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2003 DIGILAW 1145 (AP)

Dudekula Muntimadugu Rahim v. State Of A. P.

2003-09-08

K.C.BHANU

body2003
K. C. BHANU, J. ( 1 ) THIS appeal is directed against the judgment in S. C. No. 28 of 1998 on the file of the Additional Sessions Judge, Hindupur dated 14-2-2000, whereby A-1 was found guilty for the charges under Section 306 IPC and sentenced him to undergo Rigorous imprisoment for a period of five years and to pay a fine of Rs. 20,000/- while acquitting the accused 2 and 3 for the charges under Section 498-A and 304-B and 201 IPC. ( 2 ) THE facts that lead to filing of this appeal are as follows: the marriage of the deceased was performed with the first accused on 16-9-1996 and it is alleged that PW-1 gave Rs. 65,000/- and 12 tulas of gold to A-2. After the marriage for about three months both A-1 and the deceased lived happily and subsequent by a demand for additional dowry was made by all the accused. PW-1 paid Rs. 50. 000/- each on two occasions but in spite of paying rs. 1,00,000/- on two different occasions the accused still demanded money. On 30-6-1997 p. W. 3 went to the house of PW-1 and informed that the deceased was not doing well. Therefore, both P. Ws. l and 2 went to the house of the accused and saw their daughter lying dead on a cot and immediately they went to police station and gave a complaint. On the complaint the police registered a case in Cr. No. 33 of 1997 under sections 498-A and 304-B IPC. The learned judicial Magistrate of First Class, Penukonda registered a case in PRC No. 76 of 1997 and committed the same to the Sessions Division, anantapur. The Mandal Revenue Officer held inquest on the dead body of the deceased and thereafter, the dead body was sent to the post mortem examination. The Doctor who conducted autopsy on the dead body of the deceased opined that the deceased died due to suicide by hanging. After receipt of the report of the Forensic Laboratory and after completion of investigation, the police filed a charge sheet. On behalf of the prosecution 11 witnesses were examined and 12 documents were marked besides MOs 1 to 13. The lower court after considering the evidence on record found A-1 guilty under section 306 IPC and accordingly he was convicted and sentenced as aforesaid. On behalf of the prosecution 11 witnesses were examined and 12 documents were marked besides MOs 1 to 13. The lower court after considering the evidence on record found A-1 guilty under section 306 IPC and accordingly he was convicted and sentenced as aforesaid. Aggrieved by the same, the first accused A-1 preferred the present appeal. ( 3 ) THE learned counsel for the appellant contended that the prosecution failed to prove that the deceased died as a result of suicide and having acquitted the accused for the offence under Section 498-A IPC should not have convicted him under Section 306 ipc taking aid of Section 113-A of Evidence act inasmuch as "cruelty" in both the Sections is one and the same and therefore, he prays to acquit the accused No. 1. ( 4 ) ON the other hand the learned come appearing on behalf of the Public Prosecutor contended that the Doctor did not say that it is a case of homicidal death but this court can set aside the finding of the learned Sessions judge, and he prays to convict the accused. ( 5 ) THE accused No. 1 was convicted under section 306 IPC. Accused Nos. 2 and 3 were found not guilty of the offences under sections 498-A, 304-B 201 IPC. For an offence under Section 306 IPC there should be abetment to commit suicide. What is "abetment" is defined under Section 107 of ipc. Section 107 reads as follows:"107. Abetment of a thing :- A person abets the doing of a thing who :- first :- Instigates any person to do that thing; or secondly :- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or thirdly :- Intentionally aids, by any act or illegal omission, the doing of that thing. " ( 6 ) THE lower court drew the presumption under Section 113-A of the Evidence Act, which reads as follows:"113-A. 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 ercuelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. Explanation :- for the purpose of this section, "cruelty" shall have the same meaning as in section 498-A of the Indian Penal Code. " ( 7 ) THEREFORE, unless a person comes within the purview of Section 498-A he cannot be convicted under Section 113-A of the Indian evidence Act, having convicted the same person under Section 498-A of IPC. ( 8 ) AS rightly contended by the learned counsel for the appellant the prosecution did not adduce any evidence to show that it is a case of suicide. It is relevant to refer to the evidence of PW-8 who is one of the Doctors conducted postmortem examination on 1-7-1997. According to the Doctor the face was swollen and servos discharge from the nostril was present. Upper half of the body was cyanosed. Peripherie of the upper limbs are cyanosed. He also found that external injuries on the right side of the neck showed blue color contusion of 2"x11/2 cms in size horizontal to the neck line, below the right ear, and an abrasion of 3 x 3cm in size on the unselical resic in midline. According to the doctor heart was normal and congested, and lungs were normal and congested, and stomach was normal, congested and empty. He also found that the hyoid bone was fractured. The Forensic Laboratory after examination found that fracture was antimortem. Basing on the report given by the forensic Laboratory, the Doctor gave final opinion stating that the death was due to throttling. The Doctor did not give any opinion with regard to the nature of death, i. e. , whether it was suicidal death of nature or homicidal. The Forensic Laboratory after examination found that fracture was antimortem. Basing on the report given by the forensic Laboratory, the Doctor gave final opinion stating that the death was due to throttling. The Doctor did not give any opinion with regard to the nature of death, i. e. , whether it was suicidal death of nature or homicidal. The symptom as found by the doctor on the body would indicate that it was a homicidal death. Because in general in a case of suicidal death by throttling there would be a ligature mark on the neck of the deceased. No such mark has been found by the Doctor in this case. Further the body was found lying on the cot, and therefore, theory of suicide be ruled out. Therefore, it is a case of homicidal death. The first ingredient of the offence under Section 306 of IPC has thus not been established. ( 9 ) COMING to the other ingredients of the offence under Section 306 IPC, there should be an instigation by the accused of the victim committing the suicide. But in this case, nobody knows as to the exact nature or cause of the death of the deceased. It is in the evidence on record to show that after 8 A. M all the accused used to go to their shop and they remain present in the shop till 8 PM. At about 11 AM, the clerk of A-1, who is PW-3 informed A-1 and A-2, about the incident. But there is no evidence to show that when the deceased had died. ( 10 ) SINCE the State has not preferred any appeal questioning the findings given by the learned Sessions Judge, in respect of the other charges, it is not desirable to set aside the findings in the appeal preferred by the accused questioning his conviction and sentence under Section 306 IPC. Therefore, this judgment of the lower court has to be limited to the extent of conviction of the accused under Section 306 IPC. The law is well settled that in order to draw the presumption under Section 113-A of the evidence Act, it must be proved by the prosecution that the deceased was subjected to cruelty before her death, and the explanation to this Section provides that "cruelty" as defined under Section 498-A ipc shall apply to that Section as well. The law is well settled that in order to draw the presumption under Section 113-A of the evidence Act, it must be proved by the prosecution that the deceased was subjected to cruelty before her death, and the explanation to this Section provides that "cruelty" as defined under Section 498-A ipc shall apply to that Section as well. Explanation to Section 498-A IPC reads as follows:"explanation :- For the purposes of this section, "cruelty" means- (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury o danger to life, limb or health (whether mental or physical) of the woman; or (b) 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. " ( 11 ) THE lower court gave a finding that the accused No. 1 has not committed an offence under Section 498-A of IPC. Since cruelty for the purpose of Section 498-A IPC and also under Section 113-A of the Indian evidence Act has the same meaning, having acquitted the accused under Section 498-A ipc the lower court ought not to have drawn the presumption under Section 113-A to convict him under Section 306 IPC. ( 12 ) IN a decision reported Jagdish Chander v. State of Haryana upon which learned counsel for appellant it is held that to draw the presumption under Section 113-A of the evidence Act, the first requisite that must be proved is that wife subjected to cruelty as defined under Section 498-A, IPC. The other decision relied upon by the learned counsel is Madhusudan Hazra v. State wherein it is held "penal Code (1860), Section 498-A dowry death-Cruelty -Oral evidence as to torture for alleged non-payment of dowry not reliable-Omission to disclose, alleged to be written by deceased wife, causing prejudice to accused husband-Failure to examine brother or mother of deceased to prove handwriting of deceased- Offence under Section 498-A held not proved-presumption under Section 113-A of the evidence Act cannot be raised-conviction under Section 498-A and Section 306 based on presumption under Section 113-A, evidence Act, liable to be set aside. " Another decision of this court reported in C. Veerudu and another v. State of Andhra Pradesh, is relied upon by the learned counsel wherein it is held that when once the offence under section 498-A IPC is established the Court shall draw a presumption having regard to all the other circumstances of the case that the suicide was abetted by the accused found guilty under Section 498-A IPC. So before, drawing the presumption the Court shall have to take into consideration all the other circumstances of the case. Where the very offence under Section 498-A IPC is not proved, there is no need to go into the other circumstances of the case for purposes of involving the accused under Section 306 IPC. " ( 13 ) THEREFORE, in view of the above law and in view of the Provisions in Sec. 498-A ipc and Section 113-A of the Evidence Act, it is clear that the "cruelty" under both the sections is one and the same, and once the accused is acquitted under Section 498-A of ipc, he cannot be convicted by drawing the presumption under Section 113-A of the Evidence Act to convict him under section 306 IPC. ( 14 ) WITHOUT adverting to these aspects, the lower court simply convicted the accused- appellant under Section 306 IPC. There was absolutely no evidence to show that the accused abetted the deceased to commit suicide, and therefore, this court has to interfere with the conviction recorded against the appellant. ( 15 ) IN the result, the appeal is allowed and the accused is acquitted for the offence under section 306 IPC. The fine amount if any paid shall be returned to him. The bail bonds shall stand cancelled.