Andhra Pradesh High Court - Amravati
Damarla Revathi Devi vs Bhattu Srinivasa Rao 4 Others on 20 October, 2022
HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
****
CRIMINAL REVISION CASE No.449 OF 2005
Between:
Damarla Revathi Devi,
W/o.Late Hema Raju, Aged 53 years,
R/o. Vijayawada,
Krishna District. .... Petitioner/PW.1
Versus
1. Bhattu Srinivasa Rao,
S/o.Veera Raghavulu @ Veera
Raghavaiah, Aged 35 years.
2. Bhattu Sambrajyam, W/o.Veera
Raghavulu, Aged about 50 years.
3. Bhattu Veera Raghavulu @ Veera
Raghavaiah, S/o. Veerabhadram,
Aged 67 years.
4. Dhamarla Vijaya Kumari,
W/o.Koti Ram Murthy,
Aged 28 years.
(All are Residents of 11th Ward,
Mangalagiri, Guntur District).
5. The State of A.P.,
Rep. by Public Prosecutor,
High Court of A.P.,
Amaravathi. .... Respondents
DATE OF ORDER PRONOUNCED : 20.10.2022
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SUBMITTED FOR APPROVAL:
HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
1. Whether Reporters of Local Newspapers
may be allowed to see the Order? Yes/No
2. Whether the copy of Order may be
marked to Law Reporters/Journals? Yes/No
3. Whether His Lordship wish to see the
Fair copy of the order ? Yes/No
______________________________
A.V.RAVINDRA BABU, J
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* HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
+ CRIMINAL REVISION CASE No.449 OF 2005
% 20.10.2022
# Between:
Damarla Revathi Devi,
W/o.Late Hema Raju, Aged 53 years,
R/o. Vijayawada,
Krishna District. .... Petitioner/PW.1
Versus
1. Bhattu Srinivasa Rao,
S/o.Veera Raghavulu @ Veera
Raghavaiah, Aged 35 years.
2. Bhattu Sambrajyam, W/o.Veera
Raghavulu, Aged about 50 years.
3. Bhattu Veera Raghavulu @ Veera
Raghavaiah, S/o. Veerabhadram,
Aged 67 years.
4. Dhamarla Vijaya Kumari,
W/o.Koti Ram Murthy,
Aged 28 years.
(All are Residents of 11th Ward,
Mangalagiri, Guntur District).
5. The State of A.P.,
Rep. by Public Prosecutor,
High Court of A.P.,
Amaravathi. .... Respondents
! Counsel for the Petitioner : Sri M. Radha Krishna
^ Counsel for the Respondents
No.1 to 4 : Sri K. Rama Koteswara Rao
^ Counsel for the Respondent No.5 : Public Prosecutor
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< Gist:
> Head Note:
? Cases referred:
1. (2004) 7 SCC 665
2. 2010 (2) ALD (Crl.) 779 AP
3. (2006) 1 SCC 283
4. (2014) 14 SCC 477
5. 2007 (1) ALT (Crl.) 463 (DB)
6. 2022 LiveLaw SC 107
7. AIR 2012 (SC) 2488
8. 2010 15 SCC 116
9. (2013) 7 SCC 256
This Court made the following:
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HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
CRIMINAL REVISION CASE No.449 OF 2005
ORDER:
This Criminal Revision Case came to be filed by the
petitioner namely Damarla Revathi Devi, wife of late Damarla
Hema Raju, who was the prosecution witness No.1 in Sessions
Case No.263 of 2003, on the file of the Court of V Additional
District and Sessions Judge (Fast Track Court), Guntur (for short,
„the learned Additional Sessions Judge‟), under Sections 397 and
401 of the Code of Criminal Procedure, 1972 (for short, „the
Cr.P.C‟), challenging the judgment of acquittal, dated 03.11.2004,
where under the learned Additional Sessions Judge exonerated all
the accused of the charges under Sections 498-A and 304-B of the
Indian Penal Code, 1860 (for short, „the IPC‟).
2. PW.1 in Sessions Case No.263 of 2003 is the mother of the
deceased by name Bhattu Srivardhini. Her husband i.e., Damarla
Hemaraju (LW.1) gave a statement under Ex.P-8 before the Police,
which was recorded as FIR in Crime No.174 of 2000 of Mangalagiri
Town Police Station, for the offences under Sections 498-A and
306 R/w.34 of IPC and was investigated into. LW.1-de-facto
complainant was not examined by the prosecution as he died.
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Respondent No.1 herein is no other than the husband (A-1),
respondent Nos.2 and 3 are the in-laws (A-2 and A-3) and
respondent No.4 is the sister-in-law (A-4) of the deceased
respectively. The respondents herein were tried by the learned
Additional Sessions Judge for the charges under Sections 498-A
and 304-B of IPC and they were acquitted of the charges framed
by virtue of the judgment in Sessions Case No.263 of 2003, dated
03.11.2004. The State of A.P. seems to have not preferred any
Appeal against the acquittal, but PW.1, who is the husband of the
de-facto complainant (died), preferred this Criminal Revision Case
under Sections 397 and 401 of the Cr.P.C.
3. The brief facts, which are germane for the purpose of
deciding this Criminal Revision Case, which can be culled out
from Ex.P-8, dated 04/05-09-2000, statement of the de-facto
complainant i.e., husband of PW.1, are as follows:
He was living by selling stamps in Civil Courts, Vijayawada.
He was blessed with four daughters and two sons. Her second
daughter i.e., Srivardhini, was given in marriage to one Bhattu
Srinivasa Rao (respondent No.1 herein), resident of Mangalagiri in
the year 1996. At the time of marriage, he presented cash of
Rs.65,000/- towards dowry and Rs.25,000/- towards other
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lanchanams. After marriage, he sent her daughter to her in-laws
house and one year thereafter she gave birth to a male child. His
son-in-law i.e., Srinivasa Rao (A-1) was addicted to consumption of
alcohol and used to demand his daughter for money by beating
her. A-1 used to send his wife i.e., Srivardhini to the house of her
parents frequently. He complied the demands of his son-in-law.
Her daughter i.e., Srivardhini came to him and told that her in-
laws, sister-in-law and her husband are harassing her for getting
money. On 04.09.2000 evening his daughter Srivardhini
telephoned to his house and informed that she entertained a
suspicion that she will be killed by her husband, in-laws and
sister-in-law and her husband, for which his wife consoled her not
to afraid and asked her to come to Vijayawada. After half an hour,
they received a phone call that their daughter was burnt. Then his
wife proceeded to Mangalagiri along with others and found her
daughter in a precarious condition on the verge of death, as such
she was taken to Government General Hospital, Guntur, where
they were informed that her daughter Srivardhini died. Then the
dead body was shifted to her in-laws house. He came to know
about all these facts through his wife and entertained a suspicion
that the husband of the deceased, in-laws, sister-in-law and her
husband poured kerosene and killed his daughter. Basing on the
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statement of LW.1, the Police registered a case in Crime No.174 of
2000, dated 05.09.2000, for the aforesaid offences. Ultimately, the
Sub-Divisional Police Officer concerned, after completion of
investigation, laid charge sheet against the respondents herein for
the offences under Sections 498-A and 304-B of IPC. Later, the
learned Additional Sessions Judge, framed charges under Sections
498-A and 304-B IPC against the respondents herein, for which
they denied the offence.
4. In order to establish the guilt of the respondent Nos.1 to 4,
the prosecution examined PWs.1 to 13 and got marked Exs.P-1 to
P-29 and MOs.1 to 6. After closure of the evidence of the
prosecution witnesses, the respondents were subjected to 313
Cr.P.C. examination and they denied the incriminating
circumstances and got examined DW.1. DW.1 before the trial
Court was no other than the sister of A-4.
5. The trial Court, after hearing both sides and on
consideration of the evidence available on record, acquitted the
respondent Nos.1 to 4 for the charges framed against them.
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6. As pointed out the State of A.P. did not file any Appeal, as
such PW.1 filed this Criminal Revision Case seeking to revise the
impugned order of the acquittal.
7. Before framing the appropriate point for consideration, it is
pertinent here to refer the scope of the Revision under Sections
397 and 401 Cr.P.C. Section 397 Cr.P.C. contemplates the powers
of the High Court and Sessions Court to exercise the powers of
revision as to the correctness, legality or propriety of any order of
the Court inferior to that. Section 401 of Cr.P.C. specifically deals
with the High Court‟s power of revision. It is no doubt true that
under Sub-section (3) of Section 401 of Cr.P.C. nothing shall be
deemed to authorize a High Court to convert a finding of the
acquittal into one of conviction. So, there is a legal impediment to
the effect that this Court cannot convert a finding of the acquittal
into one of conviction, which has been specifically provided in
Sub-section (3) of Section 401 of Cr.P.C.
8. In Ram Briksh Singh and others v. Amkbika Yadav and
another1, the Apex Court referring to its earlier decision relating
to the powers of the High Court under Section 401 Cr.P.C. held
that the High Court can set-aside the order of acquittal and remit
1 (2004) 7 SCC 665
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the case for retrial where material evidence is overlooked by the
trial Court. This is clearly reflected in a judgment of this Court in
Sama Subhash Reddy v. S. Lalitha and others2 wherein the
Andhra Pradesh High Court dealt with the powers of the revision
under Section 401 Cr.P.C. relying upon a judgment of the Apex
Court, as above. It is quietly evident from the said decision that
the revisional powers in setting-aside the order of acquittal have to
be sparingly and exceptionally exercised when there is a manifest
error of law and procedure and only to prevent the gross
miscarriage of justice. So, if the material evidence available on
record is totally overlooked by the trial Court or when the findings
of the trial Court are perverse the revisional Court can set-aside
the order of acquittal and order for retrial. So, it is quietly evident
that this Court cannot exercise the powers of the Court of Appeal
under Section 386 Cr.P.C. and convert an order of acquittal into
conviction, but it can certainly set-aside the order of conviction
and order retrial, when the public justice demands such a course.
9. In view of the above, now the point that arises for
consideration is:
2 2010 (2) ALD (Crl.) 779 AP
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Whether the judgment of the trial Court in Sessions
Case No.263 of 2003, dated 03.11.2004, suffers with
any illegality, irregularity, impropriety and is perverse
and, if so, whether the matter is liable to be remanded
to the trial Court?
10. POINT: Learned counsel appearing for the petitioner would
vehemently contend that a look at the judgment of the trial Court
means that the learned trial Judge had no inclination whatsoever
to consider the evidence of PWs.1 to 4, kith and kin of the
deceased, who supported the case of the prosecution, and the
learned Judge ordered an order of acquittal on the ground that
other witnesses did not support the case of the prosecution.
Learned trial Judge furnished perverse reasons pointing out the so
called discrepancy in the evidence of PWs.1 and 2. The judgment
of the trial Court is in utter disregard to the well established
principles of law. The learned trial Judge did not deal with
presumptions available to the case of the prosecution in IPC
relating to the charge under Section 304-B IPC as well as in the
Evidence Act, 1872 and did not discuss the evidence of the
Medical Officer, PW.10, and Ex.P-7 post-mortem report, which
reveals that the deceased died due to asphyxia by strangulation
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and there was a fracture of hyoid bone. The learned trial Judge
believed the suggestions that were put forth on behalf of the
respondents/accused, which were not substantiated in any way
but overlooked the evidence without making any effort whatsoever
to find out the bona-fides in the case of the prosecution. He would
further contend that the judgment of the trial Court is totally
perverse against the well established principles of law, overlooking
the evidence available on record and the presumptions available in
favour of the prosecution as such gross miscarriage of justice was
done. He would rely upon a judgment of this Court in Sama
Subhash Reddy (2nd supra) and further submitted that the facts
in the above said case are similar to the present case on hand and
further it is a fit case to order remand of the matter with a
direction to the trial Judge to frame even the charge under Section
302 IPC.
11. Learned counsel appearing for the respondent Nos.1 to 4
would contend that the independent witnesses did not support
the case of the prosecution and there was no corroboration to the
testimony of PWs.1 to 4 from independent sources and the de-
facto complainant was not examined on account of his death.
Ex.P-8 could be marked only through the Investigating Officer
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and the trial Court rightly expected the prosecution to show
corroboration to the evidence of interested witnesses. The
evidence on record would not attract the ingredients of Section
304-B as well as Section 498-A of IPC. The evidence of the
Medical Officer, coupled with Ex.P-7-post mortem report is also
vague. There are no grounds whatsoever to remand the matter.
He further submitted that retrial can only be ordered in
exceptional circumstances and there are no exceptional
circumstances in the instant case. Medical evidence would not
prevail over the oral evidence. With the above submission, learned
counsel appearing on behalf of the respondent Nos.1 to 4 sought
for dismissal of the Criminal Revision Case. Learned counsel for
the respondents in this regard would rely upon the decisions of
the Hon‟ble Apex Court in Vishnu alias Undrya v. State of
Maharashtra3 and Mary Pappa Jebamani v. Ganesan and
others4 and a decision of this Court in Abdul Sayeed v. State of
A.P., Rep. by its Public Prosecutor, High Court of A.P.,
Hyderabad5.
3 (2006) 1 SCC 283
4 (2014) 14 SCC 477
5 2007 (1) ALT (Crl.) 463 (DB)
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12. No arguments are advanced on behalf of the 5th respondent-
State.
13. I have perused the entire material available on record. As
seen from the evidence of PW.1, mother of the deceased, PW.2,
elder sister of the deceased, PW.3, elder brother of the deceased
and PW.4, younger brother of the deceased, they all supported the
case of the prosecution.
14. The so called independent witnesses PWs.5 and 6 did not
support the case of the prosecution. PW.7 also did not support the
case of the prosecution. PW.8 also did not support the case of the
prosecution.
15. Among PWs.5 to 8, PW.5 is said to be the neighbor to the
house of the deceased and PW.6 being the close relative of A-1 i.e.,
the nephew. The evidence of PWs.1 to 4 literally runs in support of
the allegations contained in the statement of the de-facto
complainant insofar as the allegations of demand of additional
amounts and subjecting the deceased to cruelty and dowry
harassment. Though, as per Ex.P-8 report lodged by the de-facto
complainant the respondents/accused might have killed her by
pouring kerosene and setting fire by demanding extra amounts,
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FIR came to be registered under Sections 498-A and 306 IPC.
Later, charge sheet was filed under Sections 498-A and 304-B IPC.
There is a specific whisper by the Investigating Officer in the
charge sheet referring the medical opinion obtained by him and in
the charge sheet filed, the Investigating Officer mentioned that
LW.17-Dr. T. Rani Samyukta, Medical Officer, Government
Hospital, Mangalagiri on receipt of the experts opinion issued final
opinion that the cause of death is due to asphyxia due to
throttling. The defence of the respondents/accused before the trial
Court was that having failed to get a job, the deceased fed up and
committed suicide by pouring kerosene and set ablaze her and by
then none of the accused were present in the house. The Medical
Officer, PW.10, spoken about the contents of the post-mortem
report and spoken about the final opinion as regards cause of
death as asphyxia due to throttling. There was no dispute that the
occurrence in question was happened in the house of the
respondents/accused. Even after the death, the dead body was
brought to the house of the accused alone from the Government
General Hospital, Guntur. There is no dispute that the death of
the deceased had occurred within 7 years from the date of her
marriage. Therefore, the death of the deceased appears to be
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otherwise than under normal circumstances, hardly within 4 years
of her marriage.
16. Now this Court is not supposed to express any opinion that
the learned Additional Sessions Judge ought to have appreciated
the evidence in a particular way. Hence, this Court can only
examine as to whether the appreciation of the evidence is totally
perverse, overlooking the evidence on record and the legal
principles covering the issue. Further, this Court has to see as to
whether there was any non-application of mind by the learned
Additional Sessions Judge to the provisions of law and such a
judgment of the trial Judge carried any total miscarriage of justice.
17. Now coming to the judgment of the trial Court, learned
Additional Sessions Judge in the judgment referred the arguments
of the learned counsel for the accused before the trial Court to the
effect that there is no evidence with regard to the dowry
harassment and there is no direct evidence to prove the offence
and that accused are entitled for acquittal. What the prosecution
has argued was not reflected in the judgment of the trial Court. He
referred to the evidence of PWs.1 to 4 in substance. At Para No.15
of the judgment, the learned Judge framed the point as follows:
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"Whether the prosecution proved the guilty of the offence
against all the accused No.1 to 4 beyond all reasonable
doubts offence punishable U/s.498-A and 304-B IPC?"
18. From Para Nos.16 to 26, again he referred the case of the
prosecution. At Para No.27, he made a mention that PWs.2 to 4
supported the evidence of PW.1, because they are daughter and
sons of PW.1. He referred that PWs.5 to 8 did not support the
case of the prosecution. He pointed out a discrepancy from the
evidence of PWs.1 and 2, according to the judgment of the trial
Court. According to PW.1 after receiving telephone call from A-1
with regard to the death of the deceased, she and Padmavathi,
elder daughter, left for Mangalagiri to the house of A-1 to A-3 and
came to know that she was taken to Mangalagiri Private Hospital
and they were not there and the private hospital staff asked them
to take the deceased to Guntur Hospital and they took her to
Guntur and the Doctors stated that it is better to take the injured
to the house. Later, she died. He observed that PW.2 deposed in a
different manner as if she and her mother went along with the
deceased to Guntur in a car. The so called discrepancy pointed
out by the trial Court has no significance at all. The trial Court
made a comment that the prosecution did not file any proof to
show that the de-facto complainant paid the amounts to the
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accused. When the evidence of PWs.1 to 4 literally spoken about
the alleged harassment that was meted out to the deceased, the
trial Court made a finding that their evidence did not prove the
harassment as independent witnesses did not support the case,
the accused are entitled for acquittal.
19. In my considered view, the reasons furnished by the trial
Court are nothing but perverse. In a case of dowry harassment,
the natural witnesses are kith and kin of the deceased. The
incident in question was said to be happened in the house of the
accused. What the trial Court was expected to do was to analyze
the evidence as to whether the death of the deceased was
occurred otherwise than under normal circumstances and the
evidence adduced by the prosecution is believable or not. There is
no dispute that there is a presumption under Section 304-B IPC
itself that if the death of a woman occurs otherwise than under
normal circumstances within seven years of her marriage, it shall
be called as a dowry death. Apart from this, according to Section
113-B of the Indian Evidence Act, when the question is as to
whether a person has committed a dowry death of a woman and it
is shown that soon before her death such woman has been
subjected by such person to cruelty or harassment for, or in
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connection with, any demand for dowry, the Court shall presume
that such person had caused the dowry death. Virtually, the trial
Court Judge did not discuss anything about the presumption
under Section 113-B of the Indian Evidence Act.
20. Insofar as the charge framed under Section 304-B IPC is
concerned, it runs that "You A-1 to A-4 poured the kerosene and
set fire on the body of the deceased Srivardhini and killed her for
which she succumbed to injuries". This Court would like to make it
clear that the essential ingredients of Section 304-B IPC, dowry
death, and Section 302 IPC, murder, are totally different. The
learned trial Judge, having mentioned in the charge that A-1 to A-
4 poured the kerosene and set fire on the body of the deceased
Srivardhini and killed her, did not frame the charge under Section
302 IPC. There is no whisper in the judgment of the trial Court as
to the application of mind of the learned trial Judge to the
evidence of PW.10, Medical Officer, and Ex.P-7, which means that
the death of the deceased was due to asphyxia due to throttling.
So, it is a clear case where the learned Additional Sessions Judge,
without any proper reason overlooked the evidence of PWs.1 to 4
and maintained perverse reasons to disbelieve the evidence of
PWs.1 to 4. The trial Court Judge ought to have discussed as to
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how and why the evidence of PWs.1 to 4 was not believable.
Instead of analyzing the evidence of PWs.1 to 4, he recorded
perverse reasons by pointing out the so called discrepancy
between the evidence of PWs.1 to 4, which cannot be taken as a
discrepancy and further overlooked the evidence of PW.10, the
Medical Officer, and the findings in the post-mortem report.
21. Further, the finding of the learned Additional Sessions
Judge in upholding the defence plea of alibi is also without any
legal basis. During the course of cross-examination of PW.1, the
accused got elicited from her mouth that the house of A-2 to A-3
consists of two rooms and they (de-facto complainant) brought the
dead body and laid in the room of northern side portion of A-2
and A-3. It is further elicited that the deceased daughter and A-1
used to live in the northern side room and towards northern room
there is a bedroom. It is elicited that to the southern side of the
said portion, A-2 and A-3 are living. Since the date of marriage A-
1 and his wife i.e., Srivardhini used to live separately in a room on
southern side. Within a distance of 200 yards from the house of
A-2 and A-3, the house of A-4 is situated. During the course of
cross-examination, PW.1 denied the suggestion that on the date
of incident, A-4 went to Vijayawada along with Katsyani and
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Swathi on the occasion of birthday of A-4. She denied that at the
time of incident A-3 was at the house of Nandam Venkata Rao
and that on the same day A-2 went for purchasing and selling
milk. She denied that at the time of alleged incident, A-1 was
teaching tuitions. She denied that by the time A-4 and her friends
Katsyani and Swathi returned from Mangalagiri to Vijayawada,
already incident was over.
22. By virtue of the above contention of the accused was that
they were elsewhere at the time of incident in question. This
Court would like to make it clear that the alibi is not an exception
envisaged in the IPC or in any other law and it is rule of evidence
recognized by Section 11 of the Indian Evidence Act that the facts
inconsistent with the fact in issue are relevant. When the accused
took the plea of alibi, burden of proof lies on him under Section
103 of the Indian Evidence Act. The Hon‟ble Supreme Court in
Pappu Tiwary v. State of Jharkhand6 held that the burden to
establish the plea of alibi on the accused is heavy and the plea of
alibi in fact is required to be proved with certainty so as to
completely exclude the possibility of the presence of the accused
at the place of occurrence. The Hon‟ble Supreme Court reiterated
6 2022 LiveLaw SC 107
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the said decision by relying upon the earlier judgment in Jitender
Kumar v. State of Haryana7.
23. In this regard, coming to the findings of the learned
Additional Sessions Judge at Para No.29 of the judgment, it was
held that according to the evidence of PW.1 on the date of offence,
A-4 and DW.1 went to Vijayawada on the occasion of birthday of
A-4. It is rather surprising to note that such a finding was given
by the trial Court without any basis. In my considered view, there
is no such admission from the mouth of PW.1. It was DW.1 who
deposed so. Even the trial Judge did not analyze the evidence of
DW.1 and simply believed the evidence of DW.1. The learned trial
Judge further gave a finding that, at the time of offence, A-2 and
A-3 were also not there and further A-1 went for teaching tuitions.
DW.1 has never spoken about the absence of A-1 to A-3. There
was no evidence at all to prove the absence of A-1 to A-3 in the
house of A-1 to A-3 at the time of the incident. There were no
probabilities in support of such a defence, leave apart any
substantive evidence. The suggestions that were put forth before
PW.1 were denied. So, basing on the suggestions, the learned trial
Judge upheld the contention of the plea of alibi. On the other
7 AIR 2012 (SC) 2488
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hand, the learned trial Judge did not analyze the evidence of
PWs.1 to 4 and has simply thrown out the evidence of PWs.1 to 4.
The approach of the learned Additional Sessions Judge in
upholding the plea of alibi of A-1 to A-4 is nothing but baseless
and perverse without analyzing the evidence on record and also
against the established legal principles enunciated by the Hon‟ble
Supreme Court in the above referred decision.
24. This Court has looked into the decision cited by learned
counsel for the respondents as regards the contention that the
medical evidence would not prevail over the ocular evidence. It is
not the stage to look into all those aspects, especially when the
judgment of the trial Court is perverse overlooking the crucial
evidence on record. Even in the decision cited by learned counsel
for the respondents/accused in Mary Pappa Jebamani (4th
supra), it is held that retrial can be ordered in extraordinary
circumstances. The case on hand presents an extraordinary
situation. In Sama Subhash Reddy (2nd supra), in a similar case
on hand, where the trial Judge ignored the evidence of kith and
kin of the deceased and the postmortem report and recorded the
order of acquittal, the Composite High Court of Andhra Pradesh
remanded the case to the trial Court for framing appropriate
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charges and for retrial with a finding that the retrial does not
mean that the evidence available on record can be erased. In
Sama Subhash Reddy (2nd supra), the injuries on the dead body
of the deceased were ante mortem in nature i.e., prior to the death
of the deceased. Having regard to the above, this Court is of the
considered view that the learned Additional Sessions Judge
rendered the judgment in a casual and mechanical manner
without making any effort to discuss the evidence on record and
without examining the evidence in accordance with law. A bare
look at the judgment reveals that the learned Additional Sessions
Judge in utter disregard of the material before him and also in
utter ignorance of the relevant provisions of law dealt the issue
which resulted in flagrant miscarriage of justice. It is quite
unfortunate that the State of A.P. did not file any Appeal though
the judgment of the trial Court is perverse. In such
circumstances, it is quite natural for PW.1 to knock the doors of
this Court by way of Revision. Hence, it is a fit case to remand the
matter to the trial Court with certain directions.
25. The allegations in the charge sheet and the evidence of
PW.10, Medical Officer, coupled with Ex.P-7 means that there was
fracture of hyoid bone and the cause of death was due to asphyxia
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due to throttling and the injuries were ante mortem in nature.
Even the Medical Officer, as regards the burn injuries, having
considered the Histo-Pathology report, regarding nature of
specimen i.e., skin over thigh opined that skin and subcutaneous
tissue mostly burnt with loss of cellular details but a few areas
show vasodilatation with stagnation of blood suggestive of vascular
reaction at the time of burns indicating ante mortem in nature. So,
according to the evidence of PW.10, the factor for the cause of the
death of the deceased was asphyxia due to throttling. Now it is
appropriate to refer the decisions of the Hon‟ble Apex Court in
Rajbir and others v. State of Haryana8 and Jasvinder Saini
and others v. State9 (Government of NCT of Delhi).
26. As the matter is going to be remanded, the trial Court has to
take care to frame appropriate charges, in the light of the above
decisions. In Rajbir and others (8th supra), the Hon‟ble Supreme
Court dealt with a situation where the trial Court awarded life
sentence under Section 304-B IPC to the accused and the Hon‟ble
High Court of Haryana reduced it to ten years. The evidence on
record shows that it was a case of murder as such the Hon‟ble
Supreme Court directed the trial Courts in India that to add
8 2010 15 SCC 116
9 (2013) 7 SCC 256
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ordinarily Section 302 IPC to charge of Section 304-B IPC. The
judgment of the Hon‟ble Supreme Court in Rajbir and others (8th
supra) is applicable to all the trial Courts in India and,
subsequently, the Hon‟ble Supreme Court in Jasvinder Saini (9th
supra) had an occasion to examine the scope of directions that
were given in the earlier decision and held at Para No.13 that
according to the judgment in Rajbir and others (8th supra), the
Court directed addition of charge under Section 302 IPC to every
case in which the accused are charged under Section 304-B IPC.
The Hon‟ble Supreme Court held that in their opinion that was not
true purport of the earlier directions and the direction was not
meant to be followed mechanically and without due regard to the
nature of the evidence available in the case. While holding so, the
Hon‟ble Supreme Court clarified as follows:
"All that this Court meant to say was that in a case where
a charge alleging dowry death is framed, a charge under
Section 302 can also be framed if the evidence otherwise
permits. No other meaning could be deduced from the
order of this Court. It is common ground that a charge
under Section 304B Indian Penal Code is not a substitute
for a charge of murder punishable under Section 302. As
in the case of murder in every case under Section 304B
also there is a death involved. The question whether it is
murder punishable under Section 302 Indian Penal Code
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or a dowry death punishable under Section 304B Indian
Penal Code depends upon the fact situation and the
evidence in the case. If there is evidence whether direct or
circumstantial to prima facie support a charge under
Section 302 Indian Penal Code the trial Court can and
indeed ought to frame a charge of murder punishable
under Section 302 Indian Penal Code, which would then
be the main charge and not an alternative charge as is
erroneously assumed in some quarters. If the main charge
of murder is not proved against the accused at the trial,
the Court can look into the evidence to determine whether
the alternative charge of dowry death punishable under
Section 304B is established. The ingredients constituting
the two offences are different, thereby demanding
appreciation of evidence from the perspective relevant to
such ingredients. The trial Court in that view of the matter
acted mechanically for it framed an additional charge
under Section 302 Indian Penal Code without adverting to
the evidence adduced in the case and simply on the basis
of the direction issued in Rajbir's case (supra). The High
Court no doubt made a half hearted attempt to justify the
framing of the charge independent of the directions in
Rajbir's case (supra), but it would have been more
appropriate to remit the matter back to the trial Court for
fresh orders rather than lending support to it in the
manner done by the High Court".
27. The directions of the Hon‟ble Supreme Court, as above, are
squarely applicable to the present case on hand. As this Court
already pointed out when the allegations in the charge sheet are
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that the cause of death was due to asphyxia by throttling in view
of the post-mortem report, when the charge runs that the accused
poured kerosene on the body of the deceased and set her ablaze,
the trial Court ought to have considered framing of the charge
under Section 302 IPC. Apart from it, by virtue of the directions of
the Hon‟ble Supreme Court as above, the learned Additional
Sessions Judge, now has to consider the material available on
record to frame the charge under Section 302 IPC in addition to
the charge under Section 304-B IPC.
28. In the light of the above, whenever the trial Courts are
dealing with the allegations under Section 304-B IPC, it is
incumbent on the part of the Courts to consider as to whether the
material available on record would warrant framing of charge
under Section 302 IPC. Such an exercise is to be done by the
Courts irrespective of as to whether Police laid the charge sheet
under Section 302 IPC or not. As the issue is relating to menace of
dowry deaths, where there may be occasions that a case of murder
may be projected as a dowry death, a duty is cast upon the trial
Courts to take care of as to whether the material available on
record would warrant framing of charge under Section 302 IPC
also in addition to the charge under Section 304-B IPC.
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29. The Investigating Officer having conducted the investigation
of the case on the premise that the deceased was burnt to death or
committed suicide had an occasion to look into the findings of the
post-mortem report which altogether presents a different situation
that she died due to asphyxia by strangulation. He ought to have
considered as to whether the charge sheet could also be filed
under Section 302 IPC. Such an exercise was not done by the
Investigating Officer. Coming to the contents of the inquest report,
the opinion of the inquest panchayatdars is that either the
deceased may be murdered or she might have committed suicide.
Having extracted the finding in the postmortem report in the
charge sheet, the Investigating Officer came to the conclusion that
it is a case of dowry death. He also failed to distinguish the
commission of murder and the commission of dowry death.
29. Having regard to the above and totality of the facts and
circumstances, the Criminal Revision Case is allowed by setting-
aside the judgment of the trial Court in S.C. No.263 of 2003, dated
03.11.2004, and the matter is remanded to the learned V
Additional District and Sessions Judge, Guntur, to consider
framing of a charge under Section 302 IPC, if the material on
record warrants the same, in addition to the charge under Section
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304-B IPC, which was already framed, and to conduct retrial, by
permitting the prosecution to adduce additional evidence, if any,
and to recall the witnesses that were examined already by the
prosecution and defence, if they so desires. This direction does not
meant to eschew the evidence available on record as the intention
of the Court in giving such direction is only to permit additional
evidence, if any, and for recalling of witnesses as desired by the
prosecution and the defence. The learned V Additional District and
Sessions Judge, Guntur, is hereby directed to complete the entire
process within four (4) months and to dispose of the matter, in
accordance with law, without being influenced by any of the
observations made hereinabove, at the time of final disposal of the
Sessions Case, as the aforesaid observations made by this Court
are only to point out the manner in which the matter was disposed
of by the trial Court.
30. Respondents/Accused are hereby directed to appear before
the learned V Additional District and Sessions Judge, Guntur, on
27.10.2022 to take note of further proceedings. The Registry is
directed to send the entire lower court record along with a copy of
this order through a special messenger to the learned V Additional
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District and Sessions Judge, Guntur, on or before 22.10.2022
without fail.
31. The Registry is directed to mark a copy of this judgment to
all the Criminal Courts in the State to follow the directions
scrupulously while dealing with 304-B IPC cases and also to mark
a copy to the Director General of Police, for circulation of the same
to all the Police Officers, who are likely to deal with investigation of
the cases for the offence under Section 304-B IPC.
Consequently, Miscellaneous Applications pending, if any,
shall stand closed.
________________________________
JUSTICE A.V.RAVINDRA BABU
Date :20.10.2022
DSH
