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Andhra High Court · body

2007 DIGILAW 1040 (AP)

Katikala Ratnam v. State

2007-10-23

D.S.R.VERMA, K.C.BHANU

body2007
JUDGMENT D.S.R.VARMA Heard the learned counsel appearing for the appellant-Accused No.1 (for brevity "A-1") and the learned Public Prosecutor, appearing for the respondent- State. 2. Appellant is Accused No.1 in the Sessions Case. 3. This Criminal Appeal, by A-1 (through jail), under Section 374 (2) Cr.P.C., is directed against the judgment, dated 30.11.2004, passed by the IX Additional District and Sessions Judge (Fast Track Court), Guntur, in S.C.No.685 of 2002, convicting A-1 for the offence punishable under Section 302 I.P.C., and sentencing him to suffer imprisonment for life and to pay a fine of Rs.100/-, in default to suffer simple imprisonment for seven days and also convicting for the offence punishable under Section 498-A I.P.C., and sentencing him to suffer rigorous imprisonment for a period of three months and to pay a fine of Rs.100/- , in default to suffer simple imprisonment for seven days and directed to run both the sentences concurrently. 4. The gravamen of the charge is firstly, on or about the 9th day of May 2002, A-1, at his house, committed murder of his wife intentionally (or knowingly), by kicking her indiscriminately on her body, and thereby committed the offence punishable under Section 302 I.P.C., or A-1 along with A-2 and A-3, parents of A-1, within seven years from the date of the marriage of the deceased with A-1, subjected her to cruelty and harassed bodily either in connection with any demand of dowry or otherwise and thereby, committed the offence punishable under Section 304-B read with Section 34 I.P.C; secondly, A-1, being the husband of the deceased, along with A-2 and A-3, subjected the deceased to cruelty by beating her for demand of more dowry and thereby, committed the offence punishable under Section 498-A read with Section 34 I.P.C., and thirdly, in furtherance of their common intention, A-1 along with A-2 and A-3 kicked the deceased for more dowry and caused her death by causing bodily injury and thereby, committed the offences punishable under Sections 304-B and 498-A read with 34 I.P.C. 5. The case of the prosecution, in brief, is that the marriage of A-1 and the deceased was performed on 14.02.2000; that, though it was agreed that a total sum of Rs.35,000/-, one gold chain and one gold ring will be given to A-1, at the time of the marriage, the said promises had been complied with in part by way of paying only Rs.20,000/- and a gold ring; that, after the marriage, A-1 along with A-2 and A-3, who were living together, started harassing the deceased to make good the deficiency of the amount of dowry; that the deceased used to inform her parents by telephone from the neighbour's house about the demand for additional dowry by A-1 to A-3 from time to time; that eventually, the mother of the deceased (P.W.1) along with P.W.5 (grandfather of the deceased by courtesy) went to the house of A-1 to A-3, paid a sum of Rs.15,000/- and gave a gold chain towards full and final satisfaction of the dowry amount, which was originally agreed to; that, after some time i.e., on 09.05.2002, at about 11 pm., A-1 informed P.W.1 that the deceased was suffering from severe headache and was hospitalized, with a further request to come and see her; that pursuant thereto, P.W.1 along with others went to the village, where the deceased was living with A-1 and found the dead body of the deceased laid on the floor in front of the house of A-1; that P.W.1 found injuries all over the body of the deceased and a ligature mark on her neck; that, later on, P.W.1 gave a complaint to the Police, Ex.P-1 and that the Police initiated investigation and after completion of all the formalities, filed the charge sheet. 6. When charges under Section 302 I.P.C., against A-1 or in the alternative under Section 304-B read with Section 34 I.P.C., and under Section 498-A read with Section 34 I.P.C., against A-1 to A-3 were framed, read over and explained to them in Telugu, they pleaded not guilty and claimed to be tried. 7. In order to bring home the guilt of A-1 to A-3, the prosecution examined P.Ws.1 to 15 and got marked Exs.P-1 to P-19 and M.O.1 on its behalf. 8. 7. In order to bring home the guilt of A-1 to A-3, the prosecution examined P.Ws.1 to 15 and got marked Exs.P-1 to P-19 and M.O.1 on its behalf. 8. The Court below, having considered the entire material, including the evidence, both oral and documentary, available on record, recorded a finding that A-2 and A-3 are found not guilty of all the offences, with which they were charged, and convicted A-1 for the offences punishable under Sections 302 and 498-A I.P.C., and accordingly sentenced him, as stated supra. Aggrieved by the same, A-1 has preferred the present Criminal Appeal. 9. After closure of evidence on behalf of the prosecution, when A-1 to A-3 were examined under Section 313 Cr.P.C., with reference to incriminating material found against them, in the evidence of prosecution witnesses, they denied the same and, on behalf of defence, D.Ws.1 and 2 were examined, but no documents were marked. 10. Learned counsel appearing for A-1 submits that the present case is purely based on circumstantial evidence and the prosecution had failed to establish the case against A-1; that the standards of proof and appreciation of evidence on record, as was done in case of A-2 and A-3 also should have been applied in case of A-1 and that the Court below had erred in convicting A-1 of the offences under Sections 302 and 498-A I.P.C. 11. Learned Public Prosecutor, appearing for the respondent-State, submits that this is a clear case of homicide, as could be seen from the opinion of P.W.10, the Doctor and that there was no proper explanation by the accused even during his examination by the Court under Section 313 Cr.P.C. Therefore, the chain of circumstances is complete pointing out the guilt only towards A-1 and that the Court below was absolutely right in convicting him for the offences under Sections 302 and 498-A I.P.C. 12. In view of the rival contentions of learned counsel appearing on either side, it is necessary to examine the oral evidence on record in order to determine as to whether the conviction and sentence imposed on A-1, by the Court, below are sustainable in law? 13. In view of the rival contentions of learned counsel appearing on either side, it is necessary to examine the oral evidence on record in order to determine as to whether the conviction and sentence imposed on A-1, by the Court, below are sustainable in law? 13. P.W.1, mother of the deceased, deposed about the marriage between A-1 and the deceased, the offer and acceptance of dowry; that she also admitted that only a sum of Rs.20,000/- was paid, instead of Rs.35,000/-, as was originally agreed to, at the time of marriage and that the same was complied with after repeated remainders made by the deceased because of harassment meted out by her at the hands of A-1 and the alleged A-2 and A-3, in-laws of the deceased. She further deposed that, on 09.05.2002, at about 11 pm., she received a telephone call from A-1 that the deceased was suffering with severe headache and was hospitalized; that she was asked to come and see her; that, therefore, she immediately rushed to the village of A-1 and found the deceased lying dead on the floor in front of the house of A-1 with bleeding injuries all over the body and also a ligature mark on the neck and thereafter, she gave a complaint to the Police, Ex.P-1. 14. Same is the version of P.W.2, son of P.W.1 and also P.W.3, to whom the deceased was related as niece. 15. In other words, P.Ws.1 to 3 deposed in the same lines as regards the demand of dowry, its partial compliance, at the time of marriage, and the demand for additional dowry by A-1 to A-3. 16. P.W.4 was declared as hostile witness on all material aspects, but, one important factor, which was lost sight of by the Court below, is that he specifically deposed that, on 08.05.2002 i.e., on the date of death of the deceased, A-1 and the deceased were present in the house, but A-2 and A-3 were not present. Therefore, the evidence of P.W.4 can be made use of, though he was declared hostile, to the limited extent of establishing the fact that A-1 and the deceased were together in the house on the fateful day and A-2 and A-3 were not present. Therefore, the evidence of P.W.4 can be made use of, though he was declared hostile, to the limited extent of establishing the fact that A-1 and the deceased were together in the house on the fateful day and A-2 and A-3 were not present. We are of the considered view that this piece of evidence is crucial, even though the rest of his evidence is absolutely hostile to the case of the prosecution, which will be dealt with later. 17. P.W.5, a close relative of the deceased, deposed about the facts as regards the agreement and demand of dowry and compliance of the same, at a later point of time. 18. The evidence of other prosecution witnesses is not very much relevant. 19. From the above evidence, it is obvious that the prosecution had established the factum of agreement regarding the demand of dowry, at the time of marriage, and compliance of the same, at a later point of time, after the marriage. It is also not in dispute that the death of the deceased had taken place within seven years from the date of her marriage with A-1. 20. Further, as already referred to above, it is obvious that there was a demand for additional dowry and, on that score, the deceased was subjected to harassment, in which case, any fatal injury or death of the deceased has to be dealt with under Section 304-B I.P.C. 21. It is to be remembered that application of Section 304-B I.P.C., would arise only in cases, where there is a doubt as to whether the death is homicide or suicide. When it could not be established by the prosecution, either way, a presumption can be drawn under Section 113-B of the Indian Evidence Act. 22. In the instant case, that question need not be gone into, inasmuch as, it was specifically proved by the prosecution that this was a clear case of homicide, but not suicide. Therefore, application of Section 304-B I.P.C., does not arise. 23. But, in the instant case, it is to be seen that the evidence of P.W.10, the Doctor, coupled with postmortem report, Ex.P-8, would clinchingly prove that the death of the deceased was due to head injury. 24. Therefore, application of Section 304-B I.P.C., does not arise. 23. But, in the instant case, it is to be seen that the evidence of P.W.10, the Doctor, coupled with postmortem report, Ex.P-8, would clinchingly prove that the death of the deceased was due to head injury. 24. P.W.10, the Doctor, who conducted postmortem examination on the dead body of the deceased and issued postmortem report, Ex.P-8, found the ligature mark extending from right angle of mandible to left sternocleido mastoid muscle and on cutting, the tissues under ligature mark are pale in colour, in addition to the following injuries: "1. Contusion on right side of upper back, 10 x 5 cms size. 2. Contusion on right side of forehead." 25. P.W.10 further deposed that the ligature mark found on the dead body of the deceased was post-mortem and injury Nos.1 and 2 were antae-mortem in nature. He further opined that the death of the deceased was due to the second injury i.e., contusion on right side of the forehead. 26. From a perusal of injury Nos.1 and 2, it is abundantly clear that the deceased was subjected to cruelty by A-1, by causing two bodily injuries, out of which one injury was fatal. So far as the ligature mark found on the neck of the deceased is concerned, it is quite obvious that a deliberate attempt was made by A-1 to show that the death of the deceased was because of hanging. 27. In other words, both the bodily injuries and the strangulation on the neck of the deceased were done simultaneously, but with a little gap. It is further obvious that soon after the death of the deceased, knowingly or unknowingly, or to make sure that the deceased died, or in order to show that the deceased died because of hanging, strangulation was also attempted, which resulted in causing ligature mark. 28. We are conscious of the fact that we are dealing with a case of circumstantial evidence and in such a case, the Court should be extra cautious in order to fix the liability on A-1. The entire chain of circumstances shall be strong enough and capable of specifically pointing out towards the guilt of A-1 to record the conviction against him. Hence, little more scrutiny, by the Court, is necessary in appreciating the evidence. 29. The entire chain of circumstances shall be strong enough and capable of specifically pointing out towards the guilt of A-1 to record the conviction against him. Hence, little more scrutiny, by the Court, is necessary in appreciating the evidence. 29. Keeping the settled position of law in mind, we are of the view that it is necessary to consider the evidence of P.W.4, who was declared as hostile witness. No doubt, he did not support the case of the prosecution on material aspects i.e., 'demand of dowry' or 'additional dowry', 'the cause of death' etc. 30. But, from the evidence of P.W.4, one crucial aspect to be noted, which has not been considered by the Court below, is that he did speak specifically that A-1 and the deceased were together in the house on 08.05.2002 and A-2 and A-3 were not present. 31. The said statement of P.W.4, which was not controverted in his cross- examination, in any manner, clearly indicates that it was A-1 alone, who was in the company of the deceased, on the fateful day. The said statement of P.W.4 would be useful only to the extent of eliminating A-2 and A-3, nevertheless his statement regarding the presence of A-1 in the house exclusively in the association of the deceased, on the fateful day, is a vital factor, which ought to be taken into consideration. 32. From the above, it is further clear that there was no chance for any person nor there was any other person in the house, on the fateful day, except A-1, and consequently, it is only A-1 who had a chance to commit any kind of assault on the deceased. 33. No doubt, the basic cause, for committing any kind of assault, either verbal or physical, demanding additional dowry, has already been established. 34. However, it is the specific opinion of P.W.10, the Doctor, who conducted postmortem on the dead body of the deceased, that the deceased died due to head injury, but not because of hanging. Further, though, initially, it was the specific case of A-1 that the deceased was suffering from severe headache and was hospitalized, subsequently, he changed his version, in his examination under Section 313 Cr.P.C., stating that the deceased died due to hanging. Further, though, initially, it was the specific case of A-1 that the deceased was suffering from severe headache and was hospitalized, subsequently, he changed his version, in his examination under Section 313 Cr.P.C., stating that the deceased died due to hanging. This is yet another additional and strong circumstance, firstly, to fix the presence of A-1 alone in the company of the deceased, on the fateful day, and secondly, to show that A-1 had a motive/grievance to commit the assault on the deceased. 35. Furthermore, learned Public Prosecutor, appearing for the respondent-State, relying on the decision of the Supreme Court in USMAN MIAN vs. STATE OF BIHAR1, submits that even from a perusal of the statement of A-1, made during the course of his examination under Section 313 Cr.P.C., it is evident that A-1 stated that he was not present in the house at the time of death of the deceased and further, by the time he came back to the house, he found the deceased to have committed suicide by hanging; that, then, he took her to some private hospital and since the said hospital authorities refused to take up the case, he had taken her to a General Hospital, where she was declared dead and, therefore, he brought the dead body of the deceased back to home. 36. From the very fact that A-1 telephoned to his mother-in-law, P.W.1, and informed that the deceased was suffering from severe headache and was hospitalized, and the statement made by A-1, in his examination under Section 313 Cr.P.C., when all the incriminating material was put to him by the Court below, shows that there is any amount of shift of stance by A-1. 37. As already noticed, only after specifically deposing that, on 08.05.2002 i.e., on the date of death of the deceased, A-1 and the deceased were present in the house, but A-2 and A-3 were not present, P.W.4 was declared hostile. 38. 37. As already noticed, only after specifically deposing that, on 08.05.2002 i.e., on the date of death of the deceased, A-1 and the deceased were present in the house, but A-2 and A-3 were not present, P.W.4 was declared hostile. 38. So, if the events are to be narrated, they go in the following manner: - The marriage of A-1 and the deceased was performed on 14.02.2000; that, initially, there was an agreement as regards the dowry to be given at the time of marriage and the said demand was complied with partially, at the time of marriage, and, on that score, the deceased was being put to harassment at the hands of A-1; that, later on, P.W.1 had given the entire dowry, as was originally agreed to; that, on 08.05.2002, nobody was present in the house except A-1 and the deceased; that it is not the case of the defence that there was anybody else in the house, on the date of the death of the deceased, other than A-1, who telephoned to P.W.1, mother of the deceased, and informed that the deceased was in the hospital because of severe headache; that, eventually, A-1 shifted his stand after closure of evidence on behalf of the prosecution and during the course of his examination, by the Court below, under Section 313 Cr.P.C., stating that he was not present at the house when the deceased committed suicide by hanging and that when he came back to house, he found that the deceased to have committed suicide by hanging; that after conducting postmortem on the dead body of the deceased, P.W.10, -the Doctor, specifically opined that the ligature mark found on the neck of the deceased was post-mortem and the other two injuries were ante-mortem in nature, out of which, the injury No.2 caused on the right frontal region of the forehead was fatal and only because of that injury the deceased died, as such, the theory of the defence was disproved by this very fact. 39. Therefore, the chain of incidences, as stated above, would specifically suggest that it is only A-1, who had chance to commit any kind of assault on the deceased and not anyone else, nor it is the case of the defence that there was chance for anyone else to commit the present brutal assault on the deceased. 39. Therefore, the chain of incidences, as stated above, would specifically suggest that it is only A-1, who had chance to commit any kind of assault on the deceased and not anyone else, nor it is the case of the defence that there was chance for anyone else to commit the present brutal assault on the deceased. Further, the conduct of A-1, at the end of the trial was again altogether different; that he was not present at the house when the deceased committed suicide by hanging, which was ruled out by P.W.10, the Doctor, by stating that the death of the deceased was only because of injury No.2 caused on the right frontal region of the forehead and that the hanging and the resultant presence of ligature mark on the neck of the deceased was only post-mortem, but not ante- mortem. 40. Having regard to the same, we are of the considered view that the Court below had considered all the aspects in right perspective and recorded cogent reasons for convicting A-1. However, taking clue from the evidence of P.W.4, who was declared hostile, to the limited extent, but, which is vital for fixing the presence of A-1 in the association of the deceased, on the date of commission of the offence, we hold that the chain of circumstances is sufficiently complete and strong enough pointing out that A-1 alone was responsible for the death of the deceased. 41. For the foregoing, we find no merit in the present Criminal Appeal and the same is liable to be dismissed. 42. In the result, the Criminal Appeal is dismissed, confirming the judgment, dated 30.11.2004, passed by the IX Additional District and Sessions Judge (Fast Track Court), Guntur, in S.C.No.685 of 2002, convicting A-1 for the offence punishable under Section 302 I.P.C., and sentencing him to suffer imprisonment for life and to pay a fine of Rs.100/-, in default to suffer simple imprisonment for seven days and also convicting for the offence punishable under Section 498- A I.P.C., and sentencing him to suffer rigorous imprisonment for a period of three months and to pay a fine of Rs.100/-, in default to suffer simple imprisonment for seven days.