Telangana High Court

The State Of A.P., vs Shymala Linga Swamy, on 16 March, 2021

Bench: G Sri Devi

               HONOURABLE JUSTICE G. SRI DEVI

               CRIMINAL APPEAL No.1405 of 2009

JUDGMENT:

The appellant-State filed the present appeal by invoking the

provision under Section 378(1) and (3) of the Code of Criminal

Procedure, challenging the judgment dated 28.07.2007 in

S.C.No.419 of 2006 on the file of the Assistant Sessions Judge at

Nalgonda, wherein and whereby the learned Sessions Judge

acquitted the respondents/A1 to A3 for the offence punishable under

Section 306 IPC.

2. The case of the prosecution, in brief, is that the marriage of A1

with the deceased Shyamala Manga was performed at about 5 years

prior to the date of occurrence i.e., 10.5.2006, and after some time,

A1 along with A2 and A3 used to harass the deceased mentally and

physically on the ground that she was not conceiving, for which she

attempted to commit suicide once, and after the panchayat

conducted by the elders, she joined with the company of A1 and

later, she gave birth to a female child. Since then, all the accused

used to harass the deceased on the ground that she gave birth to a

female child. On 10.05.2006, during morning hours, A1 to A3

quarreled with the deceased on the ground that she did not properly

stitch the petty coat of A3 and they instigated her to die, thereupon,

she went inside the house, set herself ablaze at 7.00 AM., and

sustained burn injuries and immediately, she was shifted to Osmania

General Hospital, and on the way, she told her parents about the

harassment of the accused and later, she died near Ramoji Film

City. Based on the report of P.W.1-father of the deceased, a case in GSD, J Crl.A.No.1405 of 2009

Cr.No.25 of 2006 was registered under Section 306 IPC against the

accused.

3. Heard learned Assistant Public Prosecutor for the appellant-

State, Sri G.L.Narasimha Rao, learned counsel for the

respondents/A1 to A3 and perused the record.

4. A perusal of the impugned judgment shows that in Ex.P1-

report given by P.W.1 immediately after the death of the deceased,

he stated that the accused used to harass the deceased immediately

after the marriage on the ground that she was not conceived and in

that connection, a panchayat was conducted and on the advice of

the elders, the deceased again joined the society of A1. If that

allegation is true, one of the strong circumstances for the

prosecution is that the deceased was subjected to cruelty and

harassment by her husband and in-laws. But the investigating

Officer did not examine those elders, who conducted the panchayat

and that there is no explanation for non-examination of those elders

as witnesses. Therefore, non-examination of the material witnesses

to support the case of the prosecution is fatal to the case of the

prosecution and it also belies the veracity of the prosecution

witnesses. Moreover, in this case, the version of the prosecution is

that A1 to A3 used to harass the deceased on the ground that she

has not given birth to a male child. But, how many occasions she

was harassed by her husband and in-laws, whether she had

informed to her parents while she was being taken to Osmania

General Hospital or on previous occasions also she had stated to

her parents, if so, on how many occasions and what steps had taken GSD, J Crl.A.No.1405 of 2009

regarding the harassment, there is absolutely no evidence on record.

It was not the specific case of the prosecution that on the date of the

alleged occurrence, because the deceased could not stitch the petty

coat properly, A3 quarreled with her, for which she committed

suicide. The trial Court has rightly pointed out that any abetment to

commit suicide shall be soon before the suicide attempt and in all

probabilities, the alleged harassment shall be for an ordinary prudent

human being to commit suicide. Simple abuses by somebody or an

isolated incident are not sufficient to constitute the abetment.

5. The other important aspect in this case is that the deceased,

on the way to Osmania General Hospital, told her parents and others

about the harassment made by the accused on 10.05.2006 and also

their harassment on earlier occasions. In this regard, P.W.1 stated

in his statement to police that on the way to Hyderabad, the

deceased told them that A1 to A3 were responsible for her death

and later, she died in the hospital at 10.00 AM. P.W.2 stated in her

statement that the deceased told her parents in the hospital itself

that her husband and her mother-in-law were responsible for her

death. However, P.Ws.3 and 4 in their statements to the police have

stated that on the way to the hospital only, the deceased told them

about the harassment. But during the course of evidence, P.W.s.1

and 2 have stated contrary to their earlier statements made to the

police. In this regard, they stated that when they were shifting the

deceased to Osmania General Hospital in the car, on the way, their

daughter did not speak about any harassment and later, she died in

the hospital. Thus, as per the evidence of P.Ws.1 and 2, the GSD, J Crl.A.No.1405 of 2009

deceased was not in a fit state of mind to reveal anything about the

harassment of accused on the way to the hospital or in the hospital.

However, P.W.2 stated in her evidence that the deceased, on the

way of Osmania General Hopsital, told them about the harassment,

which is quite contrary to the statement of her husband before the

Court. Even before the Court, the statements of P.Ws 1 and 2 is

that their son also accompanied them to the hospital in a car, but in

his statement to the police he denied to have gone to the hospital in

the car. Thus, the contradictory statements of these prosecution

witnesses create in high degree of suspicion about the allegation of

the prosecution that the deceased, on the way to Osmania General

Hospital, told about the harassment caused by the accused on the

date of the alleged occurrence and it is apparent on the face of

record that such allegation is only the creation of prosecution for the

purpose of this case.

6. In this case, P.Ws.3 and 4 are neighbors and independent

witnesses. They have categorically stated that after coming to know

that Shyamala Manga received burn injuries, they rushed to the

house of the accused, extinguished the flames and shifted her to

Osmania General Hospital. There was nothing on record to prove

that these witnesses have deposed falsehood in order to save the

accused. Another important factor in this case is that P.W.10, who is

the investigating officer, had issued express FIR, which reached the

Court on 16.05.2006 at 4.30 PM through post along with the inquest

report-Ex.P4. Since the offence is grave in nature, it is the duty of

the investigating officer to send the First Information Report and the GSD, J Crl.A.No.1405 of 2009

written complaint through a special messenger to the Court

immediately. However, those reports were sent through post, from

which, a presumption can be drawn that after conducting inquest

over the dead body only, the complaint was received by the

investigating officer and thereafter, the case was registered and that

is the reason why P.W.10 send Ex.P1-report and FIR along with the

inquest report to the Court, which creates doubt about the veracity of

Ex.P1. Moreover, in this case, no GD entry number was mentioned

at Col.No.3 of the CC in Ex.P-10, which also creates doubt about

lodging of FIR at the relevant point of time as narrated by the

prosecution. Thus, the investigation conducted by the investigating

officer creates strong suspicion and also perfunctory nature. Thus,

the trial Court, after considering the entire evidence on record, has

rightly held that the prosecution has miserably failed to prove that all

the accused had harassed the deceased on 10.05.2006 and also

prior to the said date for not giving birth to a male child and due to

that harassment, she committed suicide and accordingly, found the

accused not guilty of the offence under Section 306 IPC and

acquitted them under Section 235(1) Cr.P.C. Therefore, I do not find

any illegality or perversity in the findings of the trial Court.

7. In Mrinal Das v. State of Tripura1 the Apex Court held as

under:

"It is clear that in an appeal against acquittal in the absence of perversity in the judgment and order, interference by this Court exercising its extraordinary jurisdiction, is not warranted. However, if the appeal is heard by an appellate

1 (2011) 9 SCC 479 GSD, J Crl.A.No.1405 of 2009

court, being the final court of fact, is fully competent to re- appreciate, reconsider and review the evidence and take its own decision. In other words, law does not prescribe any limitation, restriction or condition on exercise of such power and the appellate court is free to arrive at its own conclusion keeping in mind that acquittal provides for presumption in favour of the accused. The presumption of innocence is available to the person and in criminal jurisprudence every person is presumed to be innocent unless he is proved guilty by the competent court. If two reasonable views are possible on the basis of the evidence on record, the appellate court should not disturb the findings of acquittal. There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is found and to come to its own conclusion. The appellate court can also review the conclusion arrived at by the trial Court with respect to both facts and law. While dealing with the appeal against acquittal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and only by giving cogent and adequate reasons set aside the judgment of acquittal. An order of acquittal is to be interfered with only when there are "compelling and substantial reasons" for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference. When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc., the appellate court is competent to reverse the decision of the trial Court depending on the materials placed."

8. In Maloth Somaraju v. State of Andhra Pradesh2 the Apex

Court held that there can be no two opinions that merely because

the acquittal is found to be wrong and another view can be taken,

the judgment of acquittal cannot be upset. The appellate Court has

more and serious responsibility while dealing with the judgment of

acquittal and unless the acquittal is found to be perverse or not at all

supportable and where the appellate Court comes to the conclusion

2 (2011) 8 SCC 635 GSD, J Crl.A.No.1405 of 2009

that conviction is a must, the judgment of acquittal cannot be upset.

The appellate Court has to examine as to whether the trial Court,

while upsetting the acquittal, has taken such care.

9. In view of the judgments referred to above and having regard