Andhra Pradesh High Court - Amravati

Bommu Prasanth Prasanth Kumar, ... vs P.P., Hyd on 9 July, 2021

Bench: C.Praveen Kumar, B Krishna Mohan

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        THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR

AND THE HON'BLE SRI JUSTICE B. KRISHNA MOHAN

Criminal Appeal No. 718 of 2015

JUDGMENT: (Per Hon'ble Sri Justice C.Praveen Kumar)

Heard Sri. K. Srinivas, learned Counsel appearing for the

Appellant and Sri. S. Dushyanth Reddy, Additional Public

Prosecutor, through Blue Jeans video conferencing APP and with

their consent, the appeal is disposed of.

1) Accused No. 1 in Sessions Case No. 183 of 2011 on the file

of V Additional District and Sessions Judge, Guntur, is the

appellant herein. Originally, Accused Nos. 1 to 5 were tried for

the offences punishable under Sections 498-A, 304-B, 302 and

201 read with 34 of Indian Penal Code, 1860 ['I.P.C.']. By its

Judgment, dated 02.06.2015, the learned Sessions Judge, while

acquitting Accused No. 2 to 5 of all charges, convicted Accused

No. 1 for the offence punishable under Section 302 I.P.C., and

sentenced him to suffer imprisonment for life and to pay fine of

Rs.3,000/- in default to suffer rigorous imprisonment for two

months. He was also found convicted for the offence punishable

under Section 201 I.P.C., and sentenced to rigorous

imprisonment for three years and to pay fine of Rs.2,000/- in

default to undergo rigorous imprisonment for one month.

However, Accused No. 1 was acquitted for the offence

punishable under Sections 498-A and 304-B I.P.C. The

substantive sentences imposed against the appellant were

directed to run concurrently.

2) The substance of the charges against the accused is that,

on 15.06.2010 at about 8.00 P.M. at Tadepalli, Accused No. 1 is

said to have caused the death of Smt. Patchala Suneetha @

Indira ['deceased'] by using a pillow, which lead to the

instantaneous death and thereafter the Accused No. 1 is said to

have hanged the deceased to the ceiling fan with a chunni, so as

to make it appear as if the deceased committed suicide.

3) The case of the prosecution, as it unfolds from the

evidence of prosecution witnesses, is as under:

i) PW1 is the father of the deceased, while PW2 and PW3 are

the brothers of the deceased. PW4 is the owner of the

house where the deceased was living. It is said that, the

deceased was working as a computer operator in Manipal

Hospital. She fell in love with A1 and married him on

18.05.2010. The marriage was performed by one Seelam

Prabhudas who is a marriage convener. On the next day of

marriage, A1 telephoned to PW1 and demanded

Rs.3,00,000/- as dowry and further informed that had he

married another girl, he would have got Rs.3,00,000/- as

dowry.

ii) On 19.05.2010 PW1 went to the house of A1 at

Sundaraiah Nagar and handed over a sum of Rs.30,000/-.

After handing over the said amount, PW1 informed A1 that

it is not good to live in a rented house and asked him to

join his parents or live with PW1. On that, A1 replied that

their marriage was not to the liking of his parent's and that

he wants to live in the said house. At that time, PW1 came

to know that his daughter was pregnant.

iii) About four days after marriage, PW3 went to the house of

A1 and gave Rs.1,000/- as A1 wanted to go to Hyderabad

for training. This amount was adjusted basing on the

request made by the deceased to PW3. It is said that both

of them lived happily for 10 days and thereafter the

deceased telephoned to PW1 informing that the amount of

Rs.30,000/- given, is not sufficient and all the accused

have been demanding her to get Rs.2,00,000/- as dowry

and along with A1 they have been harassing and

threatening her. This phone call was said to be on

14.06.2010. It was said that if the amount is not paid, A1

threatened to leave her alone in the house and go to other

State by changing his cell phone number.

iv) On 15.06.2010 at about 8.00 A.M., PW4 the owner of the

house found deceased sitting in the veranda, which is

common to both the houses. When asked as to why she is

sitting like that, she informed that she is not feeling well as

she got her pregnancy terminated. At that time, ten

persons from Spandana Group came there to talk with

PW4. Seeing them, the deceased went inside the house.

After discussing with Spandana Group people, PW4 went

back to her house. By then, A1 had already went away on

his bike. Later, she went to the house of the deceased and

called her, but there was no response. She pushed the

door and found the deceased hanging to the ceiling fan.

She immediately rushed to the house of PW2 and informed

about the incident. Thereafter, she along with PW2 cut the

chunni, brought the body down in order to take her to

hospital. By that time, PW1 and PW3 also appeared and

enquired as to what happened to the deceased. Then PW4

narrated about the incident and all of them took the

deceased to Manipal Hospital, where the doctor declared

her dead.

v) The evidence of PW1 is also to the effect that on

15.06.2010 he along with PW3 got down the bus at

Manipal Hospital and noticed A1 standing with his bike on

the bypass road, Vijayawada and on seeing them he is said

to have left the place in a hurried manner. Thereafter, they

went to the house of the deceased and noticed PW4

bringing the deceased down and making efforts to take her

to the hospital. Suspecting some foul play by the accused,

PW1 lodged a report before PW13. Ex.P13 is the report.

vi) Basing on the report, a case in Crime No. 139 of 2010

came to be registered for the offences punishable under

Sections 302, 304-B read with 34 I.P.C, by PW13. Ex.P21

is the First Information Report. Thereafter, PW13 intimated

about the registering of First Information Report to his

superiors and also sent requisition to the Mandal

Executive Magistrate for conducting inquest. Ex.P17 is the

requisition sent to Mandal Executive Magistrate.

vii) On the same day, at about 4.00 P.M. PW14 -the S.D.P.O.,

Guntur, received a copy of the First Information Report

and accordingly instructed PW13 to issue a requisition to

M.R.O., Tadepalli, to conduct inquest over the dead body.

At about 4.30 P.M., PW14 visited Tadepalli Police Station

and then along with Sub-Inspector of Police visited the

scene of offence, which is located at Door No. 12-1723,

Sundaraiah Nagar, Tadepalli. He found the chunni of the

deceased hanging to the ceiling fan, two pieces of chunny

lying on the mat and mattresses, four marriage photos of

the deceased with A1, apart from one outpatient book of

C.Sarda Nursing Home, Vijayawada and other papers. He

prepared a rough sketch of the scene, which is placed on

record as Ex.P24. In the presence of mediators, PW14 also

prepared an observation report of the scene, which is

placed on record as Ex.P11. At the scene, he recorded the

statements of PW1 to PW4. Thereafter, PW14 visited the

mortuary at Manipal Hospital and found one nail scratch

on right cheek, pressed nose stud and also a ligature mark

on the neck of the deceased. In his presence, the M.R.O.

(PW12) conducted inquest over the dead body and issued

Ex.P13 inquest report. Thereafter, the body was sent for

post-mortem examination.

viii) PW11 - the Civil Assistant Surgeon, Government Hospital,

Mangalagiri, conducted autopsy over the dead body of the

deceased and issued Ex.P14 the post-mortem report.

However, no final opinion was given. Later, basing on the

Pathological report, which is marked as Ex.P15, a final

opinion was given, which is placed on record as Ex.P16.

ix) Having regard to the material available on record, PW14

made an application to delete Section 304B I.PC. and add

Section 498-A and 201 I.P.C. apart from Section 302 read

with 34 I.P.C. He got recorded Section 164 Cr.P.C.,

statement of PW8 by the Special Mobile Magistrate Court.

Ex.P25 is the said statement. After affecting arrest of A1 to

A5 on 28.06.2010, a charge-sheet came to be filed on

25.09.2010, which was taken on file as P.R.C. No. 75 of

2010 on the file of Additional Junior Civil Judge,

Mangalagiri.

4) On appearance of the accused, copies of documents as

required under Section 207 Cr.P.C., came to be furnished. Since

the case is triable by Court of Sessions, the matter was

committed to the Sessions Court under Section 209 Cr.P.C.

Basing on the material available on record, charges as referred

to above came to be framed, read over and explained to the

accused, to which, the accused pleaded not guilty and claimed

to be tried.

5) In support of its case, the prosecution examined PW1 to

PW14 and got marked Ex.P1 to Ex.P26, beside marking MOs. 1

to 11. After completion of prosecution evidence, the accused

were examined under Section 313 Cr.P.C. with reference to the

incriminating circumstances appearing against them in the

evidence of prosecution witnesses, to which they denied. Though

no defence evidence was adduced, but the accused got marked

Ex.D1 and Ex.D2.

6) Basing on the evidence available on record, the trial court

convicted A1 alone under Section 302 and 201 I.P.C.

Challenging the same, the present appeal came to be filed.

7) Sri. K. Srinivas, learned counsel appearing for the

appellant mainly submits that there is no evidence on record to

show that A1 was responsible for the death of the deceased. He

submits that there is no material to show that it was a case of

homicide and on the other hand, the evidence on record indicate

that the deceased on her own committed suicide. He took us

through the evidence of PW5 and PW6 to show that the reasons

given by them for the incident are different from what has been

stated by PW1 and PW2. According to him, the prosecution case

cannot be believed, since there are varying versions as to cause

of death and the nature of death as well. He further submits

that since the trial court acquitted the appellant for the offences

punishable under Section 304-B and 498-A I.P.C., altering the

conviction from Section 302 to 306 I.P.C. as urged by the

learned Public Prosecutor is not permissible under law. In view

of the above, the learned counsel would submit that it is fit case

where the accused is entitled for the benefit of doubt.

8) Sri. S. Dushyanth Reddy, learned Additional Public

Prosecutor would submit that the evidence of PW4 would show

that the accused was present in the house and, as such, the

burden is on him to explain as to how and in what

circumstances the deceased died. He relies upon Section 106 of

Indian Evidence Act, 1872, to show that the burden is on the

accused to explain as to how the body of the deceased is in the

house. He would further submit that the evidence of PW1 and

PW3 also throw some doubt on the conduct of the accused. In

other words, his argument is that even though the accused was

acquitted for the offence punishable under Section 498A I.P.C.,

the material on record amply establishes that it was the accused

alone who was responsible for the death of the deceased.

According to him, the conviction and sentence imposed by the

trial court warrants no interference.

9) In the alternative, he would submit that since the death

took place within seven years of the marriage and as there was

harassment for money, conviction can be altered to one under

Section 304-B IPC.

10) In order to appreciate the rival arguments advanced, it

would be just and proper to refer to the evidence available on

record. Before referring to the evidence of prosecution witnesses,

it would be appropriate to refer to the findings given by the trial

court, which remained unchallenged.

11) A reading of the judgment would show that the learned

Sessions Judge also went in detail into the issue as to whether

the ingredients constituting an offence under Section 304-B

I.P.C. are made out, apart from dealing with the offence

punishable under Section 498A IPC.

12) It is to be noted here that the deceased, who is the wife of

A1, died within seven years of marriage. Insofar as last

ingredient is concerned, namely, that the deceased was

subjected to cruelty or harassment in connection with any

demand of dowry by her husband or relatives, is dealt with by

the trial court, in paragraph no. 20 of the judgment, wherein, it

has held as under:

"20. The last ingredient is that, the prosecution has to establish that the victim was subjected to cruelty or harassment in connection with any demand for dowry by her husband or any of his relatives. It was already held that A1 is the husband of the deceased. PW1 stated that, he has

cordial relationship with A2. He further stated that he knows A1 through A2 only. Nowhere in the evidence of PW1 and others it is stated what is the relationship between A1 on one hand and others on the other hand. Since no evidence about the relationship between A1 on one hand and other accused on the other hand, even if, A2 to A5 have harassed the deceased, they could not come within the purview of Section 304B of I.P.C. In fact, neither PW2 nor PW3 nor PW4 stated in their evidence that in their presence, the accused herein demanded the victim woman or her parents for any dowry."

13) While dealing with demand for dowry and payment of

money by PW1, the learned Sessions Judge, after discussing the

evidence of PW1 to PW4, held as under:

"In view of the above circumstances, the evidence of PWs 1 to 4 that the accused demanded the deceased for dowry and that A1 phoned to PW1 and that PW1 had given Rs.30,000/- to A1 is unbelievable one. So, it can be said that there is no harassment for dowry. So it can be said that the prosecution has filed to establish this important ingredient."

14) While dealing with the offence punishable under Section

498-A I.P.C., the learned Sessions Judge after referring to

Section 498-A I.P.C., observed in paragraph nos. 26, 27 and 28

of the judgment, as under:

"26. So far as first ingredient is concerned, I have already stated above that the deceased is a married woman. So, it can be said that the first ingredient is established by the prosecution.

So far as 1st part of second ingredient is concerned, I have already stated that the prosecution has failed to establish that the accused have demanded the deceased or her parents for any dowry. So, it can be said that, the prosecution has failed to establish the first portion of second ingredient also.

27. Now it has to be looked into whether the second part of second ingredient is established by the prosecution or not.

On this aspect, PW--1 has not stated that the accused cruelly treated the deceased. However, he has stated that the accused demanded for dowry and in that connection, the accused harassed the deceased. PW--2 also stated that in connection with dowry only the accused demanded the deceased. On this aspect, PW--3, who is the brother of the deceased stated A--1 harassed the deceased to terminate her pregnancy. That fact is not spoken by PW--1 in his evidence.

PW--2 also did not state that fact. PW--4, who is the neighbour of the deceased stated that the deceased had informed her that her husband asked her to terminate her pregnancy. But the witness did not state that the deceased had informed her about A-1 harassed her on that account. PWs 5 and 6 have not stated that the accused harassed the deceased for termination of the pregnancy. However, PW--6 stated in her evidence that Suneetha had informed her that A-1 was torturing her both physically and mentally and she was cheated by him and another girl phoned that she was the wife of A--1. Taking into material available on record, especially, basing on the evidence of PW--6, it can be said that, A-1 herein has cheated the deceased, but it cannot be said that, A--1 has cruelly treated the deceased. So, it can be said that, the second para of the second ingredient is also not established.

28. So far as ingredient No.2[c] is concerned, it can be said that, the prosecution has failed to establish this ingredient 2[c] is also since 2[a] and [b] are not established by the prosecution."

15) The findings arrived at by the trail court have become final,

and the same were not challenged by the State. Even otherwise,

we have perused the entire evidence available on record and

found no reason to differ with the view taken by the learned

Sessions Judge. Hence, acquitting the accused under Section

304B IPC cannot be said to be improper.

16) Coming to the offence punishable under Section 302 I.P.C.

It is to be noted that, there are no eye witnesses to the

occurrence and the case rests on circumstantial evidence.

17) In order to establish as to whether it is a case of homicide

or a suicide, it would be appropriate to refer to the evidence of

post-mortem doctor and also the version of PW10, who was

present at the time of inquest.

18) PW11 is the doctor, who conducted post-mortem

examination on 16.06.2010 at about 4.00 P.M. According to

him, he noticed the following:

1) "A ligature mark of 15 x 2 cms is seen which is brown and hard due to drying of abrated skin. The ligature mark is horizontal in position, it is seen on both sides of the neck and it is transfers across the front of the neck. There is a redness about the ligature mark. Small haemorrhages are seen in the underlien layers of the skin. Adjacent muscles are congested."

19) PW11 did not give any opinion basing on the post-mortem

conducted by him, but after receiving the Pathological report,

gave an opinion, which is placed on record as Ex.P16. The same

reads as under:

"The cause of death is asphyxia due to antemortem hanging."

20) However, a reading of the cross-examination of PW11

[doctor] does not conclusively establish that it was a case of

homicide. It would be appropriate to extract the relevant portion

in the cross-examination of PW11, which is as under:

"It is not true to suggest that the death is 48 to 72 hours prior to my examination. Injury No. 1 is result of hanging. On seeing P.M. report there is no corresponding internal injury to the solitary external injury. The ligature mark on the dead body was noted in P.M. report was due to hanging. Before examination of P.M. examination, I examined the body minutely. I noted the ligature marks are in brown and hard. There is no fracture of hyoid bone. I cannot say whether the death of the deceased is a typical suicide. It is true the death might be suicide. I have noted on P.M. report the other injuries on the body, as there is no injuries. The hanging may be voluntary. The cause of death is only result of Asphyxia. The asphyxia means deficiency of oxygen. I have not noticed finger marks or any other violent marks on the face of the dead body. What are I have observed that i have noted in P.M. report. Asphyxia is nothing but mechanical interference to the respiratory system. Sometimes the respiratory system due to disorder of human organs."

21) A reading of the above would show that the doctor [PW11]

did not notice any fracture of hyoid bone and could not say that

the death of the deceased as "typical suicide". While saying so,

he again admits that the death might be "suicide". He further

states that, hanging may be voluntary and the cause of death is

only as a result of asphyxia, which means deficiency of oxygen.

He also admits that he did not notice finger marks or any violent

marks on the face of the deceased. Therefore, merely, because a

ligature mark is found in horizontal position on the both sides of

the neck and transfers across the front of the neck, it cannot be

said that it is a case where she was first strangulated and then

hanged to death, more so, when in the cross-examination the

doctor admits that hanging could be voluntary and the death

might be suicide.

22) Further, as seen from the arguments advanced by the

learned Additional Public Prosecutor, their case is based on the

evidence of PW4, to show that the accused was present in the

house and he failed to explain as to how the deceased died.

23) Before dealing with the evidence of PW.4, it would be just

and proper to refer to the evidence of PW5 and PW6. PW5 in her

evidence deposed that, she was working as ANM Nurse at

Manipal Hospital from June 2009 to January 2011 and she

submitted her resignation to Manipal Hospital in the month of

December 2010. After two days of marriage, the deceased came

to hospital and informed that she married A1. On 14.06.2010,

PW5 and one Nirmala went to a kirana shop at Sundaraiah

Nagar, where the deceased also met them. The deceased

informed them that A1 is talking with another girl on phone and

when she telephoned to the said girl, it was informed by the

caller that she has already married A1. She further informed

that the married woman sent messages to A1 and, as such, A1

cheated her. Thereafter, they dispersed from the shop. In the

cross-examination, it has been elicited that, she does not know

personally about the incident narrated by the deceased and she

did not make any inquiry whether the story narrated by the

deceased is true or false.

24) From the evidence of this witness, it is clear that couple of

days prior to her death, the deceased met PW5 and complained

only about A1 marrying another girl/ having affair with another

girl, who claims to have married him. There is no reference to

any harassment/beating etc., by A1.

25) PW6 was also working as ANM Nurse in Manipal Hospital

at Tadepalli. According to her, two days after the marriage, the

deceased informed her about her marriage with A1 and living

with him. On 14.06.2010, PW5 and PW6 went to one kirana

shop near Manipal Hospital and found the deceased at the shop.

She informed them about one girl telephoning A1. On one

occasion, the deceased answered the call, the caller informed

that she is the wife of A1. On this issue, there were disputes

between the deceased and the caller with regard to the marriage

with A1. The deceased also informed PW6 about A1 torturing her

physically and mentally and that she was cheated by him.

However, in the cross-examination, she admits that she did not

state before the police that on 14.06.2010 the deceased met and

informed about the incident i.e., 'some unknown girl phoned to

A1 stating that she was the married girl to him and that she

quarrelled with her.' The same reads as under:

"I did not inform to anybody that Sunitha came on 14.06.2010 to kirana shop and informed about her story. I did not state before police that on 14.06.2010 Sunitha met me and informed about her incident i.e., 'some unknown girl phoned to A1 stating that she was the married girl to him

and that she was disputed with her" and it is marked as in Ex.D1."

26) From the evidence of PW5 and PW6, it is clear that,

though, both of them met the deceased at the kirana shop on

14.06.2010, the allegation of harassment by A1, as spoken to by

PW6 is not reflected in the evidence of PW5. The consistency in

the evidence of PW5 and PW6 was only with regard to A1's

marriage with another girl by then.

27) Coming to the evidence of PW1, PW2 and PW3, they in

their evidence deposed about the demand made by A1, the

amount paid and further demand by all the accused to get

Rs.2,00,000/- as dowry. Nowhere in the evidence of these

witnesses, there is any reference to accused having an affair or

marrying another lady. The allegations of harassment for money,

payment of money etc., were not accepted by the trial court,

which we have already dealt with in paragraph 13 of this

judgment. Therefore, three versions are projected by the

prosecution. While, PW1 to PW3 speak about harassment for

money [disbelieved], while the evidence of PW5 and PW6 is about

A1 having an affair with another lady.

28) The third version is spoken to by PW.4, who is the owner of

the house. According to him, the deceased who was residing in a

portion of his house since three months prior to the incident,

was working as computer operator in Manipal Hospital. Prior to

joining her house, the deceased was not married, but, thereafter

the deceased informed him that she married A1. About 10 days

after joining the house, she informed her that she is pregnant

and her husband is demanding her to terminate pregnancy, but,

PW4 admits that she does not know what happened to her

pregnancy. According to PW4, on 15.06.2010 at 8.00 A.M., while

the deceased was sitting in the common veranda, PW4 asked the

deceased as to why she was sitting there, to which she informed

that she is not feeling well as she got her pregnancy terminated.

At that point of time, ten persons from Spandana Group came to

PW4's house and on seeing them the deceased went inside the

house. After discussing with the Spandana Group persons for

about 10 or 15 minutes, PW4 went into her house. According to

her, by that time A1 went out on his bike. Thereafter PW4 went

to the house of the deceased and called her, but there was no

reply. She pushed the door and noticed the deceased hanging to

the ceiling fan. Immediately, she rushed to the house of PW2.

29) The prosecution mainly relies upon this witness to show

that A1 was present in the house, at that time, and he is

responsible for the death of the deceased, namely, hanging the

deceased after throttling her to death. Even the Trial Court

relied upon the evidence of PW4 to convict the accused for the

offence punishable under Section 302 I.P.C. A reading of the

evidence of PW4 does not clearly indicate that accused was

present in the house either at the time when the deceased was

in the veranda talking with PW4 or at the time when Spandana

Group people numbering 10 to 15 were with PW4. She deposed

as under:

"After discussing with Spandana People ten or 15 minutes thereafter I went to my house. By that time A1 went out on his bike, by the time I went to her house portion and called her as Sunitha, but she did not give any reply, then I pushed the doors her portion on seeing the deceased was hanging to her house ceiling."

30) According to us, this portion of the evidence of PW.4 does

not establish beyond doubt that A1 was present in the house at

that time. On the other hand, it shows that even before the

discussion with Spandana Group ended, A1 went away on his

bike. Thereafter, PW4 went to the house of the deceased and

found the deceased hanging to the ceiling with her chunni. This

portion of the evidence of PW4, in our view, does not

conclusively establish that A1 was present in the house even

after the arrival of Spandana Group. This finding of ours gets

support from the evidence of post-mortem doctor, whose

evidence is not conclusive as to whether it was a case of

throttling or whether it was a case where the deceased was done

to death and thereafter hanged to a ceiling fan. On the other

hand, as observed by us earlier, the evidence of post-mortem

report, indicates that it was a case of suicide by the deceased.

31) At this stage, the learned Public Prosecutor would submit

that though no charge is framed under Section 306 IPC and

since the evidence of post-mortem doctor is not clear as to

whether it is a case of homicide or suicide, the accused may be

convicted under Section 306 IPC. But, as observed by us earlier,

firstly, there is no charge under Section 306 IPC, secondly even

in the charge framed for the offence punishable under Section

302 IPC, it is stated that the deceased was done to death and

later on she was hanged to show that she committed suicide. To

test the argument of the learned Public Prosecutor, it is first to

be seen as to whether, in the given set of circumstances, a

presumption under Section 113A of the Indian Evidence Act,

1872 can be drawn. Section 113A of the Indian Evidence Act

reads as under:

"Presumption as to abetment of suicide by a married women:

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 circumstance s of the case, that such suicide had been abetted by her husband or by such relative of her husband.