Bandari Bucchaiah, Baskar vs The State Of Ap., Rep Byits Pp
2023 Latest Caselaw 2658 Tel

                  THE HON'BLE SRI JUSTICE K.LAKSHMAN
                                  AND
                   THE HON'BLE SMT. JUSTICE K.SUJANA

                      CRIMINAL APPEAL No.1106 OF 2013


JUDGMENT: (PER HON'BLE SMT JUSTICE K.SUJANA)


      This appeal is preferred by the appellant being aggrieved by the

judgment dated 01.10.2013 passed by the learned Additional District and

Sessions Judge, Vikarabad, in S.C.No.278 of 2009 wherein, the appellant

was convicted for offence punishable under Section            302 IPC. He was

sentenced to undergo Life Imprisonment and to pay a fine of Rs.10,000/-,

in default of which to undergo Simple Imprisonment for a period of six

months.


2.    The facts of the case are that one Edula Mogulaiah lodged

complaint to the Sub Inspector of Police, Mohammadabad Police Station,

stating    that       on   27.02.2009   he     performed     marriage   of   his

daughter          -        Chenamma          @      Chitti       with        one

B.Buchaiah - appellant/accused. His daughter was working as Nurse

with one Dr.Rajender at Mohammadabad Village, and she used to return

home late, as such, accused suspected her fidelity and used to harass her

physically and mentally. Due to the unbearable harassment of accused,

his daughter committed suicide. On the basis of the said complaint, the

statement of E.Mogulaiah, was recorded and Cr.No.92 of 2009 was

registered under Sections 498-A and 306 IPC. The Police took up the

investigation and the concerned Tahsildar conducted the scene of offence
                                                                 KL, J & SKS, J
                                                         Crl.A.No.1106 of 2013

                                        2


panchnama and also the inquest panchanama as the death of the

deceased occurred within seven years of the marriage. The statements of

PWs.2 to 6 were recorded and in the presence of panchas, the scene of

offence panchanama-cum-seizure was conducted, photographs were

taken and the dead body was sent for postmortem examination. Later, the

statement of PW.7 was recorded. On 27.11.2009 the accused was

apprehended and he admitted his guilt, thereby, he was sent for judicial

remand. Later, the group of Doctors issued the postmortem report stating

that the death was due to hanging, as such, a charge sheet under

Sections 498-A and 306 IPC was filed.


3.    On the basis of the said charge sheet, the matter was committed to

the Assistant Sessions Court, Vikarabad. After the examination of PW.1,

he found that the death was due to beating of accused, as such, he

reported the same to Sessions Court and the matter was taken over by

the   learned   Principal   District   Judge,   Vikarabad.   The   prosecution

examined PWs.1 to 12 and marked Exs.P1 to P9 and MOs.1 & 2. After

going through the evidence on record and on hearing both sides, the

appellant/accused was convicted for the offence under Section 302 IPC

vide judgment dated 01.10.2013. Against the said judgment, this appeal

is preferred.


4.    This appeal is filed stating that the trial Court erred in convicting

the appellant/accused by placing heavy reliance on the evidence of highly
                                                              KL, J & SKS, J
                                                      Crl.A.No.1106 of 2013

                                    3


interested testimony of PWs.1 to 12 and the fact that the deceased

committed suicide on 23.11.2009 and only a suspicion was raised, were

not considered. Further, the trial Court failed to note that the appellant

and deceased were husband and wife and the deceased was working as a

Nurse and the appellant used to suspect her fidelity and used to harass

her physically and mentally, as such, due to the unbearable harassment

of appellant, the deceased committed suicide and the same was an

admitted fact in the evidence of PW.1 and the complaint lodged by him.

Furthermore, the prosecution failed to prove its case, as there were no eye

witnesses to the incident. Moreover, PW.7 - Dr.K.Rajendra deposed that

the deceased was working with him as a Nurse and her working hours

were between     10:00 AM to 05:00 PM and the allegation of the

complainant that the deceased used to return at late hours was totally

false. The prosecution also failed to prove any kind of harassment by the

appellant/accused, and without there being any evidence, the trial Court

wrongly convicted the appellant/accused.


5.    Heard Sri P.Prabhakar Reddy, learned counsel for appellant, and

Sri T.V.Ramana Rao, learned Additional Public Prosecutor for respondent.

6. Learned counsel for the appellant/accused, submitted that there is

no evidence on record to prove the offence of the appellant under Section

302 IPC as the complainant himself in his evidence has stated that his

daughter committed suicide. He further submitted that the offence does KL, J & SKS, J Crl.A.No.1106 of 2013

not fall under the ingredients of Section 302 IPC though the prosecution

failed to prove the offence the trial Court convicted the appellant without

there being any evidence. As such, prayed this Court to allow the appeal

by setting aside the judgment of the trial Court dated 01.10.2013 and to

acquit the appellant.

7. On the other hand, the learned Additional Public Prosecutor,

submitted that the evidence on record was sufficient to prove the guilt of

the accused, there are no infirmities in the judgment and the trial Court

has rightly convicted the accused. As such, prayed this Court to dismiss

the appeal.

8. To prove its case, the prosecution examined PW.1 to PW.12 and

marked Exs.P1 to P9 and M.Os.1 and 2.

 PW.1 is the father of the deceased. He deposed that his daughter

was working as Nurse in the hospital of one Dr.Rajender at

Mohommadabad. The accused used to beat, abuse and quarrel with

his daughter for returning home late after discharging her duties.

On the date of incident he was informed that his daughter died. As

such, he went to the house of his daughter where he found his

daughter lying on the ground and there were injuries and scratches

on the body. Hence, he suspected that accused might have killed

his daughter.

KL, J & SKS, J Crl.A.No.1106 of 2013

 PW.2 is the mother of the deceased. She also deposed on the similar

lines as that of PW.1.

 PW.3 is the owner of the house rented by the accused and the

deceased. He deposed that he does not know how the deceased died

but the accused called him to his house, as such, he saw the dead

body of the deceased.

 PW.4 deposed that he knows PWs.1 to 3 and the deceased as she

was his sister-in-law. He stated that the accused and deceased lived

happily for about 2 months after their marriage but later the

accused quarreled with the deceased suspecting her character as

she used to return later from her duty. He also deposed that

deceased was pacified on many occasions and was advised to lead

matrimonial life with the accused and sent back but she contended

that she would commit suicide by hanging herself after quarreling

with the accused. On information of death of his sister-in-law, he

went to the house of accused and saw dead body of the deceased.

 PW.5 is the wife of PW.3. She has not supported the prosecution

except deposing that the accused and deceased were living in her

house as tenants.

 PW.6 is the photographer.

 PW.7 deposed that he is a Medical Officer and he knows the

deceased as she was working as Nurse in a hospital and he also

knew the husband of the deceased. He stated that the duty hours of KL, J & SKS, J Crl.A.No.1106 of 2013

the deceased were from 10:00 AM to 05:00 PM and on the next date

of incident he came to know about the suicide committed by the

deceased.

 PW.8 is the panch for inquest panchanama.

 PW.9 is the panch for scene of offence panchanama.

 PW.10 is the Tahsildar who conducted inquest panchanama.

 PW.11 is the Medical Officer who conducted autopsy over the dead

body of the deceased. He deposed that he found three injuries on

the body of the deceased and opined that the death was due to

hanging.

 PW.12 is the Investigating Officer. He deposed that while he was

working as S.I., of Police, Mohammadabad, he received information

on phone on 23.11.2009 from the Sarpanch of Ganded Village, as

such, he proceeded to the said village and at the said place the

father of the deceased Chenamma @ Chitti namely Mogulaiah

(PW.1) lodged complaint. Hence, he recorded statement of

Mogulaiah and registered Cr.No.92 of 2009 under Sections 498-A

and 306 of IPC. He further deposed that he sent F.I.R., to the Court

and copies of the same to the concerned and then sent a requisition

to the Mandal Revenue Officer to hold inquest and then returned to

the scene of offence. Then he recorded the statements of PW.2 to

PW.6 and LW.3 held the scene of offence panchanama in the

presence of PW.9 and LW.11 and got the same photographed KL, J & SKS, J Crl.A.No.1106 of 2013

through PW.6. Later, he seized the saree of the deceased along with

the broken pieces of bangles, drew rough sketch, held inquest

panchanama through the M.R.O., in the presence of the panchas,

sent the body for post mortem examination and handed over the

same to PW.1. He also stated that he recorded the statement of

PW.7, collected the postmortem examination report, apprehended

the accused along with two constables and sent him for judicial

remand and later, deposited the property seized in the Court and

filed the charge sheet under Sections 498-A and 306 of IPC.

9. On going through the rival contentions and the evidence on record,

it is noticed that admittedly, the complaint was given stating that the

deceased committed suicide, whereas, during the time of trial in the

Assistant Sessions Court, at Vikarabad, PW.1 deposed that the accused

used to beat and abuse the deceased and due to such unbearable beating

the deceased died and a stick was found beside the body of the deceased.

Police came and observed the body of deceased and found injuries on the

back side of the body. Basing on the said evidence, the case was taken

over by the District and Sessions Judge, at Vikarabad, where PW.1

deposed that his daughter was dead and there were injuries on the body,

as such, he suspected that the accused might have killed his daughter.

KL, J & SKS, J Crl.A.No.1106 of 2013

10. Now, the points for determination are :

1. Whether the death of the deceased is homicidal ?

2. Whether the prosecution proved the guilt of the accused for the offence under Section 302 IPC beyond reasonable doubt?

3. Whether the judgment of trial Court needs interference?

POINT No.1

11. To prove that the death of the deceased was a homicidal death, the

prosecution relied on the evidence of PWs.1 and 2 and also the evidence

of the medical Officer - PW.11. The evidence of PW.1 - father of the

deceased, shows that the accused used to beat and abuse the deceased

suspecting her character whenever she came home late and he was

informed about the death of his daughter for which he suspected that the

accused killed his daughter. The evidence of PW.2 is on similar lines with

that of PW.1. PW.3 has not supported the case of the prosecution. PW.4

deposed that the deceased committed suicide by hanging herself after

quarreling with the accused. PW.5 has not supported the case of

prosecution, whereas, deposed that the deceased hanged herself. PW.11-

Medical Officer, deposed that he found three injuries over the dead body

of the deceased. Injury No.1 - ligature mark on the right side of the neck

admeasuring 26cm x 1.5 to 3.5 cms, and injury Nos.2 and 3 were self

implicated ones while being hanged or while hanging one self. He further

deposed that the injuries would age between 24 to 36 hours prior to the

autopsy and the injury could have been caused by a soft cloth. Injury KL, J & SKS, J Crl.A.No.1106 of 2013

Nos.2 and 3 could have been caused by the blunt object. He further gave

an opinion that the death was due to hanging and the same was stated in

Ex.P8 - Post Mortem Report. Therefore, the evidence of PW.11 shows that

the death was due to hanging. PW.11 has not given any information about

the homicidal death. Further, he has admitted that injury Nos.2 and 3

were possible while being hanged or hanging herself. The complaint of

PW.1 itself shows that the deceased committed suicide and PW.4 deposed

that the deceased committed suicide, whereas, the trial Court observed in

the impugned judgment that if the deceased hanged herself, who removed

the body from the place of hanging i.e., beam, and put her body on the

ground, the prosecution story itself shows that the accused along with

PW.3 removed the saree from the neck of the deceased for shifting her to

the hospital. As such, the conclusion of the trial Court that it was a

homicidal death, cannot be accepted. Accordingly, this point is answered.

12. As the prosecution failed to prove that the death of the deceased is

a homicidal death, now it is to be seen whether there is abetment of

suicide by the accused to commit the suicide.

13. The statements of PW.1 to PW.12 shows that the

deceased - Chenamma was married to accused on 27.02.2009 and that

originally, they were residing at Mansoorpally Village and then shifted to KL, J & SKS, J Crl.A.No.1106 of 2013

Ganded and the said Chennama was working as Nurse at

Mohammadabad. The statements of PW.1 to PW.12 categorically show

that the said Chenamma died on 23.11.2009. As per PWs.1, 2 and 4,

when they visited the place of offence to see the deceased having come to

know about her death, they found that the body was lying on the ground.

Both PWs.1 and 2 who are parents of the deceased contended that the

accused suspected the deceased and he had the habit of harassing the

deceased physically and mentally.

14. The fact of harassing the deceased physically and mentally is

corroborated by the evidence of PWs.1, 2 and 4 who are the parents and

the brother in law of the deceased. The accused contended that the

deceased committed suicide by hanging herself due to stomach pain but

there was no evidence on record to show that she was suffering from

stomach pain. Moreover, accused has also not adduced any medical

evidence to show that deceased was suffering from stomach pain or any

other ailment or was being treated for the same. PW.7 - employer of the

deceased and also a medical officer was not cross examined regarding

whether the deceased was suffering from any kind of ailment. Therefore,

there is no evidence adduced by the accused to prove that she hanged

herself due to stomach pain.

KL, J & SKS, J Crl.A.No.1106 of 2013

15. Section 306 of the IPC reads as under:

"306. Abetment of suicide.--If any person commits suicide, whoever

abets the commission of such suicide, shall be punished with

imprisonment of either description for a term which may extend to ten

years, and shall also be liable to fine".

16. The evidence on record specifies only to the extent that the

deceased used to come home at late hours and the accused used to

suspect her character and harass her. The evidence of PW.1 and PW.2

show that the deceased used to work as a Nurse with one Dr. Rajender at

Mohommadabad. According to PW.7 - Dr. Rajender, the deceased worked

with him as a Nurse and her working hours were between 10:00 am to

05:00 pm., as such, there is a force in the stand of the prosecution that

as the deceased was a Nurse and she used to come home late and

accused suspected her.

17. Though the death of the deceased occurred within 7 years of

marriage, there is no evidence on record with regard to demand of dowry,

whereas, the evidence of PWs.1 and 2 shows that the accused used to

suspect the deceased as she was working as a nurse in a hospital of

Dr.Rajender. PWs.1 and 2 further deposed that the deceased used to beat

and abuse her whenever she came home late. The incident occurred

within 7 months of marriage, the deceased was constantly harassed by

the accused suspecting her character. On 27.02.2009 the marriage of the

accused and deceased took place. The deceased committed suicide on KL, J & SKS, J Crl.A.No.1106 of 2013

23.11.2009. The deceased informed her parents about the attitude of

accused. PW.4 who is the relative of the deceased also deposed that the

accused was a tailor while the deceased was working as a nurse at

Mohammadabad, so the accused used to suspect her character whenever

she came home late from the duty and hence, would pickup quarrel with

her and harass her suspecting her character. He further deposed that

many times, the deceased was pacified and was asked to lead her

matrimonial life with accused. The evidence of all the witnesses

corroborate with each other with regard to the continuous harassment of

the accused.

18. As seen from the record, the deceased committed suicide within

seven months of marriage and her husband subjected her to cruelty

which drove the deceased to commit suicide. Therefore, it can be

presumed under Section 113-A of the Indian Evidence Act, that the

suicide had been abetted by her husband. Section 113-A of the Indian

Evidence Act reads as under:

"113A. Presumption as to abetment of suicide by a married

woman. --When the question is whether the commission of

suicide by a woman had been abetted by her husband or

any relative of her husband and it is shown that she had

committed suicide within a period of seven years from the

date of her marriage and that her husband or such relative

of her husband had subjected her to cruelty, the court may

presume, having regard to all the other circumstances of KL, J & SKS, J Crl.A.No.1106 of 2013

the case, that such suicide had been abetted by her

husband or by such relative of her husband".

19. Further, Section 498-A of IPC provides that whoever being the

husband or the relative of the husband of a woman subjects such women

to cruelty shall be punished with imprisonment for three years and will

also be liable to pay fine. For purposes of this Section, cruelty is defined

to mean any willful conduct which is of such nature, as is likely to drive

the women to commit suicide or to cause grave injury or damage to life,

limb or health (whether mental or physical) of the woman or harassment

of the woman where such harassment is with a view to coercing her or

any person related to her to meet any unlawful demand for any property

or valuable security or is on account of failure by her or any person

related to her to meet such demand. In the present case, the evidence on

record proves the cruelty of the accused/husband towards the

deceased/wife which falls under the first limb of Section 498-A of IPC.

20. It has been established beyond reasonable doubt that this conduct

of the appellant pushed his wife to such a stage, leaving no option for her

except to commit suicide. From the evidence led by the prosecution, it has

been proved that the deceased hanged herself due to the continuous

harassment of the accused. Thus, the offence under Section 498-A and

306 of IPC stands proved against the appellant and he is held guilty of

having abetted the commission of suicide by his wife. The trial Court also KL, J & SKS, J Crl.A.No.1106 of 2013

framed charges for the offences under Sections 498-A and 306 of IPC and

the charge sheet itself was filed for the said offences. Accordingly, point

Nos.2 and 3 are answered.

21. The trial Court, erroneously came to the conclusion that the death

of the deceased is homicidal death and thrown the burden on the accused

stating that he has to prove that the deceased committed suicide. Though

the averments in Ex.P1 complaint itself shows that the deceased

Chenamma hanged herself, which is supported by PW.4 and PW.11 -

Medical Officer, the trial Court wrongly concluded it as homicidal death

and convicted the accused for offence under Section 302 of IPC. In view

thereof, this Court is of the opinion that the impugned judgment dated

01.10.2013 is not legally sustainable and it suffers with irregularity, as

such, it is liable to be interfered with.

22. In the result, the appeal is partly allowed by setting aside the conviction

and sentence for the offence under Section 302 of IPC and the

appellant/accused is acquitted for the same, whereas, he is found guilty for

the offence under Section 498-A and 306 of IPC. Accordingly, he is convicted

and sentenced to undergo Rigorous Imprisonment for a period of three years

and to pay a fine of Rs.1,000/- for the offence under Section 498-A of IPC, in

default of payment of fine, he shall undergo Simple Imprisonment for a period

of one month. Further, he is convicted and sentenced to undergo Rigorous

Imprisonment for a period of seven years and to pay a fine of Rs.2,000/- for KL, J & SKS, J Crl.A.No.1106 of 2013

the offence under Section 306 of IPC, in default of payment of fine, he shall

undergo Simple Imprisonment for a period of two months. Both the sentences

shall run concurrently. The period of sentence of imprisonment already

undergone by the appellant/accused i.e., from 01.10.2013 to 19.04.2021 and

the fine of Rs.10,000/- is hereby set off. The bail bonds of the accused shall

stand cancelled. He is set at liberty, forthwith, if he is not required in any other

crime or case.

As a sequel, the miscellaneous petitions, if any, pending in this

appeal shall stand closed.

____________________ K. LAKSHMAN, J

__________________ K.SUJANA, J

Date :23.09.2023 PT KL, J & SKS, J Crl.A.No.1106 of 2013

HON'BLE SRI JUSTICE K. LAKSHMAN AND HON'BLE SMT JUSTICE K. SUJANA

P.D. JUDGMENT IN CRIMINAL APPEAL No.1106 OF 2013

(Pre-delivery judgment of the Division Bench prepared by the Hon'ble Smt Justice K. Sujana)

Date: 23.09.2023 PT