Ch.Narsimha Reddy 3 Others vs The State Of Ap.,
2022 Latest Caselaw 4319 Tel

 THE HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY
                       AND
     THE HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY

               Criminal Appeal No.1181 of 2013

JUDGMENT     (per Hon'ble Sri Justice A. Venkateshwara Reddy):

1. This Criminal Appeal is preferred by the appellants/

accused Nos.1 to 4 against the judgment dated 29.10.2013

in Sessions Case (SC) No.217 of 2012 on the file of the

learned IX Additional District and Sessions Judge (Fast

Track Court), Ranga Reddy at L.B. Nagar, wherein the

accused 1 to 4 were found guilty for the offence punishable

under Section 302 read with Section 34 of the Indian Penal

Code, 1860 (for short 'IPC') and sentenced to undergo

imprisonment for life and also to pay a fine of Rs.1,000/-

each and in default, to undergo simple imprisonment of

three months.

2. From the date of judgment in SC No.217 of 2012 i.e.,

from 29.10.2013, the accused 1 to 4 are in jail as convict

prisoners. That on 29.07.2022 during hearing, the learned

counsel for appellants has filed the proceedings dated

17.03.2022 of the Superintendent of Central Prison,

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Charlapally wherein and whereunder it is mentioned that

on 20.08.2020 when the accused No.1/appellant No.1

complained breathlessness and chest pain, as per the

medical advice, he was shifted to Osmania General

Hospital for better treatment and on the same day received

telephonic message from the hospital stating that the

appellant No.1/accused No.1 died. Accordingly, the said

fact is recorded, and as per the proceedings dated

17.03.2022 of the Superintendent of Central Prison,

Charlapally the case against the appellant No.1/ accused

No.1 is abated. Thus, this Criminal Appeal is proceeded

only against the appellants/accused 2 to 4.

3. Briefly stated the prosecution version as unfolded

during trial is as follows:

The deceased-Srinivas Reddy is the husband of PW.1.

The deceased and accused 1 to 4 are known to each other

since long time and they are residents of Ramaraonagar,

Borabanda within the limits of Sanathnagar Police Station.

At the request of accused 1 to 4, the deceased has

arranged an amount of Rs.2 lakhs as loan from one known

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person, but the accused have failed to repay the said loan.

As a result, the person who arranged the hand loan started

visiting the house of deceased insisting for repayment of

the loan amount. Despite repeated demands, the accused

1 to 4 have been postponing the repayment under one

pretext or the other. Finally on 01.10.2008 the deceased

went to the house of accused with a demand for repayment

of the loan mount, but they failed to repay the said

amount. The deceased did not leave the house of accused,

insisting repayment of the amount and on that the accused

came to the house of deceased and asked PW.1 (wife of the

deceased) why she sent her husband to their house, as

such they remained at the house of PW.1 till 1:00 a.m. on

02.01.2008. During that night, the deceased did not return

to his house. That on 02.10.2008 at about 6:00 a.m. PW.1

came to know through her relatives that her husband died

at the house of accused No.1 and his dead body was

hanging to the railing of the house of accused. As such,

she gave a report to the police alleging that her husband

died due to the harassment and abetment by A.1, his wife

and sons i.e., the accused 1 to 4, and requested for taking

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necessary action against the accused 1 to 4. On the report

lodged by PW.1, the Station House Officer, Sanathnagar

Police Station has registered a case in Crime No.423 of

2008 for the offence punishable under Section 306 of IPC.

4. In the course of investigation, witnesses were

examined, panchnama was conducted at the scene of

offence, inquest was held over the dead body of deceased in

the presence of panch witnesses and the dead body of

deceased was subjected to post-mortem examination. The

Doctor-PW.11, who conducted autopsy over the dead body

of deceased, has issued Ex.P.7 post-mortem examination

report opining that the death of deceased is due to

Asphyxia, as a result of homicidal hanging. Thereupon,

the section of law is altered from 306 IPC to 302 IPC. The

investigation discloses that on 01.10.2018 in the night the

deceased went to the house of accused with demand for

repayment of loan amount of Rs.2 lakhs arranged by him,

but they failed to repay the said amount, abused and beat

him. The deceased did not leave the house of accused

insisting for repayment of the loan amount, on that the

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accused also went to the house of PW.1, quarrelled with

her alleging that why she sent the deceased to their house

and remained at her house till 1:00 a.m. on 02.10.2008.

By 06:00 a.m. on 02.10.2008 PW.1 received information

that the deceased was found dead hanging to the railing of

the house of accused with a rope. During the night of

02.10.2008 all the accused 1 to 4 killed the deceased by

way of hanging with a rope to the railing of their house.

Thus, the accused 1 to 4 have committed the offence

punishable under Section 302 read with Section 34 IPC.

5. It appears that after giving necessary copies as

required under Section 207 of the Criminal Procedure

Code, 1973 (for short 'Cr.P.C.'), the case was committed by

the learned Magistrate to the Court of Sessions. The

learned Sessions Judge registered a case, vide SC No.217

of 2012 and made over to the learned IX Additional

Sessions Judge (FTC), Ranga Reddy at L.B. Nagar, who

after hearing the parties framed the charges for the offence

punishable under Section 302 read with Section 34 IPC, to

which the appellants pleaded not guilty and claims to be

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tried. On this, the prosecution has examined as many as

12 witnesses and got marked Exs.P.1 to P.7 and MO.1. In

the cross-examination of PWs.1 & 2, Exs.D.1 to D.4 are

marked which were confirmed by the Investigating Officer.

6. The relevant oral and documentary evidence was put

to the accused under Section 313 of Cr.P.C. In reply to the

question Nos.4, 5, 6, 8 and 9, all the accused have

answered that the dead body of the deceased was found

lying at their house, panchnama was conducted, the MO.1-

rope was seized and rest of the prosecution case is false.

The trial Court after hearing both the parties, found the

appellants/A.1 to A.4 guilty of the charge for the offence

punishable under Section 302 read with Section 34 of IPC,

convicted and sentenced them to undergo imprisonment

for life and also to pay a fine of Rs.1,000/- each and in

default to undergo simple imprisonment of three months.

Assailing the said judgment dated 29.10.2013 in SC

No.217 of 2012, this criminal appeal is preferred by the

appellant/accused 1 to 4.

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7. Heard the learned counsel for the appellants/accused

2 to 4 and the learned Public Prosecutor. Perused the

material available on record. The detailed submissions

made on either side have received due consideration of the

Court. The learned counsel for the appellants also

submitted a brief note with synopsis and relied on the

following decisions:

i) Gargi v. State of Haryana1;

ii) Reena Hazarika v. State of Assam2;

iii) Raj Kumar Singh alias Raju alias Batya v.

State of Rajasthan3; and

iv) State of Punjab v. Sucha Singh and others4.

8. The prosecution in all examined PWs.1 to 12 to

unfold their case against the appellant/accused. Out of

them, PW.1 is the wife of deceased. She has lodged Ex.P.1-

report before the police. PW.2 is the daughter of deceased,

whereas PWs.3 and 4 are brothers of PW.1. PWs.5, 6, 8

and 9 are circumstantial witnesses of whom PW.9 is the

(2019) 9 SCC 738

AIR 2018 SC 5361

AIR 2013 SC 3150

2003 CRI.L.J. 1210

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tenant of accused in the first floor of their house. PW.7 is

a panch witness for the scene of offence panchnama, the

rough sketch and inquest panchnama which are marked

as Exs.P.2 to 4 respectively. PW.11 is the Doctor, who

conducted autopsy over the dead body of deceased and

issued Ex.P.7 post-mortem examination report. PWs.10

and 12 are the investigating officers, who issued FIR,

investigated into and filed the charge sheet. Ex.P.1 is the

report lodged by PW.1. Exs.P.2 to P.4 are the scene of

offence panchnama, the rough sketch of the scene of

offence and inquest panchnama respectively. Ex.P.5 is the

First Information Report. Ex.P.6 is the alteration memo

whereunder section of law is altered from 306 of IPC to 302

of IPC. Ex.P.7 is the post-mortem examination report.

Ex.D.1 is the disputed portion of Ex.P.1, which is marked

in the cross-examination of PW.1. Similarly, Ex.D.2 is part

of Section 161 of Cr.P.C. statement of PW.1. Exs.D.3 and

D.4 are part of Section 161 Cr.P.C. statement of PW.2.

When these statements were confronted to the

Investigating Officer-PW.12, he has admitted that PWs.1

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and 2 have stated as in Exs.D.1 to D.4 before him. MO.1 is

the rope that was used for commission of offence.

9. PW.1 is the de facto complainant and wife of

deceased. She gave Ex.P.1 report to the police wherein it is

mentioned that her husband has arranged loan of Rs.2

lakhs to the accused. At the time of taking loan, they have

promised to repay the same within six months, but they

failed to do the same, thereby her husband has demanded

the accused for repayment of the said amount, but the

accused failed to repay the same. That on 01.10.2018 the

deceased went to the house of accused with demand for

repayment of the amount, they abused him and beat him

without paying the amount and when the deceased did not

leave their house, the accused came to the house of PW.1

at about 10 p.m. on 02.10.2008 and abused her stating

why she sent the deceased to their house and all the

accused have quarrelled with her, remained at her house

till 01:00 a.m. in the night. Thereafter, at about 6 a.m. on

02.10.2008 she came to know through her relations that

her husband is found dead, she went to the house of

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accused and found the dead body of her husband hanging

with rope to the railing to the house of accused. She

suspected that the accused might have killed her husband

to avoid repayment of the said loan amount. PW.1 has

supported the prosecution case. However, in her evidence

Ex.D.1 is marked in Ex.P.1 report lodged by her wherein it

is mentioned that the accused might have killed her

husband to avoid repayment of the said loan amount.

Similarly, Ex.D.2 is marked in her Section 161 Cr.P.C.

statement which is to the effect that she stated before the

police, that the deceased has committed suicide by hanging

himself to the railing near steps at the house of accused

and died.

10. PW.2 is the daughter of PW.1 and the deceased. She

has supported the oral evidence of her mother-PW.1.

However, in her cross-examination Exs.D.3 and D.4 are

marked which are part of her Section 161 Cr.P.C.

statement. Ex.D.3 is to the effect that deceased went to

the house of accused for money and had a heated

discussion with them and the accused have threatened

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him, thereby, being sensitive, he committed suicide. Ex.D.4

is to the effect that on 0.10.2008 the accused No.1 and his

family members came to her house and warned PW.1.

However, when Exs.D.1 to D.4 were confronted to the

Investigating Officer-PW.12, he has stated that PW.1 has

mentioned as in Ex.D.1 in her report-Ex.P.1 and she has

also stated as in Ex.D.2 in her 161 Cr.P.C. statement

recorded by him. Similarly, PW.12 confirmed that PW.2

has stated before him as in Exs.D.3 and D.4. The Exs.D.1

to D.4 are important and vital contradictions going to the

root of the prosecution case. As per Ex.D.1, PW.1 has

mentioned in Ex.P.1 that she is suspecting that the

accused might have killed the deceased to avoid repayment

of loan amount. Similarly, Exs.D.1 to D.4 only shows that

due to the pressure and conduct of the accused, the

deceased has committed suicide. Thus, as per the earliest

version of PW.1 in her Ex.P.1 report, she suspected that,

the accused might have killed the deceased to avoid

repayment. Further, as per Exs.D.2 to D.4, PWs.1 and 2

have stated to the police that due to pressure and conduct

of the accused, the deceased committed suicide.

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11. PWs.3 and 4 who are the brothers of PW.1 and

brother-in-law of deceased have only spoken through about

the deceased arranging Rs.2 lakh loan to the accused and

their failure to repay the said amount. On that the

deceased demanded for repayment, on 01.10.2008 the

deceased went to the house of accused with such demand

and that on 02.10.2008 the dead body of the deceased was

found hanging to the house of accused.

12. Similarly, PWs.5, 6 and 8 are independent

circumstantial witnesses. They have simply stated that

they came to know that the accused borrowed money from

the deceased and failed to repay the said amount. They

found the dead body of the deceased at the house of the

accused. PW.9 is a tenant of the accused in the first floor

of their house. He has stated that one day prior to the

death of deceased, he found the deceased quarrelling with

the accused with a demand for payment of money. On the

next day, the dead body of the deceased was found hanging

to the roof of house of accused.

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13. Thus, on a careful appreciation of the oral evidence of

PWs.1 to 6, 8 and 9, there is no direct evidence. PW.1 is

the wife and PW.2 is the daughter, there are material

contradictions in their evidence which goes to the root of

the prosecution case. PWs.3 and 4 have only spoken

through about the deceased arranging loan to the accused

and their failure to repay the said amount. PWs.5, 6 and 8

have simply supported the version of PWs.3 and 4 as to the

accused borrowing Rs.2 lakhs through the deceased and

their failure to repay the said amount, in spite of the

repeated demands. PW.7 is a panch witness for the scene

of offence panchnama-Ex.P.2, rough sketch of scene of

offence-Ex.P.3, inquest panchnama-Ex.P.4 and also for

seizure of MO.1-rope. His evidence remained consistent

throughout the cross-examination.

14. It is pertinent to mention that the prosecution case is

totally depending on the circumstantial evidence and there

is no direct eye witness to the occurrence of the incident.

According to PWs.1 & 2, the deceased went to the house of

accused in the evening of 01.10.2008 with demand for

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repayment of the amount and remained at their house

itself and that the accused came to the house of PW.1, at

about 10:00 p.m. questioned her as to why she sent the

deceased to their house and that they left the house of

PW.1 at about 1:00 a.m. on 02.10.2008. Thereafter, at

about 6:00 a.m. on 02.10.2008 PWs.1 & 2 came to know

about the death of deceased and found his dead body

hanging to the railing near the stair case of the house of

accused.

15. From the above discussion, it is crystal clear that

PWs.1 & 2 and other witnesses have consistently stated

that the dead body of deceased was found hanging to the

railing at the stair case outside the house of accused.

PW.7 is a panch witness for scene of offence and rough

sketch wherein it is clearly a delineated that stair case is

from the outside of the house of accused and the dead

body of deceased was found hanging to the railing hook of

the house of accused. The police have conducted scene of

offence panchanama as in Ex.P.2, rough sketch as in

Ex.P.3 and inquest as in Ex.P.4. In Ex.P.2, panch

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witnesses have opined that the deceased might have

hanged to death by committing suicide and the police have

also seized the rope-MO.1. In the inquest panchanma

column Nos.X, XI and XV, it is clearly mentioned that as

the accused failed to repay the said amount and quarrelled

with the deceased and harassed him, having vexed with the

life the deceased committed suicide by hanging.

16. Thus, the prosecution only relied upon

circumstantial evidence and also on the principle of 'last

seen theory'. As per Exs.D.2 to D.4 and also as per Ex.P.2

and P.4 initially PWs.1 & 2 and the panch witness for

inquest and scene of offence have opined that the death of

deceased is suicide by hanging and it is not a homicide. It

is only on receipt of Ex.P.7-post-mortem examination

report, the section of law is altered under Ex.P.6 from 306

of IPC to 302 of IPC.

17. The learned counsel for the appellants vehemently

contends that homicide by hanging is a rare phenomenon.

Usually in such a case, hyoid bone would be found broken

and in the present case, hyoid bone is intact, there are no

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such injury marks on vital parts of the body of the

deceased, hence it is not a case of strangulation and that

the scene of offence is accessible to everybody and unless

the prosecution has discharged the initial burden, the

principle of 'last seen theory' cannot be applied and the

principle laid under Section 106 of the Indian Evidence

Act, 1872 (for short 'Evidence Act') also cannot be pressed

into service and that any amount of suspicion as

mentioned in Ex.D.1 in the report-Ex.P.1 cannot take place

of proof and the prosecution has failed to establish the

guilt of accused for the said offence punishable under

Section 302 of IPC and that the accuse are entitled for

benefit of doubt.

18 i). In Gargi's case (1st supra), the Apex Court while

dealing with medical jurisprudence to ascertain whether

asphyxia/throttling/strangulation/hanging is cause of

death and such death is suicidal or homicidal laid down

certain principles and also held that there is no absolute

rule in medical jurisprudence that in all cases of

strangulation, hyoid bone would invariably be fractured.

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Further held that it would be unsafe to rely upon

circumstantial evidence unless such circumstances form a

complete chain ruling out any other hypothesis except the

guilt of the accused. Insofar as 'last seen theory' is

concerned, it is held that the approach of the Court below

relying on the assumption under Section 106 of Evidence

Act is not free from error and such theory cannot be

operated against the accused merely because she was the

wife of deceased and was living with him and held that the

gap between point of time when the accused and deceased

were last seen together and when the deceased was found

dead had not been that small and that the possibility of

any other person being the author of crime rendered totally

improbable.

ii). In Reena Hazarika's case (2nd supra), the

Hon'ble Supreme Court of India dealt with the

circumstantial evidence whereunder the principles laid

under Section 106 of Evidence Act with reference to burden

of proving fact "especially within knowledge of accused"

has to be invoked and held that mere invocation of last

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seen theory without facts and evidence would not shift

onus upon accused under Section 106 of Evidence Act

unless prosecution first establishes prima facie case.

iii). In Raj Kumar Singh's case (3rd supra), the Apex

Court has reiterated the well settled principle that

suspicion, however grave, it may be, cannot take the place

of proof.

iv). In State of Punjab's case (4th supra) the Apex

Court dealt with the contradiction between ocular and

medical evidence as to the number of injuries on the

deceased and held that when the presence of the eye

witness is doubtful, the accused is entitled for acquittal.

19. PW.11 is the Doctor who conducted autopsy over the

dead body of deceased and Ex.P.7 is the post-mortem

report. Though he was cross-examined at length, he has

stated that according to his observation, the death of

deceased occurred about 12 to 18 hours prior to post-

mortem examination and he has referred the death of

deceased as homicidal hanging due to hanging related

injuries and struggle. Further explained that according to

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him, hanging is a death due to self-homicidal inflicted by

some other persons. But in the chief examination he has

stated about the abrasions, scratch and ligature marks

around the chin and neck. Nowhere he has specified how

he arrived at a conclusion that the death of the deceased is

homicide by hanging.

20. In Modi's Medical Jurisprudence and Toxicology, 23rd

Edn., Page 572, it is observed as follows:

"Homicidal hanging, though rare, has been recorded. Usually, more than one person is involved in the act, unless the victim is a child or very weak and feeble, or is rendered unconscious by some intoxicating or narcotic drug. In a case, where resistance has been offered, marks of violence on the body and marks of a struggle or footprints of several persons at or near the place of the occurrence are likely to be found."

21. Be it stated that none of the well-known signs

referred to by the learned author are present in this case.

The post-mortem report-Ex.P.7 is not a substantive piece of

evidence. But the evidence of Doctor-PW.11 who conducted

post-mortem examination can by no means be ascribed

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insignificant. As per the oral evidence, PWs.1 and 2 who

are wife and daughter of the deceased and the panch

witness for inquest and as per the post-mortem

examination and also as per the oral evidence of PW.11-

Doctor who conducted autopsy, there are no such external

anti-mortem injuries on any other vital part of the body

except on chin and neck portion which are abrasions,

multiple scratch abrasions, ligature marks on the right and

left side of chin and around the neck. PW.11 has stated

that scratch abrasions are caused by sharp pointed objects

before the ligature marks i.e., before hanging. The

investigation on this aspect is silent. No such sharp

pointed object was seized by the Investigating Officers

either from the possession of the accused or at their

instance. Hyoid bone, thyroid and cricoid cartilages are

intact with contusion of surroundings soft tissues.

22. As per the medical jurisprudence, it is very much

challenging to differentiate between suicidal, accidental

and homicidal hanging cases. Majority of the hanging

cases are only with the suicidal background. In homicidal

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hanging cases, a thorough scene of offence panchnama

and autopsy are essential. Further, whenever such a

homicidal hanging is opined by the Doctor, subsequent

investigation after autopsy is also required. But in the

present case, the Doctor has opined that scratch marks

must have been caused before the death with a sharp

pointed object, no such weapon is seized, the scene of

offence panchnama is also silent as to any blood stains on

the earth or on the cloth of deceased, no evidence of any

marks of violence on the body or marks of struggle or foot

prints, of several persons at the scene of offence neither

found nor noticed. Therefore, the question whether the

appellants/ accused murdered the deceased cannot be

answered definitely, as a result the benefit of doubt that

has arisen must go the appellants/accused.

23. However, the unbroken chain of circumstances such

as the deceased arranging a hand loan of Rs.2 lakhs to the

accused, demanding for repayment, failure of the accused

to repay the same, deceased approaching the accused on

01.10.2008, with such a demand for repayment, the

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accused coming to the house of PW.1, questioning her as

to why she sent the deceased to their house, and the

accused remaining at the house of PWs.1 & 2 till 01:00

a.m. in the night on 02.10.2008, the deceased not

returning back to the house during that night and PWs.1

and 2 receiving information by 06:00 a.m. on 02.10.2008

about the dead body of the deceased hanging to the railing

of the house of accused, PW.1 prompt lodging of FIR before

the police suspecting the accused are establishing a

complete chain with implicating circumstances against the

accused. As stated above, all the accused while answering

to the questions 4, 5, 6, 8 and 9 put to them under Section

313 Cr.P.C. have also admitted that the dead body of the

deceased was found at their house, panchanama was

conducted, MO.1-rope used for hanging the dead body was

seized. All these incriminating circumstances, coupled

with strained relations between the parties would

clinchingly establish the conduct and behaviour of accused

in abetting the deceased to commit suicide though it is not

sufficient to establish the essentials for the offence

punishable under Section 302 IPC.

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24. Thus, the evidence on record would establish that the

accused have abetted the deceased by their acts and

conduct creating such circumstances that the deceased

was left with no other option except to commit suicide. The

prosecution with the clinching oral evidence of PWs.1 & 2

supported by the evidence of PWs.3 to 6, PW.8, PW.9 and

PW.7 contents of Exs.P.2 and P.4 able to establish the

conduct of the accused pushing him and forcing him to

take the extreme step of committing suicide.

25. In such factual situation of the case, as indicated

above, in view of the legally acceptable evidence available

on record and in the background of principles laid by the

Apex Court in the decision relied upon by the appellants

and in view of material contradictions as in Exs.D.1 to D.4

and the opinion of panch witnesses for scene of offence

panchnama and inquest panchnama under Exs.P.2 and

P.4, and absence of any blood stains on the earth, on the

cloths of the deceased or marks of struggle or foot prints of

several persons at the scene of offence, absence of seizure

of any such sharp edged object etc, we hold that this is

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only a case of abetment to commit suicide and not a case

of culpable homicide by hanging amounting to murder.

Consequently, to meet the ends of justice, the punishment

deserves to be altered from the offence punishable under

Section 302 of IPC to 306 of IPC. Both sides conceded that

the appellants/accused Nos.2 to 4 are in jail from the date

of judgment dated 29.10.2013 in SC No.217 of 2012.

26. In the result, the Criminal Appeal is partly allowed.

The conviction of the appellants/accused 2 to 4 is altered

from the offence punishable under Section 302 of IPC to

the offence punishable under Section 306 of IPC and the

sentence of life imprisonment is altered and modified to

one for the period already undergone, since they are in jail

from 29.10.2013 onwards i.e., from the date of judgment in

SC No.217 of 2012 and to pay a fine of Rs.1,000/- (Rupees

One Thousand only) each, in default to suffer simple

imprisonment for two months.

27. The Criminal Appeal is disposed of accordingly and

the appellants/Accused Nos.2 to 4 shall be set at liberty

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forthwith, if they have already paid the fine amount, as

indicated above.

__________________________________ A. VENKATESHWARA REDDY, J.

_____________________________________ G. ANUPAMA CHAKRAVARTHY, J.

Date: 26.08.2022 Isn