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Andhra High Court · body

2005 DIGILAW 1079 (AP)

Jaligam Ramesh v. State Of A. P.

2005-11-15

GOPALA KRISHNA TAMADA

body2005
( 1 ) A-1 to A-5 in Sessions case No. 74 of 1996, on the file of the additional Sessions Judge at Nizamabad, who were convicted of the offence punishable under Section 304-B of the Indian Penal code (for brevity ipc ) and sentenced to undergo rigorous imprisonment for a period of seven years each, are the appellants in this appeal. ( 2 ) ORIGINALLY, before the Court below, a-1 to A-6 were put on trial of the offence punishable under Section 304-B IPC. A-6 died during the pendency of the Sessions case and A-2 i. e. , father of A-l died during the pendency of this appeal. Now, the appeal of A-l and A-3 to A-5 survives for consideration. ( 3 ) THE charge framed by the learned additional Sessions Judge against the accused is as follows :"that A-l of you being husband of the deceased Smt Bhaktamala, A-2 to A-6 of you being in-laws, brother-in-law, co-sister and father-in-law of A-4 of you, on 17-8-1994 at about 9 a. m. , and prior there at namdevwada locality in Nizamabad Town subjected the deceased Bhaktamala, whom a-1 of you married about three and half years ago, to cruelty for additional dowry, within seven years of your marriage, and due to your said harassment and beating, the deceased Bhaktamala committed suicide by drowning herself in Godavari River at Basar. " ( 4 ) THE parties are hereinafter referred to as they were arrayed in the Sessions case. ( 5 ) THE case of the prosecution, as unfolded during the course of trial, is as follows : ( 6 ) THE deceased-Smt. Bhakthamala was a resident of Kamareddy and her marriage with A-l was performed on 31-3-1991. P. W. I is the brother of the deceased and P. W. 2 is the father of the deceased, whereas P. W. 3 is the wife of p. W. I. All the accused are interrelated with each other. A-l is the son of A-2 and a-3. A-4 and A-5 are brother and sister-in- law of A-1, respectively. A-6 is the father of A-5. ( 7 ) AT the time of marriage, parents of the deceased paid an amount of Rs. 80,000/- towards dowry and 11 tulas of gold and household articles worth Rs. 30,000/- to A-l. After the marriage, the deceased and A-l stayed at Khanapur Village for sometime along with A-2 to A-5. A-6 is the father of A-5. ( 7 ) AT the time of marriage, parents of the deceased paid an amount of Rs. 80,000/- towards dowry and 11 tulas of gold and household articles worth Rs. 30,000/- to A-l. After the marriage, the deceased and A-l stayed at Khanapur Village for sometime along with A-2 to A-5. All of them are living together. Though the deceased and a-l lived happily for about three months, thereafter, A-l along with other accused started harassing the deceased and demanding additional dowry of an amount of Rs. 15,000/- and 10 tulas of gold. While so, three or four days prior to Diwali Festival, in the year 1991, P. W. 1 went to the house of A-1 to invite them for Diwali Festival and at that time all the accused demanded p. W. 1 to give half tula of gold and new cloths. Accordingly, P. W. I agreed and fulfilled the demand of the accused on the day of Diwali Festival. Again the deceased came to the house of the accused and was residing with them. Later on, when P. W. I went to the house of the accused to see the deceased, again the accused demanded p. W. 1 to pay an amount of Rs. 50,000/- towards additional dowry and also ten tulas of gold, for which P. W. I expressed his inability. Four months thereafter, the deceased was beaten by all the accused and was sent to her parents house stating that she will be taken back only after the said demand is fulfilled. ( 8 ) AS there was no response from the accused and the deceased was residing with her parents, four months thereafter, p. W. 1 approached elders at Kama Reddy and informed them about the demand of the accused and it appears that the elders promised to settle the dispute. Accordingly, the elders settled the dispute on 4-11-1992. However, three months thereafter, the accused again started demanding the deceased and sent her back to her parents house and she was never taken back. On 1-2-1994, as she was driven out of the house for want of additional dowry, the deceased gave a report to the police at sadashivanagar Police Station against the accused for the offence punishable under section 498-A IPC and the said complaint was marked as Ex. P-2. On 1-2-1994, as she was driven out of the house for want of additional dowry, the deceased gave a report to the police at sadashivanagar Police Station against the accused for the offence punishable under section 498-A IPC and the said complaint was marked as Ex. P-2. Pursuant to the said complaint, A-l approached the police and gave a letter to the Additional superintendent of Police at Kama Reddy to the effect that he would never demand dowry and thus took the deceased to his native place. The said letter was marked as ex. P-3. Again in the month of March, 1994, a-l approached P. W. I and requested him to give an amount of Rs. 50,000/- for the purpose of doing business in old gunny bags at Nizamabad and accordingly, P. W. I paid the said sum. Pursuant to which, A-l opened a shop and living at Nizamabad along with the deceased. As-the deceased was pregnant, P. W. 1 took her to their house and after performing Sreemantham ceremony, she was sent back to the house of the accused on 1-8-1994. On 17-8-1994, A-l came to the house of P. W. I in the mid might and informed that the deceased is not found since morning and their searches were futile. The next day i. e. , on 18-8-1994, p. W. I went to the police and gave a complaint to the police and the police registered a case in Crime No. 186 of 1994 for the alleged offence punishable under section 498-A IPC and also woman missing. The said complaint was marked as Ex. P-4. Based on the said complaint, the police started investigation and recorded the statements of P. Ws. 3 to 8. Subsequently, on 1-9-1994, on information from P. W. I, that a body of a female was found at pochampadu, P. W. 16-Investigating Officer, on confirming that the dead body is that of the deceased, altered the section of law in the First Information Report to Section 304-B ipc. On the requisition by P. W. 17-Inspector of Police, P. W. 14-Mandal Revenue officer conducted an inquest over the dead body of the deceased on 4-9-1994 and the inquest report was marked as Ex. P-8. The rough sketch of the scene of offence prepared by P. W. 6 was marked as Exp-12. On the requisition by P. W. 17-Inspector of Police, P. W. 14-Mandal Revenue officer conducted an inquest over the dead body of the deceased on 4-9-1994 and the inquest report was marked as Ex. P-8. The rough sketch of the scene of offence prepared by P. W. 6 was marked as Exp-12. On 8-9-1994, P. W. 17 went to the house of a-6 and arrested all the accused and they were remanded to judicial custody. The doctor was examined as P. W. 10 and according to him, the cause of death cannot be determined as the body was completely decomposed and skeletonized. Ex. P-6 is the post-mortem report. P. W. 18 is the Forensic expert who gave his opinion and the said opinion was marked as Ex. P-7. After completion of the entire investigation, the charge-sheet was filed by the Sub-Divisional police Officer who was examined as p. W. 19. ( 9 ) THE prosecution examined as many as 19 witnesses and got exhibited Exs. P-1 to P-13. The plea of the accused is one of total denial. However, the Court below based on the evidence of P. Ws. 1 and 2 i. e. , the brother and father of the deceased, respectively, about the identity of the dead body and the harassment, found the accused guilty of the offence punishable under Section 304-B IPC and sentenced them to undergo imprisonment as stated supra. ( 10 ) THE contention that has been strenuously put forth by the learned Counsel sri Viswanadham, is that the dead body has not been identified and also that the cause of death could not be ascertained and in absence thereof, the conviction cannot be maintained. According to him, the dead body that was found on 4-9-1994 was not at all identified and as such the Court ought not to have come to the conclusion that the dead body is that of the wife of a-1. He has drawn my attention to the reports, submitted by the doctors who were examined as P. Ws. 10 and 18. The doctor i. e. , P. W. 10, to whom the body was sent for post-mortem examination, could not state as to whether the dead body is that of a male or female. In the absence of proper identification, it is not proper for the Court below to convict the accused based on the testimony of P. Ws. The doctor i. e. , P. W. 10, to whom the body was sent for post-mortem examination, could not state as to whether the dead body is that of a male or female. In the absence of proper identification, it is not proper for the Court below to convict the accused based on the testimony of P. Ws. 1 and 2 who are none other than the brother and father of the deceased, respectively. ( 11 ) IN opposition to the aforesaid submissions, the learned Additional Public prosecutor, with his usual vehemence, submitted that the Court below on an analysis of the entire evidence on record rightly arrived at the conclusion that the accused are guilty of the offence punishable under section 304-B IPC and hence, it need not be interfered with. ( 12 ) IN the light of the said submissions, the points that arise for consideration are : 1. Whether the dead body that was found on 4-9-1994 is that of the wife of 1st appellant? 2. If so, was there dowry harassment as contended by the prosecution? ( 13 ) POINT No. 1 : No doubt, P. Ws. l and 2 have spoken in so many words about the alleged harassment, demand for dowry and mediations etc. Before adverting to that aspect, it is necessary for this Court to decide as to whether the dead body that was found on 4-9-1994 is of the deceased i. e. , the wife of the 1st appellant. ( 14 ) IN nutshell, the case of the prosecution is that the accused harassed the deceased for dowry and that the deceased, unable to bear such harassment, left the house of the accused on 17-8-1994, and on 31-8-1994, P. W. 9 informed P. W. I about a body floating in Godavari River near Basar and that P. W. I identified the said body as that of the deceased. ( 15 ) THE evidence of P. W. I is that on the night of 17-8-1994, A-l came to his house and informed that the deceased was not found since morning. P. W. I gave complaint to the police on 18-8-1994. He stated that in search of the deceased he went to Nirmal on 1-9-1994 where P. W. 9 informed him that he saw a dead body floating in Godavari River near Basar. P. W. I gave complaint to the police on 18-8-1994. He stated that in search of the deceased he went to Nirmal on 1-9-1994 where P. W. 9 informed him that he saw a dead body floating in Godavari River near Basar. P. W. I went to Basar, saw the dead body and went to Nizamabad and informed the same to the police. P. W. I is the resident of kamareddy in Nazamabad District and p. W. 9 is the resident of Nirmal in Adilabad district. P. Ws. l and 9 are not known to each other. P. W. 9 stated that though there is a police outpost on the way to Nirmal from Basar, he did not inform the police. While P. W. I stated that he informed the police on 1-9-1994 about the dead body p. W. 16 who is Sub-Inspector of Police stated that he gave a requisition to the mandal Revenue Officer on 5-9-1994 to conduct inquest over the dead body. There is no explanation why he gave requisition on 5-9-1994 when P. W. I informed about the dead body on 1-9-1994. When once P. W. I gave information on 1-9-1994, police should have recovered the body immediately. Moreover, when the evidence of P. W. 1 and p. W. 9 is that they saw the dead body near basar, the case of the prosecution is that the dead body is found at Pochampadu reservoir. P. W. 9 stated that he saw the dead body on 18-8-1994 and P. W. I stated that he saw the dead body on 1-9-1994. It is nobody s evidence that on 5-9-1994 police searched the body first at Basar and then ultimately found it at Pochampadu Reservoir. P. W. 12 who is doing hotel business at pochampadu stated that he saw the dead body floating in Godavari River and he informed the same to the police. However, the evidence of P. W. 6, Sub Inspector of police is that information about the dead body is given to the police by P. W. 1. ( 16 ) THE above evidence with regard to the finding of the dead body and giving a requisition for conducting inquest over the dead body, apart from being inconsistent, is not natural. P. W. 1 is the complainant and brother of the deceased. ( 16 ) THE above evidence with regard to the finding of the dead body and giving a requisition for conducting inquest over the dead body, apart from being inconsistent, is not natural. P. W. 1 is the complainant and brother of the deceased. It has come in the evidence that one of his brothers-in-law is a police head constable. To repeat, P. W. I informed the police on 1-9-1994, but P. W. 16 gave requisition for inquest on 5-9-1994. ( 17 ) COMING to the identification of the dead body, according to Ex. P-6-post-mortem report, the body is totally decomposed and skeletonized. For ready reference, the said post-mortem report is extracted as hereinunder : "the body was putrefied and dis-organized and the body parts are incomplete. The external appearance of the body. 1. Skull and the facial bones were exposed completely. There was degloving of the scalp total loss of hairs and the scalp mass was found bunched at the gap of the neck. 2. Eyes and ears were absent. 3. The skin over the neck was absent. 4. Skin over the chest wall and entire back was present. 5. Skin over the abdomen was also absent. 6. The pelvis was totally dis-organised, sacrum and pelvic bones were absent. Lumber vertebrae were present. 7. The right arm was absent from the elbow. 8. The left arm was absent from the upper one third of the forearm. 9. The right lower limb was absent, from below the lower one third of the leg. 10. Left lower limb was absent from below lower two third of the thigh. 11. Walls of the scalp were intant and there was fracture of left zygomy. Mandible was intact. Both jaws were devoid of teeth and two sockets they are also not present. 12. There was brownish tissue mass in the place of the tongue, hyoid was intact, tracheal rings were exposed 4th and 5th tracheal rings were found cut. 13. Mammary tissue was not traceable and there were multiple ribs fractures on both the sides. 14. Left clavicle had a fracture in middle one third. 15. Mediastimum was mass of brown tissue, oesopthegus could not be traced. 16. Mucus was absent in trachea and bronchi tracheal rings were exposed. 17. Lungs were collapsed and soft black mass were present on both sides. 18. Heard and other vessel could not be made out. 19. 14. Left clavicle had a fracture in middle one third. 15. Mediastimum was mass of brown tissue, oesopthegus could not be traced. 16. Mucus was absent in trachea and bronchi tracheal rings were exposed. 17. Lungs were collapsed and soft black mass were present on both sides. 18. Heard and other vessel could not be made out. 19. Stomach and contents could not be made out. 20. Small and large intestines were absent. 21. There was a shrunken soft brown mass in the place of the liver were present. 22. Pancrease, spleen and kidney could not be made 23. The pelvic walls were absent, urinary bladder and uriters were absent. The spine was intact from the servical to the lumber. Sacrum was absent. " ( 18 ) FURTHER, there are lot of inconsistencies in the evidence. Firstly, the evidence of P. W. 10 who conducted autopsy over the dead body opined that the dead body is in such a decomposed state and that he could not determine whether it was of a male or female. It has come in the evidence of P. W. 14, Mandal Revenue officer who conducted inquest over the dead body that no clothes were found on the dead body. P. W. I stated that he saw the dead body with a white saree. When a civil Assistant Surgeon, who conducted autopsy over the dead body, was unable to determine the sex of the dead body, it is not safe to rely on the identification of P. W. 1. Even, P. W. I could identify the body as it was having a white saree which fact is not in agreement with the inquest report. ( 19 ) IN the light of the above evidence, it cannot be said that the alleged dead body is that of the deceased. However, the foundation of the prosecution with respect to the death of the deceased is the dead body found. On the basis of this dead body alone, the offence is altered from woman missing to Section 304-B IPC. ( 20 ) THOUGH it is trite law that the corpus delicti is no longer a sine qua non to come to the conclusion that a murder has taken place, however, when the evidence with regard to the identification of the dead body is not convincing, it is not safe to convict the accused for the offence of committing murder. ( 20 ) THOUGH it is trite law that the corpus delicti is no longer a sine qua non to come to the conclusion that a murder has taken place, however, when the evidence with regard to the identification of the dead body is not convincing, it is not safe to convict the accused for the offence of committing murder. The case on hand is not that there is no dead body at all. This is a case where the prosecution failed to prove that the body found is that of the deceased. Therefore, I hold that the prosecution failed to prove beyond reasonable doubt that the accused have committed offence punishable under Section 304-B ipc. ( 21 ) POINT No. 2 : P. W. 1 stated about the demands made by the accused for additional dowry and holding of Panchayat in that regard. He also spoke about sreemantham function being performed and stated that none of the accused attended the said function. However, he admitted in the cross-examination that he did not state these facts to the police though he was examined twice by the police. Apart from this, there are inconsistencies in the evidence of P. Ws. l to 4 with regard to the persons present at the Panchayat. Hence, considering the totality of the evidence and in view of my finding on point No. 1 that the prosecution failed to prove that the dead body is that of the deceased, I hold that the prosecution also failed to prove the harassment by the accused for additional dowry, beyond reasonable doubt. Accordingly, the criminal appeal is allowed. Bail bonds of the appellants-accused shall stand cancelled.