THE HON'BLE SRI JUSTICE K.LAKSHMAN
AND
THE HON'BLE SMT. JUSTICE K.SUJANA
CRIMINAL APPEAL NO.70 OF 2015
JUDGMENT: (PER HON'BLE SMT JUSTICE K.SUJANA)
This appeal is filed by the appellant who is accused in
S.C.No.302 of 2012 on the file of the VII Additional District and
Sessions Judge, at Bodhan. He was convicted for the offence under
Section 302 of the Indian Penal Code (for short 'IPC') and sentenced to
Rigorous Imprisonment for life and to pay a fine of Rs.1000/-, in
default of which to undergo Simple Imprisonment for two months.
2. The brief facts of the case are that the appellant/accused and the
deceased are husband and wife. On 03.12.2011 the mother of the
deceased gave a complaint report in the Police Station, Banswada,
stating that on 06.05.2011 she performed marriage of her daughter
with one Nandhyala Bhumesh (appellant/accused) and gave
Rs.2,70,000/- towards dowry. After the marriage, her son-in-law
started harassing her daughter physically and mentally. Her daughter
was working as a Lecturer in Shashank Degree College, Banswada. Her
son-in-law and daughter took a rented portion in Sadanandam House
in Teachers Colony and were leading their marital life. Since her
son-in-law was harassing her daughter, her daughter was attending
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her job in Banswada from her house. On 03.12.2011 her daughter did
not return to house till 05:00 P.M. She waited till 09:00 P.M., and
called her daughter over phone but her daughter's phone was switched
off. Then she, along with her eldest son and neighbour went to the
house which was taken on rent by her son-in-law and daughter, but
she found that the doors were latched. When she saw from window, she
found her daughter lying in a pool of blood without any movement and
her son-in-law was also lying there. On seeing them, she raised hues
and cries and neighbours gathered. When the back doors were
forcefully opened, she saw her daughter with injuries on neck and
lodged complaint against her son-in-law stating that he killed her
daughter. She also stated that the accused himself tried to commit
suicide by cutting his wrist veins of left hand with knife.
3. Basing on the complaint lodged by the mother of the deceased,
the Police registered a case in Crime No.236/2011 against the accused
under Sections 302, 498-A and 309 of IPC. After completion of
investigation, a charge sheet was filed against accused for offences
under Sections 498-A, 304-B, 302 and 309 of IPC.
4. To prove its case, the prosecution examined PWs.1 to 15 and got
marked Exs.P1 to P8 and MOs.1 and 2. After closure of prosecution
evidence, the accused was examined under Section 313 Cr.P.C. The
accused denied the same as false. On behalf of accused, Exs.D1 to D.3
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were marked. After going through the oral and documentary evidence,
the trial Court convicted the accused, as stated supra.
5. Heard Smt G.Jaya Reddy, learned counsel for appellant/accused
and learned Additional Public Prosecutor, appearing for
respondent - State.
6. Learned counsel for appellant would submit that though there was no direct evidence against the appellant, the trial Court arrived at conclusion on the basis of circumstantial evidence and convicted the appellant, which is not tenable. The circumstances relied by the prosecution were not proved beyond reasonable doubt. She further submitted that the trial Court ought to have seen that the deceased was staying with her parents since one month from the date of alleged incident, whereas, as per the evidence of PW.7, the deceased and the accused lived at her house in Teachers' Colony as tenants and they used to attend their jobs regularly and lived happily. Therefore, as put forth by the prosecution that on the date of the alleged incident only, the deceased and the accused came together, appears to be falsified by the evidence of PW.7.
7. Learned counsel for appellant further contended that the main door of the house was bolted and the deceased and accused were lying in a pool of blood but the back door of the house was not bolted which KL, J & SKS, J Crl.A.No.70 of 2015 4 clearly shows that there existed a possibility of thieves entering into the house and committing theft by inflicting injuries on the accused and deceased. She further contended that as there is no evidence on record to prove the allegations against the accused, he is entitled for acquittal. As such, prayed this Court to acquit the appellant/accused by setting aside the impugned judgment dated 12.01.2015.
8. On the other hand, the learned Additional Public Prosecutor submitted that the evidence on record is sufficient to prove the guilt of the accused. He stated that there was no denial of the facts that at the time of incident the accused and deceased were together, the main door was closed and the deceased was found dead in a pool of blood which clearly leads to the conclusion that accused was responsible for the death of the deceased. Therefore, there are no infirmities in the judgment of the trial Court, as such, prayed this Court to dismiss the appeal.
9. Though the accused was charged for offences under Sections 498-A, 304-B, 302 and 309 of IPC, the trial Court declared that the charges under Sections 498-A, 304-B and 309 were not proved by the prosecution and the appellant was found not guilty for the said offences. He was convicted only for the offence punishable under Section 302 of IPC.
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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 offences under Sections 302 of 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 is a homicidal death and the accused was responsible for death of the deceased, the prosecution examined PWs.1 to 15.
PW.1 is the mother of the deceased and the complainant. She deposed that the deceased was working as Lecturer in Shashank College, Banswada and the accused was working as Teacher. At the time of marriage, Rs.2,70,000/- cash, half tula gold and household articles worth Rs.30,000/- were given. After the marriage, the accused and the deceased lived happily for one month. After one month of marriage, the accused, brothers-in-law and mother-in-law of the deceased started harassing the deceased alleging that she brought less dowry amount. Due to disputes between the in-laws and the deceased, the accused and deceased started living separately and took a rented house in Teachers' Colony, Banswada. She further deposed that the accused and deceased lived in a separate KL, J & SKS, J Crl.A.No.70 of 2015 6 house for two months, thereafter, the accused started beating and harassing the deceased. The mother-in-law of the deceased also harassed the deceased saying that the accused would neither work nor pay the monthly rent and the deceased has to maintain accused. As such, the deceased left the rented house and started living in her parents' house. PW.1 stated that on the date of incident, her daughter did not return to the house till 09:00 P.M. When she called the deceased over phone, her phone was switched off. Then she, along with her son and neighbour went to the house of accused where through window she found the deceased lying in a pool of blood.
PW.2 is the father of the deceased. He deposed on the same lines as that of PW.1.
PW.3 is the brother of the deceased. He deposed on the same lines as that of PWs.1 and 2.
PW.4 is the neighbour of PW.1 & PW.2. He accompanied PW.1 to Banswada when the phone of the deceased was switched off. He deposed that he found the deceased lying in a pool of blood in the rented house of the accused.
PW.5 is the relative of deceased and PWs.1, 2 & 3. He deposed that once deceased informed him about the harassment of accused and his parents with regard to additional dowry.
KL, J & SKS, J Crl.A.No.70 of 2015 7 PW.6 is the father of PW.4 (neighbour). He deposed that on the date of incident the deceased went to attend her job in Banswada and did not return to house till 08:00 P.M., and her phone was also switched off. Then PW.1 came to him and informed the same to him, thereafter, he sent his son PW.4 along with PW.1.
PW.7 is the owner of the rented house of accused and deceased. She deposed that the accused and deceased lived in her house happily as tenants. They used to attend their jobs regularly. She further deposed that on the date of incident also when they returned home after attending their jobs, they went inside the house and closed doors. At about 10:00 P.M., she heard public gathering and commotion. The said public knocked the front door but it was not opening, then they opened the back door and entered into the house and saw the deceased lying in her house in a pool of blood. Then the deceased was shifted from the house and the house door was locked by the Police.
PW.8 is the photographer.
PW.9 is the colleague of the deceased. He deposed that on the date of incident the deceased attended college and he was in college till 03:00 P.M., and went away. He also deposed that the deceased was also in college till 03:00 P.M.
KL, J & SKS, J Crl.A.No.70 of 2015 8 PW.10 is the neighbour of the accused and the deceased. He deposed that he came to know about the incident at 10:30 P.M., through his wife and then he went to the hospital. PW.11 is the panch for scene of offence.
PW.12 is the Tahsildar who conducted the scene of offence panchanama.
PW.13 is the Doctor who conducted the autopsy over the dead body of the deceased.
PW.14 is the Investigating Officer.
PW.15 is the Officer who filed charge sheet after verifying the investigation done by PW.14.
12. The evidence on record shows that on the date of incident the deceased and accused were in theie house. When PW.1 called her daughter, the phone was switched off. On that, she suspected the accused and came to the house rented by the accused and deceased along with PW.3 and PW.4. When she knocked the door of the house, the door seemed locked. Then from the window she found her daughter lying in a pool of blood. On that, she raised hues and cries. When they went into the house from back door, they found that the accused was also lying on the floor and it seemed as if he tried to commit suicide by cutting his wrist. In substance, the evidence of PWs.1 to 6 also shows that after attending her job, the deceased did not return to the house of KL, J & SKS, J Crl.A.No.70 of 2015 9 PW.1. On that, PW.1 along with her son (PW.3) and neighbour (PW.4) went to Banswada where through window they found the deceased lying in a pool of blood and accused was also lying on the floor.
13. It is noticed that PWs.1 and 4 consistently deposed that the front and back door were locked from inside, as such, they opened back door and entered into the house and saw the deceased dead and also found scratches over her throat. The evidence of PW.13 (Medical Officer) shows that on 04.12.2011 he received intimation to conduct autopsy over the dead body of the deceased - Smt Rajyalaxmi alias Harshitha. He found multiple bruices and scratch marks around the neck that were oval in shape, the neck structures were congested and the hyoid bone was fractured on the left side. He deposed that according to him the cause of death was cardio respiratory arrest due to asphyxia due to throttling. PW.13 was not cross examined by the defence counsel.
14. Therefore, the evidence of PWs.1 , 3, 4 and 13 clearly proves that the death of the deceased is a homicidal death. Accordingly, this point is answered.
POINT Nos.2 and 3:
15. Now, it is to be seen whether there is sufficient evidence to connect the accused with the homicidal death of the deceased. The evidence of PWs.1, 4 and 7 shows that the deceased and accused were KL, J & SKS, J Crl.A.No.70 of 2015 10 living in a rented house in Teachers' Colony. When PWs.1 and 4 went to the said house, they found that the door was locked from inside and when they saw from the window, they found the deceased lying in a pool of blood. Immediately, they opened the back door and entered the house where they found accused also lying on the floor.
16. The defence taken on behalf of accused was that few thieves entered into the house, committed theft of mangalasutra of his wife, killed his wife and also attacked him, as such, he also sustained injuries. Though accused took such defence and stated the same in the examination under Section 313 Cr.P.C., in the evidence of PW.7 who is the owner of rented house of accused and deceased, she categorically denied the suggestion that on the day of incident she heard cries of thieves but did not come out of the house due to fear. PWs.1, 4 and 7 categorically deposed that the front door was closed and bolted from inside, as such, they entered inside the house from the back door by opening it forcefully which means both the doors were closed from inside. Primarily, even assuming that thieves entered into the house, there would be commotion and chance for the accused to raise hues and cries to invite attention of neighbours, but no such instance was spoken to by the witnesses. Secondly, even assuming that the thieves entered into the house, it would not be possible for them to bolt the doors from inside. Therefore, all the witnesses, including PW.7 KL, J & SKS, J Crl.A.No.70 of 2015 11 categorically denied the above stated suggestion put up on behalf of accused. However, if really the offence was committed by the thieves, the accused ought to have reported the same to the Police immediately. Moreover, the parents and brothers of the accused also resided in the nearby locality, he could have informed them. Therefore, the defence of the accused is not tenable. As far as the mangalasutra is concerned, the investigating Officer deposed in the cross examination that the mangalasutra was given to the parents of the deceased before conducting the postmortem of the dead body. Therefore, the defence of the missing of mangalsutra was also ruled out.
17. The evidence on record establishes that except the accused and the deceased, no one entered the house and the same was not denied by the accused. There was no possibility for third person to enter the house as the front and back doors were bolted from inside, as spoken by PW.4. Therefore, it can be concluded that at the time of commission of offence, there was nobody in the house except the accused and the deceased. Furthermore, the explanation offered by the accused in his examination under Section 313 Cr.P.C., does not inspire the confidence of the Court. At this stage, it is apparent to note that PW.13 (Medical Officer) deposed that he found injury on the wrist of the accused. Therefore, in view of the above discussion, as per Section 106 of the KL, J & SKS, J Crl.A.No.70 of 2015 12 Evidence Act, 1872 1, the accused has to explain as to what transpired between him and the deceased. However, this Court is of the opinion that the explanation offered by the accused is not convincing. Hence, as per the evidence on record and keeping in view all the circumstances of the case, it can be concluded that the accused is responsible for the death of the deceased.
18. Though it is proved that the accused is responsible for the death of the deceased, now it is to be seen whether, a culpable homicide would amount to murder and whether the conviction of the appellant is for the offence under Section 302 IPC justified.
19. When the Court is confronted with the question, what offence the accused could be said to have committed, the true test is to find out the intention or knowledge of the accused in doing the act. If the intention or knowledge was such as is described in Clauses (1) to (4) of Section 300 IPC, the act will be murder even though only a single injury was caused.
20. Section 304 IPC defines this section in two parts. If analyzed, the Section provides for two kinds of punishments or two different situations. The first is that if the act by which the death is caused with an intention of causing death or causing such bodily injury is likely to 1
106. Burden of proving fact especially within knowledge. -- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
KL, J & SKS, J Crl.A.No.70 of 2015 13 cause death. Here, the ingredient is with an intention. The second is that if the act is done with knowledge that it is likely to cause death but without any intention to cause death or such bodily injury as is likely to cause death.
21. In Lavghanbhai Devjibhai Vasava Vs State of Gujarat 2, the Hon'ble Supreme Court laid down certain parameters for consideration while deciding the question as to whether a case falls under Section 302 or Section 304 IPC. They read as under:
"Penal Code, 1860 - S.302 or S.304- Parameters to be taken into consideration while deciding question as to whether a case falls under S.302 or S.304-Summarised.
The parameters, inter alia, which are to be taken into consideration while deciding the question as to whether a case falls under Section 302 IPC or Section 304 IPC, are as follows :
(a) The circumstances in which the incident took place;
(b) The nature of weapon used;
(c) Whether the weapon was carried or was taken from the spot;
(d) Whether the assault was aimed on vital part of body;
(e) The amount of the force used;
(f) Whether the deceased participated in the sudden fight;
(g) Whether there was any previous enmity;
(h) Whether there was any sudden provocation;
(i) Whether the attack was in the heat of passion; and
(j) Whether the person inflicting the injury took any undue advantage or acted in the cruel or unusual manner."
2 (2018) 4 Supreme Court Cases 329 KL, J & SKS, J Crl.A.No.70 of 2015 14
22. In the present case, it is clear from the evidence of PW.1 and PW.4 that after the accused killed the deceased by throttling her neck, he tried to commit suicide by cutting his own wrist, which proves that there was some disturbances between the accused and deceased and on the spur of the moment the accused killed the deceased and then he also wanted to end his life by committing suicide. Therefore, the narration of facts and the evidence on record is not sufficient to prove the intention of the accused to kill the deceased.
23. In Sarabjeet Singh Vs. State of Uttar Pradesh 3 the Hon'ble Apex Court observed that every death must not be viewed so as to charge the one who caused death as a murderer. Such an approach would remove the well recognized line between culpable homicide amounting to murder and culpable homicide not amounting to murder. Primarily, to determine any action taken by the criminal, his state of mind is very relevant. The state of mind may either disclose intention or knowledge and that is a very relevant factor. The intention or knowledge may be inferred from the surrounding circumstances, such as, the genesis of the occurrence, the motive, the weapon used, the seat of injury, the ferocity of the attack, etc.
24. In the case on hand also, admittedly, due to various reasons there were disturbances in the marital life of accused and deceased. The Marriage of accused and deceased being love marriage, the parents 3 1984 SCC (CRI) 151 KL, J & SKS, J Crl.A.No.70 of 2015 15 of accused were not happy, is the contention of PW.1, therefore, it cannot attribute intention to the appellant for killing the deceased. Appellant also tried to commit suicide after killing his wife shows that the incident occurred in spur of the moment without any premeditation. Accordingly, point Nos.2 and 3 are answered.
25. Further, the trial Court came to the conclusion that the accused and deceased were only present in that house and as both the doors were closed, the accused is responsible for the death of deceased. The trial Court has not discussed the evidence on record with regard to the intention of the accused and erroneously came to the conclusion that culpable homicide amounts to murder and convicted the accused for offence punishable under Section 302 of IPC. In view thereof, this Court is of the opinion that the impugned judgment dated 12.01.2015 is not legally sustainable and it suffers with irregularity, as such, it is liable to be interfered with.
26. Considering the evidence/material on record, we are of the opinion that this case falls under Part-II of Section 304 IPC as there is no intention to cause death of the deceased and there is no motive attributed by the prosecution to the accused. Accordingly, Point Nos. 2 & 3 are answered.
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27. In view thereof, the appellant is guilty for the offence punishable under Section 304 Part-II IPC and his conviction under Section 302 IPC is therefore, set aside. Hence, the sentence imposed on the appellant is reduced to the period already undergone by him. Accordingly, the appeal preferred by the appellant is partly allowed. 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.
____________________ K. LAKSHMAN, J __________________ K.SUJANA, J Date : 23.09.2023 PT KL, J & SKS, J Crl.A.No.70 of 2015 17 HON'BLE SRI JUSTICE K. LAKSHMAN AND HON'BLE SMT JUSTICE K. SUJANA P.D. JUDGMENT IN CRIMINAL APPEAL No.70 OF 2015 (Pre-delivery judgment of the Division Bench prepared by the Hon'ble Smt Justice K. Sujana) Date: 23.09.2023 PT