Konyala Kistaiah, Medak Dist. vs State Of A.P., Rep. By P.P., Hyd
2022 Latest Caselaw 4320 Tel

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

              CRIMINAL APPEAL No.1185 of 2013

JUDGMENT : (Per G.Anupama Chakravarthy, J)

        This appeal is arising out of the judgment dated 13.11.2013

in S.C.No.264 of 2012 on the file of VIII Additional District and

Sessions Judge, Medak, FAC, III Additional District Judge (FTC),

Medak.


2.      The appellant is accused No.1.    A charge sheet is filed

against A-1 to A-3 for the offences punishable under Sections

304-B, 302 r/w.Sec.34, 201 of IPC and under Sections 3 and 4 of

the Dowry Prohibition Act. The trial Court, after considering the

evidence on record, acquitted A-2 and A-3 of all the above said

offences and also acquitted A-1 of the offences under Sections

304-B of IPC and Sections 3 and 4 of the Dowry Prohibition Act,

but convicted him for the offences punishable under Sections 302

and 201 of IPC and sentenced him to undergo imprisonment for

life and to pay a fine of Rs.5,000/- for the offence under Section

302 of IPC, and further sentenced the appellant to undergo
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imprisonment for three years and also to pay a fine of Rs.5,000/-

for the offence punishable under Section 201 of IPC and both the

sentences were ordered to run consecutively.



3.    The brief case of the prosecution is that Aruna @ Pavani

(hereinafter referred to as 'the deceased') got married with A-1 on

20.03.2011 and at the time of marriage, the parents of the deceased

gave Rs.1,50,000/- cash, gold pustelathadu weighing 2½ tulas, gold

kammalu with buttalu weighing 1½ tula, gold vanku (ring) 1 tula,

silver leg kadas 40 tulas, silver chains 6 tulas and other household

articles as per the demand of the accused. After marriage, the

deceased went to her matrimonial house. On 24/25.03.2011, the

deceased went to her parents' house to attend a Jatara. It is the

further case of the prosecution that A-1 demanded Rs.30,000/- for

purchase of a motorcycle and the said amount was also paid by the

parents of the deceased. After returning to the house of accused,

A-1 to A-3 further harassed the deceased mentally and physically

and also suspected her character. On 15.04.2011 at 2.00 p.m., A-1

picked-up a quarrel with the deceased in his hut, slapped her and
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the deceased went out to the adjacent hut of Gundaiah, but A-1

followed and beat the deceased, committed murder by throttling

her neck, and to screen away the evidence, he poured kerosene and

set fire to the dead body of the deceased and left the scene of

offence. As a result, flames caught to the hut of Gundaiah and they

also spread to the neighbouring huts of Pochaiah, Nathi Laxman,

Nathi Mahipal, Nathi Bhumaiah.


4.    Basing on the report of PW-13/village Sarpanch, a fire

engine was sent and a case was registered under Section 174 of

Cr.P.C., vide Crime No.35 of 2011 on the file of Pulkal Police

Station. Pursuant to the FIR, a requisition was made by the Police

to the Executive Magistrate to conduct inquest over the dead body

of the deceased. During the course of inquest, the father of the

deceased i.e. PW-1 gave a petition to the Inspector of Police and

based on it, the Section of Law was altered from 174 Cr.P.C. to

Sections 302, 304-B and 498-A of IPC. Later, the dead body of the

deceased was sent for postmortem examination to the Government

hospital, Jogipet and PW-16/Doctor conducted autopsy over the

dead body and issued Ex.P-11/postmortem report, opining the
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cause of death as asphyxia due to strangulation and hemorrhagic

shock due to penetrating injuries to vital organs. After completion

of investigation, the Sub-Divisional Police Officer, Medak, filed

charge sheet against A-1 to A-3 for the offences punishable under

Sections 304-B, 302 r/w.Sec.34, 201 of IPC and under Sections 3

and 4 of the Dowry Prohibition Act.


5.    During the course of trial, charges are framed against A-1 to

A-3 for the offences under Sections 304-B, 302 r/w. 34 and 201 of

IPC and also for the offences punishable under Sections 3 and 4 of

the Dowry Prohibition Act and the same were denied by all the

accused and claimed to be tried. On behalf of the prosecution,

PWs.1 to 21 were examined and Exs.P-1 to P-14 were marked. All

the accused are examined under Section 313 Cr.P.C. and they

denied the incriminating evidence of the prosecution and pleaded

not guilty of the offences charged against them.


6.    The trial Court acquitted A-2 and A-3 of all the charges

levelled against them and A-1 alone was convicted for the offences
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punishable under Sections 302 and 201 of IPC and was acquitted of

the rest of the offences as aforesaid.


7.    It is contended by the learned counsel for the appellant that

the case is based only on the circumstantial evidence and the

prosecution has failed to prove the complete chain of

circumstances connecting the events so as to convict the appellant,

therefore, the conviction is bad in the eye of law and accordingly

prayed to set aside the judgment of the trial Court, as the

prosecution has miserably failed to prove the guilt of the appellant

beyond reasonable doubt.


8.    On the other hand, the learned Public Prosecutor contended

that as per the last seen theory, the deceased was found alive along

with the appellant when he was beating her in the open place and

later her dead body was found in the burnt huts and the accused

No.1/appellant has failed to explain as to how the deceased died,

and therefore, prayed to confirm the judgment of the trial Court by

dismissing the appeal.

9.    Perused the record.
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10.   The point for determination in this case is;

      Whether the trial Court is proper in convicting A-1 for the
      offences punishable under Sections 302 and 201 of IPC and
      whether the prosecution is able to prove the guilt of the
      appellant beyond all reasonable doubt for the said offences ?

11.   The criminal law was set into motion basing on the

information given by PW-13/B.Srinivas Reddy, who was the

Sarpanch of Chowtakur village.       The report given by him is

Ex.P-8. His evidence disclose that on 15.04.2011, while he was in

his fields, one Ramchandra Reddy telephoned him stating that the

huts in the village were burning. On that, he rushed to the huts and

saw one dead body and identified her as that of the deceased

"Pavani". His evidence further disclose that he informed the fire

department and in turn, the fire engines have come to the spot to

put off the flames. It is specifically deposed by him that the dead

body of Pavani was found in the hut of one Pochaiah in their

kitchen and by the time he reached, all the huts were burnt.


12.   It is relevant to mention the relationship between the

witnesses and the deceased for better appreciation of the facts.
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PWs.1 and 4 are the parents of the deceased, PWs.2 and 3 are the

uncle and aunt by courtesy to the deceased, PW-5 is the brother of

the deceased, PWs.6, 7, 8, 10 and 11 are the persons whose huts

were burnt in the said incident. PWs.9 and 12 are the neighbouring

residents of the accused, PW-14 is the panch witness to the scene

of offence, PW-15 is the inquest panchayatdar, PW-16 is the

Doctor who conducted postmortem examination over the dead

body of the deceased and opined that the cause of death of the

deceased was due to strangulation and asphyxia and all the injuries

found over the dead body of the deceased are ante-mortem injuries.

PW-17 is the inquest panchayatdar who conducted inquest over the

dead body of the deceased at the scene of offence and the inquest

panchayatdars opined that the deceased Smt.Konyala Aruna @

Pavani got married with Kistaiah S/o.Pentaiah on 20.03.2011

as per Hindu customs and at the time of marriage, the father of the

deceased gave net cash of Rs.1,50,000/-, 4 tulas of gold, 20 tulas of

Silver articles and an amount of Rs.4,00,000/- towards marriage

expenses and household articles, and that, 25 days after her

marriage, the deceased was mentally tortured, ill-treated by her
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husband and in-laws of the family and that on 15.04.2011 at 4.30

p.m., all the accused conspired, throttled the deceased and thrown

the dead body in the hut of Gundaiah and set fire to the huts to

conceal the evidence. PWs.18 to 21 are the Police officials who

registered the crime at the first instance under Section 174 of

Cr.P.C. and later altered to Sections 304-B, 302, 498-A and 201 of

IPC and Sections 3 and 4 of the Dowry Prohibition Act and after

completion of investigation, filed charge sheet against A-1 to A-3.


13.   On perusal of the entire evidence on record, there is no iota

of evidence on record to prove that the appellant has screened away

the evidence and therefore, it can be construed that the trial Court

has erred in convicting the appellant for the offence punishable

under Section 201 of IPC, which is liable to be set aside.


14.   There is no direct eye witness in this case and the case of the

prosecution is based on the circumstantial evidence. Admittedly,

PWs.1, 4 and 5 are not residing at the house of the deceased.

Ex.P-8 is the report given by PW-1 subsequent to the report given

by PW-13. Basing on Ex.P-8, the Sections of Law were altered,
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vide Ex.P-13/alteration memo. Their evidence only supports the

case of the prosecution as to the manner of marriage, dowry and of

suspicion over the appellant for the death of the deceased.


15.   PWs.2 and 3, who are the uncle and aunt (distantly related)

of the deceased, are residing in the same village, but their house is

at a distance of one kilometer away from the house of the deceased.

Their evidence disclose about the marriage between the deceased

and the appellant, dowry paid by the parents of the deceased and

demand made by the appellant for additional dowry.                 Their

evidence further reveal that earlier to the date of offence, the

deceased went to public telephone booth to call her parents and on

coming to know the same, the appellant forcibly dragged her to his

house and 7 or 8 days of the incident, the deceased died due to burn

injuries. PWs.3 and 4 also suspected that the appellant might have

caused the death of the deceased. On perusal of their evidence, it is

evident that no omissions or contradictions have been pointed out

by the defence, from their 161 Cr.P.C. statements.
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16.   PWs.6 to 11 turned hostile and Exs.P-2 to P-7 are their 161

Cr.P.C. statements. It is important to note that the 161 Cr.P.C.

statements can only be used for corroboration and contradictions

and it is a weak piece of evidence.


17.   The evidence of PW-12, who is the Fire Officer, disclose

that on 15.04.2011, they received information about burning of

huts in Chowkathur village at 5 p.m. and on that, they went to the

spot, extinguished fire and found one dead body in the house of

one Gundaiah.


18.   The evidence of PW-13 is quite contrary to the evidence of

PW-12 as to the place where the dead body was found. The village

Sarpanch i.e. PW-13 deposes that the dead body of the deceased

was found in the hut of Pochaiah, whereas, PW-12 states that it

was found in the house of Gundaiah. As per Ex.P-14/the crime

report and Ex.P-10/inquest panchanama, the dead body of the

deceased was shown and found in the house of Gundaiah. The oral

evidence of PW.17/Tahsildar disclose that he conducted inquest

over the dead body of the deceased in the house of Gundaiah. It is
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also relevant to mention that Gundaiah is the blood relative/brother

of the appellant. PWs.14 and 15 are the inquest panchayatdars and

also panchayatdars for the rough sketch/Ex.P-9, which was

prepared by the Police and their evidence corroborate the evidence

of PW-17 and Exs.P-9 and 10.


19.   Admittedly, the death of the deceased is not a natural death

and even as per the evidence of the Doctor i.e. PW-16, the

deceased died of Asphyxia due to strangulation and hemorrhagic

shock due to penetrating injuries on vital organs leading to death.

The evidence of PW-16 further disclose that the dead body of the

deceased has three external injuries over the body corresponding

with 4 internal injuries and they are;

      "External injuries:
      1.

Burn injuries all over the body. Hyperaemia not present over the edge of the burn injuries.

2. Penetrating injury over the right side of chest near parasternal are between 4th and 5th ribs extending upto base of the heart about ½ x ¼ x 1".

3. Penetrating injury over the right side of the chest on the lateral aspect between 6th and 7th ribs extending upto the liver about ½ x ¼ x 3/4th inches.

Internal injuries:

1. Penetrating injury on the right lung.

2. Penetrating injury on the base of the heart.

3. Penetrating injury on the liver.

4. Lacerated injury on right side of kidney."

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20. It is specifically deposed by PW-16 that all the injuries

found over the dead body of the deceased are ante-mortem in

nature and the approximate time of death is 16 to 20 hours prior to

his conducting of postmortem examination i.e. before 12.30 p.m.

on 16.04.2011 and Ex.P-11 is the postmortem report.

21. It is important to note that external injuries mentioned in

Ex.P-9 are corresponding with the injuries mentioned in Ex.P-11

and the evidence of PW-16 is crucial to prove that the death of the

deceased is a homicide and not a suicide, as the external injuries on

the dead body of the deceased prove that the deceased was inflicted

with injuries which are ante-mortem in nature. As per medical

jurisprudence, hemorrhages in strap muscles which are ante-

mortem injuries, prove that the cause of death was asphyxia due to

homicidal strangulation. It is the specific contention of the learned

counsel for the appellant that the deceased might have died due to

fire accident in a kitchen, but the said contention cannot be

accepted in view of the above said discussion.

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22. Furthermore, it has to be borne in mind that the death of the

deceased did not occur in the house of the accused to prove the

theory that a fire accident might have occurred while she was

cooking in the kitchen of her own house. On perusal of the 313

Cr.P.C. examination of the appellant, no plea was taken by him

either pleading ignorance or alibi as to his absence at the time of

the incident. The incident took place in the day light i.e. at about

2.00 p.m. on 15.04.2011. It is the case of the prosecution that the

appellant throttled the neck of the deceased, due to which, she died

of asphyxia and strangulation, later they burnt the huts keeping the

dead body of the deceased in the hut of Gundaiah, and due to the

rise of flames, the huts of PWs.6 to 11 were also got burnt.

23. As stated supra, PWs.18 to 21 are the Police officials who

registered the case initially under Section 174 of Cr.P.C. basing on

the report of PW-13 i.e. Ex.P-1, vide Crime No.35 of 2015 on the

file of Chowkatur Police Station and Ex.P-12 is the FIR. Later,

basing on the report of PW-1 i.e. Ex.P-8, the Section of law was

altered vide Ex.P-13/alteration memo. PW-21 who registered the

FIR, has clearly deposed that he prepared the scene observation

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report i.e. Ex.P-9 and the rough sketch/Ex.P-14 in the presence of

panchayatdars and also gave requisition to PW-17/Tahsildar to

conduct inquest over the dead body of the deceased. His evidence

further disclose that basing on the report of PW-1, he made an

endorsement about the alteration of charges for the offences under

Sections 302, 304-B and 498-A of IPC.

24. The evidence of PW-19 disclose that he was present at the

time of inquest and as it is a case of dowry death as per Ex.P-8, the

case was handed over to Sub-Divisional Police Officer for

investigation. PW-18 is the Sub-Divisional Police Officer who

conducted the entire investigation and later charge sheet was filed

by his successor i.e. PW-20.

25. The oral evidence of PWs.1 to 21 coupled with Exs.P-1 to

P-14 on record show that the prosecution has proved the guilt of

the appellant beyond reasonable doubt. Though it is a case of

circumstantial evidence, the deceased and appellant were last seen

together before the death of the deceased and the appellant has

failed to offer proper explanation as to how the injuries are caused

AVR, J & GAC, J Crl.A.No.1185 of 2013

on the deceased prior to her death and as to how the dead body of

the deceased was found in the hut of Gundaiah. No general

defences have been taken by the appellant to establish his

innocence.

26. In the judgment of Apex Court in Jayantilal Verma v. State

of M.P.1, their Lordships have held

"The most important aspect is where the death was caused and the body found. It was in the precincts of the house of the appellant herein where there were only family members staying.

.....We are confronted with a factual situation where the appellant herein, as a husband is alleged to have caused the death of his wife by strangulation. The fact that the family members were in the home some time before, is also quite obvious. No explanation has been given as to how the wife could have received the injuries. This is a strong circumstance indicating that he is responsible for commission of the crime. The appellant herein was under an obligation to give a plausible explanation regarding the cause of the death in the statement recorded under Section 313 of the Cr.P.C. and mere denial could not be the answer in such a situation."

27. In State of U.P. v. Dr.Ravindra Prakash Mittal2, the Apex

Court held as under :

MANU/SC/0875/2020

(1992) 3 SCC 300

AVR, J & GAC, J Crl.A.No.1185 of 2013

"The essential ingredients to prove guilt of an accused person by circumstantial evidence are: (1) The circumstances from which the conclusion is drawn should be fully proved; (2) the circumstances should be conclusive in nature; (3) all the facts so established should be consistent only with the hypothesis of guilt and inconsistent with innocence; (4) the circumstances should, to a moral certainty, exclude the possibility of guilt of any person other than the accused.

.....As pointed out supra, there is no direct evidence to connect the respondent with this offence of murder and the prosecution entirely rests its case only on circumstantial evidence. There is a series of decisions of this Court so eloquently and ardently propounding the cardinal principle to be followed in cases in which the evidence is purely of circumstantial nature. We think, it is not necessary to recapitulate all those decisions except stating that the essential ingredients to prove guilt of an accused person by circumstantial evidence are:

(1)          The circumstances from which the
             conclusion is drawn should be fully
             proved;
(2)          the circumstances should be conclusive
             in nature;
(3)          all the facts so established should be

consistent only with the huypothesis of guilt and inconsistent with innocence; (4) the circumstances should, to a moral certainty, exclude the possibility of guilt of any person other than the accused.

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28. In Trimukh Maroti Kirkan v. State of Maharashtra3, the

Hon'ble Supreme Court held as under:

"Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime."

29. While dealing with the above case, their Lordships have also

dealt with case laws in Nika Ram v. State of Himachal Pradesh4,

in Ganeshlal v. State of Maharashtra5, in State of U.P. v.

Dr.Ravindra Prakash Mittal (2nd supra) and in the case of State

of Tamil Nadu v. Rajendran6 and held that the medical evidence

showed that the wife died due to asphyxia as a result of

strangulation and not on account of burn injuries, and came to a

conclusion that no explanation was offered by the accused in his

examination under Section 313 Cr.P.C. as to the receiving of

2007 Crl.L.J. 20

AIR 1972 SC 2077

(1992) 3 SCC 106

(1999) 8 SCC 679

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injuries found over the dead body and that the circumstances

enumerated unerringly point out the guilt of the accused.

30. In the present case, the circumstances which are established,

are closely linked with each other, as follows:

1. The deceased got married with the appellant on

20.03.2011 and died on 15.04.2011 due to asphyxia as a

result of strangulation.

2. The evidence of PWs.1 to 5 clearly reveal the demand of

additional dowry made by the appellant by way of

purchasing a motorcycle.

3. The evidence of PWs.2 and 3 clearly disclose that the

deceased was beaten and forcibly dragged by the

appellant to his house when she attempted to call her

parents and the said incident took place 6 or 7 days prior

to the present incident, which proves the motive for the

occurrence.

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4. The dead body of the deceased was found in the house of

the brother of the appellant with external injuries

including burn injuries corresponding to internal injuries

which clearly reveal that the death of the deceased is not

a natural one/accidental or suicidal but it is a homicide.

5. There is no explanation from the appellant as to how the

huts were burnt or as to how the deceased's dead body

was found in the house of Gundaiah i.e. the appellant's

brother.

6. The positive opinion of panchayatdars of the inquest

panchanama i.e. Ex.P-10 as to the cause of death of the

deceased incorporated at Column No.15 also corroborates

the evidence of PW-16/the Doctor, who conducted

postmortem examination on the dead body of the

deceased and stated that the death of the deceased was

due to asphyxia as a result of strangulation with

hemorrhagic shock due to penetrating injuries and the

said injuries are ante-mortem in nature.

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31. Basing on the above circumstances, it can be construed that

the appellant had harassed the deceased and on the fateful day, she

was murdered by the appellant and later the dead body was burnt in

the hut of the brother of the appellant, due to which, the other huts

were also burnt. Therefore, the trial Court is justified in convicting

the appellant for the offence punishable under Section 302 of IPC.

32. As stated supra, there is no evidence on record to prove that

the dead body of the deceased was thrown into flames to screen

away the evidence or in order to screen away the evidence, the huts

were set to fire. In the absence of such evidence on record,

conviction of the appellant for the offence punishable under

Section 201 of IPC cannot be sustained.

33. Accordingly, the appeal is allowed in part, setting aside the

judgment of the trial Court insofar as conviction and sentence

imposed against the appellant for the offence under Section 201 of

IPC. The conviction and sentence imposed by the trial Court

against the appellant for the offence under Section 302 of IPC is

hereby confirmed.

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Pending miscellaneous applications, if any, shall stand

closed.

_______________________________ A. VENKATESHWARA REDDY, J

________________________________ G.ANUPAMA CHAKRAVARTHY, J Date: 26.08.2022 ajr