 lakhs through the deceased and their failure to repay the said amount, in spite of the repeated demands. PW.7 is a panch witness for the scene of offence panchnama-Ex.P.2, rough sketch of scene of offence-Ex.P.3, inquest panchnama-Ex.P.4 and also for seizure of MO.1-rope. His evidence remained consistent throughout the cross-examination.
14. It is pertinent to mention that the prosecution case is totally depending on the circumstantial evidence and there is no direct eye witness to the occurrence of the incident. According to PWs.1 & 2, the deceased went to the house of accused in the evening of 01.10.2008 with demand for Page 14 of 25 AVR,J & GAC,J Crl.A.No.1181 of 2013 repayment of the amount and remained at their house itself and that the accused came to the house of PW.1, at about 10:00 p.m. questioned her as to why she sent the deceased to their house and that they left the house of PW.1 at about 1:00 a.m. on 02.10.2008. Thereafter, at about 6:00 a.m. on 02.10.2008 PWs.1 & 2 came to know about the death of deceased and found his dead body hanging to the railing near the stair case of the house of accused.
15. From the above discussion, it is crystal clear that PWs.1 & 2 and other witnesses have consistently stated that the dead body of deceased was found hanging to the railing at the stair case outside the house of accused. PW.7 is a panch witness for scene of offence and rough sketch wherein it is clearly a delineated that stair case is from the outside of the house of accused and the dead body of deceased was found hanging to the railing hook of the house of accused. The police have conducted scene of offence panchanama as in Ex.P.2, rough sketch as in Ex.P.3 and inquest as in Ex.P.4. In Ex.P.2, panch Page 15 of 25 AVR,J & GAC,J Crl.A.No.1181 of 2013 witnesses have opined that the deceased might have hanged to death by committing suicide and the police have also seized the rope-MO.1. In the inquest panchanma column Nos.X, XI and XV, it is clearly mentioned that as the accused failed to repay the said amount and quarrelled with the deceased and harassed him, having vexed with the life the deceased committed suicide by hanging.
16. Thus, the prosecution only relied upon circumstantial evidence and also on the principle of 'last seen theory'. As per Exs.D.2 to D.4 and also as per Ex.P.2 and P.4 initially PWs.1 & 2 and the panch witness for inquest and scene of offence have opined that the death of deceased is suicide by hanging and it is not a homicide. It is only on receipt of Ex.P.7-post-mortem examination report, the section of law is altered under Ex.P.6 from 306 of IPC to 302 of IPC.
17. The learned counsel for the appellants vehemently contends that homicide by hanging is a rare phenomenon. Usually in such a case, hyoid bone would be found broken and in the present case, hyoid bone is intact, there are no Page 16 of 25 AVR,J & GAC,J Crl.A.No.1181 of 2013 such injury marks on vital parts of the body of the deceased, hence it is not a case of strangulation and that the scene of offence is accessible to everybody and unless the prosecution has discharged the initial burden, the principle of 'last seen theory' cannot be applied and the principle laid under Section 106 of the Indian Evidence Act, 1872 (for short 'Evidence Act') also cannot be pressed into service and that any amount of suspicion as mentioned in Ex.D.1 in the report-Ex.P.1 cannot take place of proof and the prosecution has failed to establish the guilt of accused for the said offence punishable under Section 302 of IPC and that the accuse are entitled for benefit of doubt.
18 i). In Gargi's case (1st supra), the Apex Court while dealing with medical jurisprudence to ascertain whether asphyxia/throttling/strangulation/hanging is cause of death and such death is suicidal or homicidal laid down certain principles and also held that there is no absolute rule in medical jurisprudence that in all cases of strangulation, hyoid bone would invariably be fractured. Page 17 of 25
AVR,J & GAC,J Crl.A.No.1181 of 2013 Further held that it would be unsafe to rely upon circumstantial evidence unless such circumstances form a complete chain ruling out any other hypothesis except the guilt of the accused. Insofar as 'last seen theory' is concerned, it is held that the approach of the Court below relying on the assumption under Section 106 of Evidence Act is not free from error and such theory cannot be operated against the accused merely because she was the wife of deceased and was living with him and held that the gap between point of time when the accused and deceased were last seen together and when the deceased was found dead had not been that small and that the possibility of any other person being the author of crime rendered totally improbable.
ii). In Reena Hazarika's case (2nd supra), the Hon'ble Supreme Court of India dealt with the circumstantial evidence whereunder the principles laid under Section 106 of Evidence Act with reference to burden of proving fact "especially within knowledge of accused" has to be invoked and held that mere invocation of last Page 18 of 25 AVR,J & GAC,J Crl.A.No.1181 of 2013 seen theory without facts and evidence would not shift onus upon accused under Section 106 of Evidence Act unless prosecution first establishes prima facie case.
iii). In Raj Kumar Singh's case (3rd supra), the Apex Court has reiterated the well settled principle that suspicion, however grave, it may be, cannot take the place of proof.
iv). In State of Punjab's case (4th supra) the Apex Court dealt with the contradiction between ocular and medical evidence as to the number of injuries on the deceased and held that when the presence of the eye witness is doubtful, the accused is entitled for acquittal.
19. PW.11 is the Doctor who conducted autopsy over the dead body of deceased and Ex.P.7 is the post-mortem report. Though he was cross-examined at length, he has stated that according to his observation, the death of deceased occurred about 12 to 18 hours prior to post- mortem examination and he has referred the death of deceased as homicidal hanging due to hanging related injuries and struggle. Further explained that according to Page 19 of 25 AVR,J & GAC,J Crl.A.No.1181 of 2013 him, hanging is a death due to self-homicidal inflicted by some other persons. But in the chief examination he has stated about the abrasions, scratch and ligature marks around the chin and neck. Nowhere he has specified how he arrived at a conclusion that the death of the deceased is homicide by hanging.
20. In Modi's Medical Jurisprudence and Toxicology, 23rd Edn., Page 572, it is observed as follows:
"Homicidal hanging, though rare, has been recorded. Usually, more than one person is involved in the act, unless the victim is a child or very weak and feeble, or is rendered unconscious by some intoxicating or narcotic drug. In a case, where resistance has been offered, marks of violence on the body and marks of a struggle or footprints of several persons at or near the place of the occurrence are likely to be found."
21. Be it stated that none of the well-known signs referred to by the learned author are present in this case. The post-mortem report-Ex.P.7 is not a substantive piece of evidence. But the evidence of Doctor-PW.11 who conducted post-mortem examination can by no means be ascribed Page 20 of 25 AVR,J & GAC,J Crl.A.No.1181 of 2013 insignificant. As per the oral evidence, PWs.1 and 2 who are wife and daughter of the deceased and the panch witness for inquest and as per the post-mortem examination and also as per the oral evidence of PW.11- Doctor who conducted autopsy, there are no such external anti-mortem injuries on any other vital part of the body except on chin and neck portion which are abrasions, multiple scratch abrasions, ligature marks on the right and left side of chin and around the neck. PW.11 has stated that scratch abrasions are caused by sharp pointed objects before the ligature marks i.e., before hanging. The investigation on this aspect is silent. No such sharp pointed object was seized by the Investigating Officers either from the possession of the accused or at their instance. Hyoid bone, thyroid and cricoid cartilages are intact with contusion of surroundings soft tissues.
22. As per the medical jurisprudence, it is very much challenging to differentiate between suicidal, accidental and homicidal hanging cases. Majority of the hanging cases are only with the suicidal background. In homicidal Page 21 of 25 AVR,J & GAC,J Crl.A.No.1181 of 2013 hanging cases, a thorough scene of offence panchnama and autopsy are essential. Further, whenever such a homicidal hanging is opined by the Doctor, subsequent investigation after autopsy is also required. But in the present case, the Doctor has opined that scratch marks must have been caused before the death with a sharp pointed object, no such weapon is seized, the scene of offence panchnama is also silent as to any blood stains on the earth or on the cloth of deceased, no evidence of any marks of violence on the body or marks of struggle or foot prints, of several persons at the scene of offence neither found nor noticed. Therefore, the question whether the appellants/ accused murdered the deceased cannot be answered definitely, as a result the benefit of doubt that has arisen must go the appellants/accused.
23. However, the unbroken chain of circumstances such as the deceased arranging a hand loan of Rs.2 lakhs to the accused, demanding for repayment, failure of the accused to repay the same, deceased approaching the accused on 01.10.2008, with such a demand for repayment, the Page 22 of 25 AVR,J & GAC,J Crl.A.No.1181 of 2013 accused coming to the house of PW.1, questioning her as to why she sent the deceased to their house, and the accused remaining at the house of PWs.1 & 2 till 01:00 a.m. in the night on 02.10.2008, the deceased not returning back to the house during that night and PWs.1 and 2 receiving information by 06:00 a.m. on 02.10.2008 about the dead body of the deceased hanging to the railing of the house of accused, PW.1 prompt lodging of FIR before the police suspecting the accused are establishing a complete chain with implicating circumstances against the accused. As stated above, all the accused while answering to the questions 4, 5, 6, 8 and 9 put to them under Section 313 Cr.P.C. have also admitted that the dead body of the deceased was found at their house, panchanama was conducted, MO.1-rope used for hanging the dead body was seized. All these incriminating circumstances, coupled with strained relations between the parties would clinchingly establish the conduct and behaviour of accused in abetting the deceased to commit suicide though it is not sufficient to establish the essentials for the offence punishable under Section 302 IPC.
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24. Thus, the evidence on record would establish that the accused have abetted the deceased by their acts and conduct creating such circumstances that the deceased was left with no other option except to commit suicide. The prosecution with the clinching oral evidence of PWs.1 & 2 supported by the evidence of PWs.3 to 6, PW.8, PW.9 and PW.7 contents of Exs.P.2 and P.4 able to establish the conduct of the accused pushing him and forcing him to take the extreme step of committing suicide.
25. In such factual situation of the case, as indicated above, in view of the legally acceptable evidence available on record and in the background of principles laid by the Apex Court in the decision relied upon by the appellants and in view of material contradictions as in Exs.D.1 to D.4 and the opinion of panch witnesses for scene of offence panchnama and inquest panchnama under Exs.P.2 and P.4, and absence of any blood stains on the earth, on the cloths of the deceased or marks of struggle or foot prints of several persons at the scene of offence, absence of seizure of any such sharp edged object etc, we hold that this is Page 24 of 25 AVR,J & GAC,J Crl.A.No.1181 of 2013 only a case of abetment to commit suicide and not a case of culpable homicide by hanging amounting to murder. Consequently, to meet the ends of justice, the punishment deserves to be altered from the offence punishable under Section 302 of IPC to 306 of IPC. Both sides conceded that the appellants/accused Nos.2 to 4 are in jail from the date of judgment dated 29.10.2013 in SC No.217 of 2012.
26. In the result, the Criminal Appeal is partly allowed. The conviction of the appellants/accused 2 to 4 is altered from the offence punishable under Section 302 of IPC to the offence punishable under Section 306 of IPC and the sentence of life imprisonment is altered and modified to one for the period already undergone, since they are in jail from 29.10.2013 onwards i.e., from the date of judgment in SC No.217 of 2012 and to pay a fine of Rs.1,000/- (Rupees One Thousand only) each, in default to suffer simple imprisonment for two months.
27. The Criminal Appeal is disposed of accordingly and the appellants/Accused Nos.2 to 4 shall be set at liberty Page 25 of 25 AVR,J & GAC,J Crl.A.No.1181 of 2013 forthwith, if they have already paid the fine amount, as indicated above.
__________________________________ A. VENKATESHWARA REDDY, J.
_____________________________________ G. ANUPAMA CHAKRAVARTHY, J.
Date: 26.08.2022 Isn