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2008 DIGILAW 149 (AP)

Bitla Gangaram v. State of A. P.

2008-02-22

B.PRAKASH RAO, L.NARASIMHA REDDY

body2008
JUDGMENT: (per Sri LNR,J) The appellant-A1, his father-A2 and mother-A3, were tried by the Court of IV Additional District and Sessions Judge (Fast Track Court), Siddipet in S.C.No.295 of 2005, on three charges. The first charge was that all the accused have subjected Naveena, the wife of A1, to cruelty by demanding additional dowry and thereby, committed an offence punishable under Section 498-A IPC. The second charge was that the appellant committed the murder of his wife Naveena on the intervening night of 17/18.04.2004, by throttling her neck with saree. In the alternative, all the accused were charged with the offence of committing dowry death of the deceased and thereby committed an offence punishable under Section 304-B IPC. Through its judgment, dated 25.01.2006, the trial Court acquitted A2 and A3. The charge under Section 498-A IPC was held not proved against the appellant. However it convicted the appellant, of the offence punishable under Section 302 IPC and sentenced him, to undergo rigorous imprisonment for life. Hence, this appeal. 2. The deceased was married to the appellant about 2 or 3 years prior to April, 2004. The mother of the deceased submitted the complaint-Ex.P8 at 1130 hours on 18.04.2004, stating that they gave about two tulas of gold, 20 tulas of silver and Rs. 20,000/- to the appellant at the time of marriage, apart from some utility articles. She stated that after the marriage, the appellant started harassing and abusing her daughter on several occasions and once she has given a sum of Rs.3,000/-, and again demand was said to have been made for Rs.5,000/- for his employment at Hyderabad. A panchayat was also said to have been held to reconcile the differences on two or three occasions. She is said to have received information that her daughter died and she suspected that the appellant might have killed her daughter by pressing the throat. Crime was registered by the Police and the investigation was taken up. Inquest was conducted through Ex.P6 and thereafter, post mortem vide Ex.P10. Charges as indicated above were framed and all the accused pleaded not guilty. The trial Court found the appellant alone as guilty of committing the offence under Section 302 IPC. 3. Smt A. Gayathri Reddy, learned counsel for the appellant submits that there is neither eyewitness account, nor circumstantial evidence, to prove that the appellant committed the murder of the deceased. The trial Court found the appellant alone as guilty of committing the offence under Section 302 IPC. 3. Smt A. Gayathri Reddy, learned counsel for the appellant submits that there is neither eyewitness account, nor circumstantial evidence, to prove that the appellant committed the murder of the deceased. She contends that the person, who gave Ex.P8, was not available for examination as a witness, due to her death and thereby nothing mentioned in Ex.P8 can be taken into account. She contends that P.W.1, the father of the deceased, has no knowledge about the occurrence and the rest of the witnesses are from the village of P.W.1. She contends that even to suspect the involvement of the appellant in the incident, the prosecution ought to have proved the presence of the appellant in the village at the relevant point of time and that is totally missing. She further contends that the medical evidence is not all accords with the allegations contained in the charge. 4. Learned Public Prosecutor submits that having regard to the disputes between the appellant and the deceased, preceding the occurrence and absence of any explanation from the appellant, the only inference that can be drawn is that he committed the offence. He further submits that the circumstantial evidence provides necessary links to connect the appellant, with the occurrence. 5. P.Ws.1 and 2 are the father and brother, respectively, of the deceased. P.W.3 is an elderly person, who is said to have settled the marriage between the appellant and the deceased. P.W.4 stated that he is acquainted with the deceased as well as her marriage with the appellant, and about the disputes that have arisen between them. P.W.5 was declared hostile. P.W.6 is a panch to the inquest. P.W.7 was declared hostile. P.W.8 is the Mandal Revenue Officer, who conducted the inquest. P.W.9 is the Sub-Inspector, who registered the case on receiving the complaint-Ex.P8. P.W.10 is the Investigating Officer. P.W.11 is the Doctor, who conducted the post mortem of the deceased. 6. Admittedly, there is no direct evidence in this case, against the appellant. The prosecution depended upon circumstantial evidence. It is not in dispute that the appellant was married to the deceased. It was urged that the appellant used to harass the deceased for additional dowry and that because the deceased was not able to satisfy the demands, he has done her to death. 7. The prosecution depended upon circumstantial evidence. It is not in dispute that the appellant was married to the deceased. It was urged that the appellant used to harass the deceased for additional dowry and that because the deceased was not able to satisfy the demands, he has done her to death. 7. To enable the Court to draw an inference about the commission of murder of the deceased by the appellant, two circumstances are required to be proved. The first is that, the appellant and the deceased were living, or seen, together just before the occurrence, and the second is that, in all probability, the appellant alone may have committed the offence. The second circumstance has to derive support from the nature of allegations, on the one hand, and the medical evidence, revealing the cause of death, on the other. Further, the second circumstance referred to above would arise if only the first one is proved. 8. It is rather surprising and curious that the prosecution has not chosen to examine any witness to prove that the appellant was in his village, at a time, when the offence is said to have taken place. P.Ws.1 to 4 and 6 are from Irkodu village i.e., the native place of P.W.1. They cannot be expected to speak about the presence of the appellant in his native village i.e., Pothareddipet village on the date of occurrence. P.W.5, who hails from that village, was declared hostile. P.W.7, who is resident of an altogether different place, was examined as a witness for arrest of the appellant. The incident took place in April and the arrest is said to have taken place in August. Even, this witness was declared hostile. Another surprising feature of the case is that even for inquest, a person from Irkodu, the native place of P.W.1, i.e., P.W.6 was chosen, as though none is available from Pothareddipet village. 9. Apart from there not being any evidence to prove that the appellant was in the village when the incident occurred, there is ample material to suggest that he was a person, habituated to go about the other places, and that hardly, he used to reside in his native village. In his chief-examination, P.W.1 stated as under; "My daughter questioned her husband as to why he is not attending to any work. In his chief-examination, P.W.1 stated as under; "My daughter questioned her husband as to why he is not attending to any work. My daughter and her husband went to city to eke out their livelihood. Again, A1 and his wife returned to my house and continued to stay there on the ground that A1 was unwell. A1 towards his treatment on one occasion went to Vikarabad and did not return for about one month. In order to verify the same, my wife and daughter together went to Vikarabad. As they found A1 was well, again he was brought to my house". 10. From this, it becomes evident that within a short span after the marriage, the appellant was living either at Hyderabad or at Vikarabad or at the house of A1. This shows his conduct and habit. There is no evidence to show that he was in the village as on the date of occurrence. His presence in that village cannot be guessed. 11. Strictly speaking, the second question does not arise for consideration, since there is nothing on record to show that the appellant was in the village on the date of the occurrence. If we examine the evidence in relation to the other circumstances, the doubt, if any, becomes clarified. The allegation against the appellant is that he throttled the neck of the deceased with a saree. Therefore, the medical evidence must correspond with this allegation. The post mortem certificate, marked as Ex.P10, reveals several injuries on different parts of the body. P.W.11, who conducted the post mortem, found the following injuries: "1. Contusion dark coloured 2" in width over front of neck on thyroid cartilage and below extending from below left ear to below right ear. Ante mortem clot present on cut section. 2. Contusion 2"x2 on right side of lower neck with skin 1"x1" peel oway. Ante mortem clot present on cut section. 3. Abrasions six in number on right side of chest each 1 x 1/8" ante mortem clot present. 4. Abrasion on right elbow 1 1/2 "x2" abrasion on left wrist 1'2'. Abrasion on left axilla, skin peeled oway 1"x2". Abrasion on the back 1"x1 1/2". Ante mortem clot present on cut section. 5. White erosions with irregular margins around the wrist and at the lower part of the chest at the lower border of blouse". 12. 4. Abrasion on right elbow 1 1/2 "x2" abrasion on left wrist 1'2'. Abrasion on left axilla, skin peeled oway 1"x2". Abrasion on the back 1"x1 1/2". Ante mortem clot present on cut section. 5. White erosions with irregular margins around the wrist and at the lower part of the chest at the lower border of blouse". 12. From him, it was elicited that the hyoid bone of the deceased was intact. The injuries, which are relatively serious in nature on the other parts of the body, such as hands, legs, armpit part etc., are not at all explained. The possibility of such injuries being inflicted, if any one had just throttled the neck of the deceased, is almost bleak. Therefore, the very basis of the charge is slippery and is not supported by the medical evidence. Under these circumstances, it is not at all safe to convict the appellant. 13. We, accordingly, allow the appeal, and the conviction and sentence recorded in S.C.No.295 of 2005, on the file of the IV Additional District and Sessions Judge (FTC) Siddipet, dated 25.01.2006, against the appellant are set aside. He shall be set at liberty, forthwith, unless his presence is needed in any other case.