THE HON'BLE SRI JUSTICE K.LAKSHMAN
AND
THE HON'BLE SMT. JUSTICE K.SUJANA
CRIMINAL APPEAL No.1106 OF 2013
JUDGMENT: (PER HON'BLE SMT JUSTICE K.SUJANA)
This appeal is preferred by the appellant being aggrieved by the
judgment dated 01.10.2013 passed by the learned Additional District and
Sessions Judge, Vikarabad, in S.C.No.278 of 2009 wherein, the appellant
was convicted for offence punishable under Section 302 IPC. He was
sentenced to undergo Life Imprisonment and to pay a fine of Rs.10,000/-,
in default of which to undergo Simple Imprisonment for a period of six
months.
2. The facts of the case are that one Edula Mogulaiah lodged
complaint to the Sub Inspector of Police, Mohammadabad Police Station,
stating that on 27.02.2009 he performed marriage of his
daughter - Chenamma @ Chitti with one
B.Buchaiah - appellant/accused. His daughter was working as Nurse
with one Dr.Rajender at Mohammadabad Village, and she used to return
home late, as such, accused suspected her fidelity and used to harass her
physically and mentally. Due to the unbearable harassment of accused,
his daughter committed suicide. On the basis of the said complaint, the
statement of E.Mogulaiah, was recorded and Cr.No.92 of 2009 was
registered under Sections 498-A and 306 IPC. The Police took up the
investigation and the concerned Tahsildar conducted the scene of offence
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panchnama and also the inquest panchanama as the death of the
deceased occurred within seven years of the marriage. The statements of
PWs.2 to 6 were recorded and in the presence of panchas, the scene of
offence panchanama-cum-seizure was conducted, photographs were
taken and the dead body was sent for postmortem examination. Later, the
statement of PW.7 was recorded. On 27.11.2009 the accused was
apprehended and he admitted his guilt, thereby, he was sent for judicial
remand. Later, the group of Doctors issued the postmortem report stating
that the death was due to hanging, as such, a charge sheet under
Sections 498-A and 306 IPC was filed.
3. On the basis of the said charge sheet, the matter was committed to
the Assistant Sessions Court, Vikarabad. After the examination of PW.1,
he found that the death was due to beating of accused, as such, he
reported the same to Sessions Court and the matter was taken over by
the learned Principal District Judge, Vikarabad. The prosecution
examined PWs.1 to 12 and marked Exs.P1 to P9 and MOs.1 & 2. After
going through the evidence on record and on hearing both sides, the
appellant/accused was convicted for the offence under Section 302 IPC
vide judgment dated 01.10.2013. Against the said judgment, this appeal
is preferred.
4. This appeal is filed stating that the trial Court erred in convicting
the appellant/accused by placing heavy reliance on the evidence of highly
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interested testimony of PWs.1 to 12 and the fact that the deceased
committed suicide on 23.11.2009 and only a suspicion was raised, were
not considered. Further, the trial Court failed to note that the appellant
and deceased were husband and wife and the deceased was working as a
Nurse and the appellant used to suspect her fidelity and used to harass
her physically and mentally, as such, due to the unbearable harassment
of appellant, the deceased committed suicide and the same was an
admitted fact in the evidence of PW.1 and the complaint lodged by him.
Furthermore, the prosecution failed to prove its case, as there were no eye
witnesses to the incident. Moreover, PW.7 - Dr.K.Rajendra deposed that
the deceased was working with him as a Nurse and her working hours
were between 10:00 AM to 05:00 PM and the allegation of the
complainant that the deceased used to return at late hours was totally
false. The prosecution also failed to prove any kind of harassment by the
appellant/accused, and without there being any evidence, the trial Court
wrongly convicted the appellant/accused.
5. Heard Sri P.Prabhakar Reddy, learned counsel for appellant, and
Sri T.V.Ramana Rao, learned Additional Public Prosecutor for respondent.
6. Learned counsel for the appellant/accused, submitted that there is no evidence on record to prove the offence of the appellant under Section 302 IPC as the complainant himself in his evidence has stated that his daughter committed suicide. He further submitted that the offence does KL, J & SKS, J Crl.A.No.1106 of 2013 4 not fall under the ingredients of Section 302 IPC though the prosecution failed to prove the offence the trial Court convicted the appellant without there being any evidence. As such, prayed this Court to allow the appeal by setting aside the judgment of the trial Court dated 01.10.2013 and to acquit the appellant.
7. On the other hand, the learned Additional Public Prosecutor, submitted that the evidence on record was sufficient to prove the guilt of the accused, there are no infirmities in the judgment and the trial Court has rightly convicted the accused. As such, prayed this Court to dismiss the appeal.
8. To prove its case, the prosecution examined PW.1 to PW.12 and marked Exs.P1 to P9 and M.Os.1 and 2.
PW.1 is the father of the deceased. He deposed that his daughter was working as Nurse in the hospital of one Dr.Rajender at Mohommadabad. The accused used to beat, abuse and quarrel with his daughter for returning home late after discharging her duties. On the date of incident he was informed that his daughter died. As such, he went to the house of his daughter where he found his daughter lying on the ground and there were injuries and scratches on the body. Hence, he suspected that accused might have killed his daughter.
KL, J & SKS, J Crl.A.No.1106 of 2013 5 PW.2 is the mother of the deceased. She also deposed on the similar lines as that of PW.1.
PW.3 is the owner of the house rented by the accused and the deceased. He deposed that he does not know how the deceased died but the accused called him to his house, as such, he saw the dead body of the deceased.
PW.4 deposed that he knows PWs.1 to 3 and the deceased as she was his sister-in-law. He stated that the accused and deceased lived happily for about 2 months after their marriage but later the accused quarreled with the deceased suspecting her character as she used to return later from her duty. He also deposed that deceased was pacified on many occasions and was advised to lead matrimonial life with the accused and sent back but she contended that she would commit suicide by hanging herself after quarreling with the accused. On information of death of his sister-in-law, he went to the house of accused and saw dead body of the deceased. PW.5 is the wife of PW.3. She has not supported the prosecution except deposing that the accused and deceased were living in her house as tenants.
PW.6 is the photographer.
PW.7 deposed that he is a Medical Officer and he knows the deceased as she was working as Nurse in a hospital and he also knew the husband of the deceased. He stated that the duty hours of KL, J & SKS, J Crl.A.No.1106 of 2013 6 the deceased were from 10:00 AM to 05:00 PM and on the next date of incident he came to know about the suicide committed by the deceased.
PW.8 is the panch for inquest panchanama.
PW.9 is the panch for scene of offence panchanama. PW.10 is the Tahsildar who conducted inquest panchanama. PW.11 is the Medical Officer who conducted autopsy over the dead body of the deceased. He deposed that he found three injuries on the body of the deceased and opined that the death was due to hanging.
PW.12 is the Investigating Officer. He deposed that while he was working as S.I., of Police, Mohammadabad, he received information on phone on 23.11.2009 from the Sarpanch of Ganded Village, as such, he proceeded to the said village and at the said place the father of the deceased Chenamma @ Chitti namely Mogulaiah (PW.1) lodged complaint. Hence, he recorded statement of Mogulaiah and registered Cr.No.92 of 2009 under Sections 498-A and 306 of IPC. He further deposed that he sent F.I.R., to the Court and copies of the same to the concerned and then sent a requisition to the Mandal Revenue Officer to hold inquest and then returned to the scene of offence. Then he recorded the statements of PW.2 to PW.6 and LW.3 held the scene of offence panchanama in the presence of PW.9 and LW.11 and got the same photographed KL, J & SKS, J Crl.A.No.1106 of 2013 7 through PW.6. Later, he seized the saree of the deceased along with the broken pieces of bangles, drew rough sketch, held inquest panchanama through the M.R.O., in the presence of the panchas, sent the body for post mortem examination and handed over the same to PW.1. He also stated that he recorded the statement of PW.7, collected the postmortem examination report, apprehended the accused along with two constables and sent him for judicial remand and later, deposited the property seized in the Court and filed the charge sheet under Sections 498-A and 306 of IPC.
9. On going through the rival contentions and the evidence on record, it is noticed that admittedly, the complaint was given stating that the deceased committed suicide, whereas, during the time of trial in the Assistant Sessions Court, at Vikarabad, PW.1 deposed that the accused used to beat and abuse the deceased and due to such unbearable beating the deceased died and a stick was found beside the body of the deceased. Police came and observed the body of deceased and found injuries on the back side of the body. Basing on the said evidence, the case was taken over by the District and Sessions Judge, at Vikarabad, where PW.1 deposed that his daughter was dead and there were injuries on the body, as such, he suspected that the accused might have killed his daughter.
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10. 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 offence under Section 302 IPC beyond reasonable doubt?
3. Whether the judgment of trial Court needs interference?
POINT No.1
11. To prove that the death of the deceased was a homicidal death, the prosecution relied on the evidence of PWs.1 and 2 and also the evidence of the medical Officer - PW.11. The evidence of PW.1 - father of the deceased, shows that the accused used to beat and abuse the deceased suspecting her character whenever she came home late and he was informed about the death of his daughter for which he suspected that the accused killed his daughter. The evidence of PW.2 is on similar lines with that of PW.1. PW.3 has not supported the case of the prosecution. PW.4 deposed that the deceased committed suicide by hanging herself after quarreling with the accused. PW.5 has not supported the case of prosecution, whereas, deposed that the deceased hanged herself. PW.11- Medical Officer, deposed that he found three injuries over the dead body of the deceased. Injury No.1 - ligature mark on the right side of the neck admeasuring 26cm x 1.5 to 3.5 cms, and injury Nos.2 and 3 were self implicated ones while being hanged or while hanging one self. He further deposed that the injuries would age between 24 to 36 hours prior to the autopsy and the injury could have been caused by a soft cloth. Injury KL, J & SKS, J Crl.A.No.1106 of 2013 9 Nos.2 and 3 could have been caused by the blunt object. He further gave an opinion that the death was due to hanging and the same was stated in Ex.P8 - Post Mortem Report. Therefore, the evidence of PW.11 shows that the death was due to hanging. PW.11 has not given any information about the homicidal death. Further, he has admitted that injury Nos.2 and 3 were possible while being hanged or hanging herself. The complaint of PW.1 itself shows that the deceased committed suicide and PW.4 deposed that the deceased committed suicide, whereas, the trial Court observed in the impugned judgment that if the deceased hanged herself, who removed the body from the place of hanging i.e., beam, and put her body on the ground, the prosecution story itself shows that the accused along with PW.3 removed the saree from the neck of the deceased for shifting her to the hospital. As such, the conclusion of the trial Court that it was a homicidal death, cannot be accepted. Accordingly, this point is answered. POINT Nos.2 & 3
12. As the prosecution failed to prove that the death of the deceased is a homicidal death, now it is to be seen whether there is abetment of suicide by the accused to commit the suicide.
13. The statements of PW.1 to PW.12 shows that the deceased - Chenamma was married to accused on 27.02.2009 and that originally, they were residing at Mansoorpally Village and then shifted to KL, J & SKS, J Crl.A.No.1106 of 2013 10 Ganded and the said Chennama was working as Nurse at Mohammadabad. The statements of PW.1 to PW.12 categorically show that the said Chenamma died on 23.11.2009. As per PWs.1, 2 and 4, when they visited the place of offence to see the deceased having come to know about her death, they found that the body was lying on the ground. Both PWs.1 and 2 who are parents of the deceased contended that the accused suspected the deceased and he had the habit of harassing the deceased physically and mentally.
14. The fact of harassing the deceased physically and mentally is corroborated by the evidence of PWs.1, 2 and 4 who are the parents and the brother in law of the deceased. The accused contended that the deceased committed suicide by hanging herself due to stomach pain but there was no evidence on record to show that she was suffering from stomach pain. Moreover, accused has also not adduced any medical evidence to show that deceased was suffering from stomach pain or any other ailment or was being treated for the same. PW.7 - employer of the deceased and also a medical officer was not cross examined regarding whether the deceased was suffering from any kind of ailment. Therefore, there is no evidence adduced by the accused to prove that she hanged herself due to stomach pain.
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15. Section 306 of the IPC reads as under:
"306. Abetment of suicide.--If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine".
16. The evidence on record specifies only to the extent that the deceased used to come home at late hours and the accused used to suspect her character and harass her. The evidence of PW.1 and PW.2 show that the deceased used to work as a Nurse with one Dr. Rajender at Mohommadabad. According to PW.7 - Dr. Rajender, the deceased worked with him as a Nurse and her working hours were between 10:00 am to 05:00 pm., as such, there is a force in the stand of the prosecution that as the deceased was a Nurse and she used to come home late and accused suspected her.
17. Though the death of the deceased occurred within 7 years of marriage, there is no evidence on record with regard to demand of dowry, whereas, the evidence of PWs.1 and 2 shows that the accused used to suspect the deceased as she was working as a nurse in a hospital of Dr.Rajender. PWs.1 and 2 further deposed that the deceased used to beat and abuse her whenever she came home late. The incident occurred within 7 months of marriage, the deceased was constantly harassed by the accused suspecting her character. On 27.02.2009 the marriage of the accused and deceased took place. The deceased committed suicide on KL, J & SKS, J Crl.A.No.1106 of 2013 12 23.11.2009. The deceased informed her parents about the attitude of accused. PW.4 who is the relative of the deceased also deposed that the accused was a tailor while the deceased was working as a nurse at Mohammadabad, so the accused used to suspect her character whenever she came home late from the duty and hence, would pickup quarrel with her and harass her suspecting her character. He further deposed that many times, the deceased was pacified and was asked to lead her matrimonial life with accused. The evidence of all the witnesses corroborate with each other with regard to the continuous harassment of the accused.
18. As seen from the record, the deceased committed suicide within seven months of marriage and her husband subjected her to cruelty which drove the deceased to commit suicide. Therefore, it can be presumed under Section 113-A of the Indian Evidence Act, that the suicide had been abetted by her husband. Section 113-A of the Indian Evidence Act reads as under:
"113A. Presumption as to abetment of suicide by a married woman. --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 had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of KL, J & SKS, J Crl.A.No.1106 of 2013 13 the case, that such suicide had been abetted by her husband or by such relative of her husband".
19. Further, Section 498-A of IPC provides that whoever being the husband or the relative of the husband of a woman subjects such women to cruelty shall be punished with imprisonment for three years and will also be liable to pay fine. For purposes of this Section, cruelty is defined to mean any willful conduct which is of such nature, as is likely to drive the women to commit suicide or to cause grave injury or damage to life, limb or health (whether mental or physical) of the woman or harassment of the woman where such harassment 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. In the present case, the evidence on record proves the cruelty of the accused/husband towards the deceased/wife which falls under the first limb of Section 498-A of IPC.
20. It has been established beyond reasonable doubt that this conduct of the appellant pushed his wife to such a stage, leaving no option for her except to commit suicide. From the evidence led by the prosecution, it has been proved that the deceased hanged herself due to the continuous harassment of the accused. Thus, the offence under Section 498-A and 306 of IPC stands proved against the appellant and he is held guilty of having abetted the commission of suicide by his wife. The trial Court also KL, J & SKS, J Crl.A.No.1106 of 2013 14 framed charges for the offences under Sections 498-A and 306 of IPC and the charge sheet itself was filed for the said offences. Accordingly, point Nos.2 and 3 are answered.
21. The trial Court, erroneously came to the conclusion that the death of the deceased is homicidal death and thrown the burden on the accused stating that he has to prove that the deceased committed suicide. Though the averments in Ex.P1 complaint itself shows that the deceased Chenamma hanged herself, which is supported by PW.4 and PW.11 - Medical Officer, the trial Court wrongly concluded it as homicidal death and convicted the accused for offence under Section 302 of IPC. In view thereof, this Court is of the opinion that the impugned judgment dated 01.10.2013 is not legally sustainable and it suffers with irregularity, as such, it is liable to be interfered with.
22. In the result, the appeal is partly allowed by setting aside the conviction and sentence for the offence under Section 302 of IPC and the appellant/accused is acquitted for the same, whereas, he is found guilty for the offence under Section 498-A and 306 of IPC. Accordingly, he is convicted and sentenced to undergo Rigorous Imprisonment for a period of three years and to pay a fine of Rs.1,000/- for the offence under Section 498-A of IPC, in default of payment of fine, he shall undergo Simple Imprisonment for a period of one month. Further, he is convicted and sentenced to undergo Rigorous Imprisonment for a period of seven years and to pay a fine of Rs.2,000/- for KL, J & SKS, J Crl.A.No.1106 of 2013 15 the offence under Section 306 of IPC, in default of payment of fine, he shall undergo Simple Imprisonment for a period of two months. Both the sentences shall run concurrently. The period of sentence of imprisonment already undergone by the appellant/accused i.e., from 01.10.2013 to 19.04.2021 and the fine of Rs.10,000/- is hereby set off. 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 :23.09.2023 PT KL, J & SKS, J Crl.A.No.1106 of 2013 16 HON'BLE SRI JUSTICE K. LAKSHMAN AND HON'BLE SMT JUSTICE K. SUJANA P.D. JUDGMENT IN CRIMINAL APPEAL No.1106 OF 2013 (Pre-delivery judgment of the Division Bench prepared by the Hon'ble Smt Justice K. Sujana) Date: 23.09.2023 PT