THE HON'BLE SRI JUSTICE K.LAKSHMAN
AND
THE HON'BLE SMT. JUSTICE K.SUJANA
CRIMINAL APPEAL No.893 OF 2014
JUDGMENT: (PER HON'BLE SMT JUSTICE K.SUJANA)
This appeal is preferred by the appellant being aggrieved by the
judgment dated 09.07.2014 passed by the Additional District and
Sessions Judge, Vikarabad, Rangareddy District, in S.C.No.18 of
2011 wherein, the appellant was convicted for offences punishable
under Sections 498-A and 302 of the Indian Penal Code (for short
'IPC'). For offence under Section 498-A of IPC, he was sentenced to
undergo Rigorous Imprisonment for a period of three years and to
pay fine of Rs.5,000/-. Further, for offence under Section 302 of IPC,
he was sentenced to undergo Life Imprisonment and to pay fine of
Rs.10,000/-. Both the sentences were directed to run concurrently.
2. The appellant/accused filed this appeal stating that the
learned Judge ought not to have convicted him as the evidence on
record is not substantiating the charges against him under Sections
498-A and 302 of IPC and none of the ingredients of the said
Sections are proved by the prosecution beyond any reasonable
doubt. The trial Court ought to have appreciated that in a case based
KL, J & SKS, J
Crl.A.No.893 of 2014
2
on circumstantial evidence, there must be a chain of evidence so
complete as not to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must show that in
all human probability that the act must have been done by the
accused. Though there is no conclusive evidence, the learned Judge
wrongly convicted the appellant/accused. The trial Court also failed
to appreciate that the death of the deceased was the result of
genuine accident and the medical evidence apart from defence
evidence clearly establishes the same. Therefore, the
appellant/accused prayed this Court to allow the appeal by
acquitting him.
3. Heard Sri B.Laxman, learned counsel representing Sri Jetty
Anjaneyulu, learned counsel for appellant/accused, and Sri
T.V.Ramana Rao, learned Additional Public Prosecutor, appearing for
respondent - State.
4. Learned counsel for appellant submitted that to prove the case for offence under Section 302 of IPC, first of all, the prosecution has to prove that the death of the deceased is a homicidal death, whereas, there is no evidence on record to prove the same. Further, without there being any evidence on record, the circumstances relied on by the prosecution cannot be believed. Therefore, the learned KL, J & SKS, J Crl.A.No.893 of 2014 3 Judge has erroneously convicted the appellant, as such, prayed this Court to acquit the appellant by allowing the appeal.
5. On the other hand, the learned Additional Public Prosecutor, submitted that the evidence on record is very clear and the evidence of independent witness is sufficient to prove that the appellant, after killing his wife, tried to portray the same as an accident, whereas, the Investigating Officer, rightly investigated the case and filed charge sheet for the offence under Section 302 of the IPC and the circumstances conclusively prove the guilt of the appellant. As such, prayed this Court to dismiss the appeal as there are no infirmities in the judgment of the Court below.
6. To prove the case, the prosecution examined PWs.1 to 12 out of 19 witnesses cited in the charge sheet. Basing on the evidence of PW.12 and after hearing both sides, the learned Sessions Judge convicted the appellant supra.
7. The brief facts of the case are that on 23.01.2010 at about 09:00 A.M., one Burla Kumar, lodged complaint with the Police alleging that on 30.04.2006 he performed the marriage of his sister Navaneetha with Gutti Sathyanarayana i.e., appellant/accused No.1. Later, his sister Navaneetha was blessed with a female child. Since the date of marriage, her husband, along with parents-in-law i.e., KL, J & SKS, J Crl.A.No.893 of 2014 4 accused Nos.2 and 3, apart from the sister and brother-in-law of her husband, were harassing his sister for want of additional dowry, as such, the panchayats were held on many occasions and complaint was also lodged in Chevella and Shabad police Stations but still the attitude of the accused did not change towards Navaneetha. On 23.01.2010 at about 07:00 A.M., he received information that his sister was found dead beside road, hence, he along with his family members ran to the said place and saw his sister lying dead on the road with injuries on her throat. Therefore, he contended that his sister was killed by her husband after harassing her for additional dowry. On the basis of the said complaint, crime was registered against the appellant under Sections 498-A and 302 of IPC. The Investigating Officer prepared the scene of offence panchanama, examined the witnesses, conducted inquest panchanama and then shifted the dead body to the Government hospital, Chevella, for postmortem examination.
8. After postmortem examination, the dead body was handed over to the relatives of the deceased. During the course of the investigation, the Police apprehended accused Nos.1 to 3 on 04.02.2010 at about 08:00 A.M., and interrogated accused No.1 thoroughly. He voluntarily confessed having committed the offence and the same was recorded in the presence of the panchas. Later, KL, J & SKS, J Crl.A.No.893 of 2014 5 they also recovered the clothes (pant and shirt) of accused No.1 which he wore at the time of commission of offence, under the panchanama in the presence of panchas. The post mortem examination report mentioned that the victim died as a result of asphyxia due to direct pressure over the neck. Basing on the same, charge sheet was filed for the offence punishable under Sections 498-A and 302 of IPC.
9. To prove the case, the prosecution examined PWs.1 to 12 and got marked Exs.P1 to P9 and MOs.1 to 4.
PW.1 is the complainant and brother of the deceased. He deposed that his sister was married to accused No.1 on 30.04.2006 and was living with him and his family i.e., accused Nos.2 and 3. He further deposed that after six months of the marriage, the accused Nos.1 to 3 started demanding additional dowry of Rs.1 lakh and were harassing his sister for the same, as such, panchayats were held in village for about 2 or 3 times and in the said panchayat, the Sarpanch and the village elders advises accused No.1 to live amicably with his sister apart from advising accused Nos.1 to 3 to look after the deceased and not to harass her but the accused continued to harass her for additional dowry, as such, the deceased even KL, J & SKS, J Crl.A.No.893 of 2014 6 attempted suicide by consuming poison but was rescued after a treatment and then another panchayat was held wherein, the accused undertook to look after his wife. On 22.01.2010 the accused No.1 and Navaneetha came to Tangadpally Village to attend the cradle ceremony of the daughter of their cousin (PW.3) and left the village in the night but on the next day in the morning on receiving information, he went to the place at Nagaram Village and saw the dead body of his sister lying on the road beside a stream, while the scooter of accused No.1 was lying at a distance and the body had throttling marks and beating marks, as such, he lodged complaint against accused Nos.1 to 3.
PW.2 is the mother of the deceased. Her evidence is that her daughter married accused No.1 about nine years ago and that the accused No.1 and his daughter lived happily till a daughter was born and then the accused No.1 started beating her daughter for the reasons not known to her, as such, the deceased was back to her house but later, accused No.1 took her back with a promise to look after his wife but about four years later, accused along with the deceased came to attend the function at the house of PW.3 at Tangadpally Village and the left the said place after dinner. On the next day morning, KL, J & SKS, J Crl.A.No.893 of 2014 7 she came to know that accused No.1 killed her daughter and the same was informed to the Sarpanch, as such, the Sarpanch informed the same as they visited the body of her daughter on the Nagarguda Road and found that she had injury marks on the chest and also on the private parts and other clothes of the deceased were found to be loose. PW.3 is the cousin of the deceased. Her evidence is that on the date of incident, there was cradle ceremony in her house and the same was attended by the accused No.1 and the deceased. Later, both of them left her house in the night but in the morning she received a phone call from PW.1 stating that Navaneetha died while returning from the function, as such, they went to the place of offence at Nagarguda and saw the dead body of Navaneetha which had nail marks, rupture marks on the neck and thigh. She deposed that accused Nos.1 to 3 harassed Navaneetha for want of additional dowry and accused No.1 might have killed Navaneetha at the instance of accused Nos.2 and 3.
PW.4 deposed that about four years ago he was called to Venkateshwara Temple at Chevella as the elder in the panchayath held with regard to the dispute between the KL, J & SKS, J Crl.A.No.893 of 2014 8 accused No.1 and his wife i.e., Navaneetha who consumed some poisonous substance and attempted suicide. He further stated that in the said panchayath the accused No.1 was asked to execute a document transferring one acre of his land in the name of his daughter and settled the issue. Later, when he went to the scene of offence to see the dead body of Navaneetha.
PW.5 is another panch. His evidence is that he attended the panchayat pertaining to resolve the disputes between Navaneetha and her husband i.e., accused No.1 about four times, at request of father of Navaneetha. He deposed that the accused No.1 used to suspect his wife as she received a phone call from a male person, as such, he started harassing the deceased. The panchayat advised the accused and deceased to live amicably.
PW.6 is the neighbour of the deceased who knows Navaneetha and her father. His evidence is that accused Nos.1 to 3 suspected harassed the deceased for want of dowry, as such, panchayaths were also held in the village to resolve the dispute between accused No.1 and Navaneetha. The Panchayat advised them not to quarrel and live amicably.
KL, J & SKS, J Crl.A.No.893 of 2014 9 PW.7 is the panch for scene of offence panchanama. His evidence is that he noticed a scooter near the dead body of Navaneetha. Later, when Police held inquest panchanama, he signed on the same.
PW.8 deposed that on receiving a call from the Police station, he went to the Police Station where the C.I., read out a written matter stating that the accused No.1 killed his wife and then obtained signatures on the same. Later, accused No.1 led them to the Thimmareddyguda in Police jeep and stopped infront of his house and brought his clothes i.e., pant and shirt, that he wore at the time of the offence. The said pant and shirt was torn and had blood stains and the Police seized the same. PW.9 is the Tahsildar, Shabad, who held inquest panchanama in presence of PW.7 and another.
PW.10 is the Civil Assistant Surgeon in Government Hospital, Chevella. He deposed that on 23.01.2010 he found ligature mark on the front of the neck with fracture of hyoid bone and contusion below and medicalpart of sternomastoid apart from multiple scratches and abrasions on the left shoulder, anterior part of the chest, as such, opined that the death was due to KL, J & SKS, J Crl.A.No.893 of 2014 10 mechanical asphyxia due to application of pressure over the neck, hence, he issued certificate to that effect. PWs.11 and 12 are the Investigating Officers who deposed about the investigation done by them.
10. On behalf of accused No.1, DWs.1 and 2 are examined. DW.1 deposed that on 23.01.2010 at about 07:30 A.M., he saw Police taking accused No.2 along with them to the Police Station, as such, he followed them to know why the Police are taking accused No.2 in custody. In the Police Station he saw accused No.1 already in the custody, as such, he enquired as to why accused No.1 was in Police Station and came to know that wife of accused No.1 died in an accident and he came to the police station to lodge a complaint but the police made him sit there. He further deposed that after sometime, the Police took accused Nos.1 and 2 along with them from Shabad Police Station on motor cycles. As such, he followed them and noticed that accused Nos.1 and 2 were taken to the Registration Office at Chevella where the accused Nos.1 and 2 executed a registered document in favour of the Sarpanch Anjaneyulu for an extent of one acre of land.
KL, J & SKS, J Crl.A.No.893 of 2014 11 DW.2 deposed that there were no disputes between the accused No.1 and the deceased and they lived amicably.
11. The case of the prosecution is totally based on the circumstantial evidence. The prosecution relied on the circumstances of the last seen theory and also the fact that earlier there were disputes between the deceased and accused No.1 and to resolve the same panchayats were held by PWs.4 and 5. Basing on the same, the trial Court came to the conclusion that accused No.1 killed the deceased.
12. Now, the points for determination are:
1. Whether the death of the deceased is homicidal ?
2. Whether the prosecution proved the guilt of the accused for the offences under Sections 302 and 498-A of IPC beyond reasonable doubt?
3. Whether the judgment of trial Court needs interference?
POINT Nos.1 to 3:
13. To prove that the death of the deceased is a homicidal death, the prosecution relied on the evidence of PW.10 - Medical Officer and also on the evidence of PWs.1 to 3 i.e., brother, mother and cousin of the deceased.
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14. PW.10 deposed that on 23.01.2010 he received requisition from the Station House Officer of Police Station, Chevella, and then when he examined the dead body of the deceased, he found ligature mark on front of the neck with fracture of hyoid bone and contusion below and medical part of stern mastoid apart from multiple scratches and abrasions on the left shoulder, anterior part of the chest. According to him, the injuries on the body were fresh ones and injury No.1 could have been caused by application of human pressure and injury No.2 could be possible due to road traffic accident, as such, he opined that the death was due to mechanical asphyxia due to application of pressure over the neck. As such he issued a certificate to that effect (Ex.P8).
15. In the cross examination he admitted that when pressure is applied on the neck of the human being by another human being, the tongue of the first human being protrudes. He also admitted that the mouth of the deceased was closed. He further admitted that when pressure is applied on the victim, the victim struggles, as such, the struggle marks will be present on the ground. He stated that in Ex.P8 while describing the ligature mark, he mentioned the said ligature mark as one inch, but he did not specifically mention that the ligature mark of one inch is the width or breadth. He also stated that when a man throttles another human being there will not be the KL, J & SKS, J Crl.A.No.893 of 2014 13 presence of the ligature mark on the neck. He deposed that he does not know if there would were any depression marks on the neck in case of throttling but in the present case, he did not find any such depression marks on the throat of the deceased. He admitted that when throttling is done, the sternomastoid muscles get torn and the same may result in hemorrhage. Lastly, he admitted that when a person is travelling on a two wheeler and a sudden break is applied, the same results in the fall of rider of two wheeler on some hard surface and due to the same, the injuries mentioned in Ex.P8 are possible. Hence, to conclude that the death of the deceased is a homicidal death, the only evidence on record is the evidence of PW.10.
16. PWs.1 to 3 suspected that the accused No.1 killed the deceased. Though there is no doubt that accused No.1 and the deceased were travelling together at the time of the incident and that there were disputes between them, to prove that the death of the deceased is homicidal death, the evidence on record is not sufficient. PW.10 gave contradictory statement with regard to death of the deceased. Though he deposed that the death of the deceased was due to mechanical asphyxia due to application of pressure over the neck, in the cross examination he was not standing on the same lines and his admissions show that if human pressure is applied on KL, J & SKS, J Crl.A.No.893 of 2014 14 the neck of the human being by another human being, the tongue of the first human being protrudes but the mouth of the deceased was closed. He also admitted that if a person throttles another person, there will not be any ligature marks, whereas, ligature marks were found over the dead body of the deceased. Therefore, the admissions of PW.10 in the cross examination creates doubt with regard to the death of the deceased being homicidal death.
17. Further, PW.1 deposed that there were throttling marks and beating marks on the dead body of the deceased. PW.2 deposed on different footing as that of PW.1 and stated that there were injury marks on the chest and private parts of the deceased but the same was not deposed by PW.10. PW.3 deposed that she saw nail marks and other ruptured marks on the neck and thighs of the deceased. Therefore, the evidence of PWs.1 to 3 and PW.10 is not corroborating with each other to conclude that the death of the deceased is a homicidal death.
18. The prosecution relied on the circumstances to prove the motive for commission of offence. Firstly, the disputes that prevailed between accused No.1 and the deceased. According to PW.1, the accused used to harass the deceased for additional dowry and with regard to the same, the deceased attempted suicide and a panchayat KL, J & SKS, J Crl.A.No.893 of 2014 15 was held by elders i.e., PWs.4 and 5 whereunder, PWs.4 and 5 advised them to live amicably. The evidence of PWs.4 and 5 does not disclose anything about the demand of additional dowry by accused No.1 and PW.4 remains silent with regard to the type of harassment or the disputes prevailed between accused No.1 and the deceased, whereas, PW.5 deposed that accused No.1 used to suspect his wife as she received calls from a male person. Therefore, we cannot rely on the evidence of PWs.1 to 3 with regard to the harassment being made by accused No.1 on the deceased and demanding additional dowry.
19. The evidence of PW.4 discloses that accused No.1 and the deceased was advised to live amicable and for the said purpose, accused No.1 was made to execute a document transferring one acre of his land in favour of the deceased, and the same falsifies the evidence of PWs.1 to 3 regarding the demand of additional dowry by accused No.1.
20. Secondly, the prosecution relied on the alleged confession of accused No.1 leading to the recovery of MOs.1 and 2. The evidence of PW.8 is that he received a call from the Police Station, where the C.I., read out a written matter stating that accused No.1 killed his wife and obtained signatures on the same and later accused No.1 himself KL, J & SKS, J Crl.A.No.893 of 2014 16 led the Police to Thimmareddyguda and recovered the MOs.1 and 2, there is no evidence on record with regard to MOs.1 and 2 being sent to FSL to prove that the blood on MOs.1 and 2 belongs to the deceased. Further, in the evidence of PW.10 he has not deposed anything about the bleeding injuries. Therefore, the circumstances relied upon by the prosecution with regard to the alleged confession of accused No.1 leading the Police to recover MOs.1 and 2 is not proved. Moreover, the statement of PW.8 is that he signed on a written statement read out by the Police. He turned hostile and has not supported the prosecution. Therefore, the prosecution failed to prove the circumstances.
21. Learned counsel for appellant relied on the judgment of the Hon'ble Supreme Court in Sharad Birdhichand Sarda Vs. State of Maharashtra 1. The relevant paragraph No.153 reads as under:
"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a 1 1984 4 SCC 116 KL, J & SKS, J Crl.A.No.893 of 2014 17 grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused".
22. In the present case, the prosecution failed to prove that the circumstances established are consistent and they are not showing that accused No.1 is the only person who is responsible for the death of the deceased. The circumstances relied upon by the prosecution KL, J & SKS, J Crl.A.No.893 of 2014 18 itself are not proved. The trial Court wrongly came to the conclusion that the death of the deceased is a homicidal death and accused No.1 is responsible for it. Further, in paragraph No.218 of the judgment in Sharad (supra) it is observed that "in view of the fact that this is a case of circumstantial evidence and further in view of the fact that two views are possible on the evidence on record, one pointing to the guilt of the accused and the other his innocence, the accused is entitled to have the benefit of one which is favourable to him...."
23. In the present case also, to prove that the death of the deceased is homicidal death, the evidence of PW.10 is not certain. Though PW.10 deposed that the death is due to mechanical asphyxia due to application of pressure over the neck, in the cross examination he admitted that it might have occurred due to an accident. Therefore, there is no sufficient evidence on record to prove that the death of the deceased is homicidal death. Further, the circumstances relied on by the prosecution to prove the motive for commission is also not proved beyond reasonable doubt. Therefore, benefit of doubt can be given to the accused. Accordingly, point Nos.1 to 3 are answered.
KL, J & SKS, J Crl.A.No.893 of 2014 19
24. In view of the above discussion, this Court is of the opinion that the prosecution failed to prove the circumstances beyond reasonable doubt and the trial Court wrongly convicted the appellant/accused No.1 for the offence punishable under Section 302 of IPC. Therefore, the appellant/accused No.1 is entitled for benefit of doubt. As such, the appeal is liable to be allowed. Accordingly, the appeal is allowed. The impugned judgment dated 09.07.2014 in S.C.No.18 of 2011 passed by the Additional District and Sessions Judge, Vikarabad, Rangareddy District, is set aside. The bail bonds of the accused shall stand cancelled. He is set at liberty, forthwith, if he is not required in any other crime or case.
As a sequel, the miscellaneous petitions, if any, pending in this appeal shall stand closed.
____________________ K. LAKSHMAN, J __________________ K.SUJANA, J Date :18.10.2023 PT KL, J & SKS, J Crl.A.No.893 of 2014 20 HON'BLE SRI JUSTICE K. LAKSHMAN AND HON'BLE SMT JUSTICE K. SUJANA P.D. JUDGMENT IN CRIMINAL APPEAL No.893 OF 2014 (Pre-delivery judgment of the Division Bench prepared by the Hon'ble Smt Justice K. Sujana) Date:18.10.2023 PT