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2008 DIGILAW 842 (AP)

Hymad Pasha v. State of A. P.

2008-09-29

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

body2008
JUDGMENT (D.S.R. Varma, J,) Heard Smt. Shanthi Neelam, learned Counsel appearing for the appellant-sole accused and the learned Public Prosecutor appearing for respondent-State. 2. Sole accused before the Sessions Judge, Adilabad, having been convicted for the offences punishable under Sections 498-A and 302 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs. 1,0001- in default to suffer rigorous imprisonment for two months for the offences under Section 302lPC and also sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs. 5001-, in default to seller rigorous imprisonment for one month for the offence under Section 498-A, IPC filed the present criminal appeal. 3. The case of prosecution is that on 13-4-2003 at about 12.30 p.m., one Abdul Raheem (P.W. 13), the father of one Rayeesa Begum (hereinafter referred to as 'the deceased'), went to Bhainsa town police station and lodged a complaint to the elect that on 17-4-2000 he performed the marriage of his daughter Rayeesa Begum with the accused by giving Rs.15,000/-, some gold ornaments and other household articles; that subsequently, about 15 days thereafter, the accused started harassing the deceased for additional dowry; that in spite of the conciliation made through elders, the accused did not change his attitude; that on one day, when there was a demand from the accused, the deceased went to P.W. 13, who is her father, and brought Rs. 3,0001-; that similarly, on two occasions the same type of demand was made by the accused and the same was satisfied and ultimately, when there was demand for Rs. 10,0001- from the accused, the same could not be fulfilled because of their inability; that on 13-4-2003, in the morning, the sister-in-law of P.W. 13 informed him over telephone about the death of deceased; that thereupon, P.W. 13 and his family members went to Bhainsa and saw his daughter dead and they expressed a doubt that she might have been killed by the accused since she did not bring the dowry amount, as demanded; that a case in Crime No. 27 of 2003 for the offence punishable under Section 302 IPC was registered; that PW. 15(MRO) visited the scene of offence and held inquest over the dead body of deceased; that P.W. 12 along with one Dr. S. Rajeshwar Rao (LW. 15(MRO) visited the scene of offence and held inquest over the dead body of deceased; that P.W. 12 along with one Dr. S. Rajeshwar Rao (LW. 21) conducted post-mortem examination over the dead body of deceased and opined that the death was due to asphyxia due to strangulation; and that therefore, the conclusion has been arrived at that the accused-husband alone was responsible for the death of deceased and also demand of additional dowry. Therefore, the charge-sheet was filed under Sections 498-A and 302 IPC. 4. The trial Court framed charges under Sections 498-A and 302 IPC., against the accused and the same were read over and explained to him, who pleaded not guilty and claimed to be tried. 5. In order to substantiate its case, the prosecution has examined P.Ws. 1 to 17 and got marked Exs. P-1toP-14. M.a. 1 towel was also exhibited. 6. The trial Court, after examination of the evidence on record, both oral and documentary, had recorded a finding that the accused alone was responsible for the death of his deceased wife and was also demanding for further dowry, and accordingly convicted and sentenced him, as stated above. 7. Challenging the said conviction and sentence, the accused has preferred the present criminal appeal. 8. The learned counsel appearing for the appellant-accused submitted that the learned Sessions Judge erred in convicting the appellant on the basis of interested witnesses; that the learned Judge ought to have seen that there is no direct evidence to prove the guilt of the appellant; that the learned Judge ought to have seen that there was no worthwhile case or complaint against the appellant with regard to the harassment and that the learned Judge ought not to have convicted the appellant based on assumption and presumptions. 9. On the other hand, the learned Additional Public Prosecutor supported the impugned judgment of the trial Court, submitting that the trial Court, after elaborate consideration of the evidence on record, both oral and documentary, had rightly convicted and sentenced the accused and that there are no grounds to interfere with the impugned judgment of the trial Court. 10. Now, the point that arises for consideration in this criminal appeal is as to whether the death of deceased was committed by the accused and the finding recorded to that effect by the trial Court is proper? 11. 10. Now, the point that arises for consideration in this criminal appeal is as to whether the death of deceased was committed by the accused and the finding recorded to that effect by the trial Court is proper? 11. Point:- First, it is essential for better appreciation of the case to record the contents of Ex. P-1 0, report given by P.W. 13, father of deceased, to the Police, Bhainsa town. P.W. 13 stated in the said report that he has five daughters and two sons; that on 17-4-2000 he had performed the marriage of his first daughter Rayeesa Begum (deceased) with the accused; that at that point of time he gave dowry of Rs. 15,000/-, onetola gold and other costly household articles; that 15 days after the marriage, the accused started beating and abusing the deceased; that the intervention of village elders also did not mend the accused; that on one occasion, when the accused beat the deceased demanding a sum of Rs. 3,000/-, the same was fulfilled by him; that thereafter, again, the accused beat the deceased and sent her to his house to bring some more amount to get release his sister, who was involved in a dowry case; that again, he gave Rs. 3,000/- to her and sent her back to her husband; that, in spite of it, the accused used to frequently beat the deceased for bringing the additional dowry; that again, on other occasion, demand of Rs. 3,000/- was made; that he was not able to pay the said amount and he would arrange after some time; that subsequently, he received information by phone about the death of his daughter; that all of them went to the place of his daughter and found her body and also found injury marks on the neck and that therefore, suspected involvement of the accused in the death of deceased. 12. Coming to the evidence of P.W. 1, brother of deceased, he stated that the accused is his brother-in-law and husband of the deceased. He also stated about the aspects off request demands of dowry by the accused, as spoken to by P.W. 13. Of course, there is a change in the amounts mentioned by P.W. 1 and the amounts mentioned by P.W. 13. He also stated about the aspects off request demands of dowry by the accused, as spoken to by P.W. 13. Of course, there is a change in the amounts mentioned by P.W. 1 and the amounts mentioned by P.W. 13. He further stated that when they were informed about the death of deceased, they went to the house of deceased and saw his sister dead with some marks on the neck and they were informed by the neighbours that the accused throttled the neck of the deceased by some cloth like dasti and caused her death. In the cross-examination, except regarding the factum of demanding of dowry and the reiteration in that context, nothing else could be elicited in order to fix the accused to the offence under Section 302 IPC. 13. P.W. 2 stated that the deceased was his niece; that the marriage of deceased was performed with the accused; that he was in the knowledge of the amount of dowry given to the accused at the time of marriage and subsequent demands made by the accused through the deceased; that she received a phone call from the accused to the effect that the deceased died in his house; that immediately, he rushed to the house of deceased at about 11.30 a.m., and that he noticed nail marks on the throat. But, in the cross-examination, he admitted that he did not disclose the fact that this was the fact that the accused informed him about the death of deceased. 14. P.W. 3, who was elder brother of accused, did not support the case of prosecution and he was declared as hostile. Therefore, his evidence is of not much helpful to the prosecution, though there was a bleak statement that the accused was in the house on the date of offence. 15. P.W. 4, mother of deceased, also stated in tune with the evidence of the other witnesses insofar as the demand of dowry, of course, here and there, there was slight variation in the quantum allegedly demanded by the accused. 16. P.W. 5, a neighbor of accused, also was declared as hostile, Therefore, his evidence also is not useful to the case of prosecution. 17. P.W. 6, neighbor of deceased; P.W. 7, who is supposed to speak about the extra judicial confession of the accused; P.Ws. 16. P.W. 5, a neighbor of accused, also was declared as hostile, Therefore, his evidence also is not useful to the case of prosecution. 17. P.W. 6, neighbor of deceased; P.W. 7, who is supposed to speak about the extra judicial confession of the accused; P.Ws. 8 and 9, who are panch witnesses to the inquest over the dead body of deceased; and P.W. 10, who is a panch witness to confession of accused and seizure of towel (M.O.1) used for the offence, did not support of case of prosecution and they were declared as hostile. 18. P.W. 11, who is a panch witness to confession of accused, stated that the accused disclosed that he was responsible for the death of deceased and he had also shown the towel cum dasti by saying that he committed the offence with that towel; that M.a. 1 is the said towel and that 1he same was seized by the Police. 19. P.W. 12 is the doctor, who conducted autopsy over the dead body of deceased, stated about the injuries found on the body of the deceased thus: (i) Ligature mark present around the neck completely encircling the neck present over the level of middle of thyroid cartilage runniny transversely measuring 12" length and '/," width ante mortem injury; (ii) 3 abrasions 14" x '/;' over the right side of neck - sharp in nature ante mortem; (iii) Abrasion 4" x 14" over right fore arm sharp, ante mortem in nature; (iv) Fracture of thyroid cartilage right horn - caused by blunt weapon - ante mortem injury; On cut section: injury Nos. 1, 2, 3 and 4 and their underlying tissues showed bruising and chemises. He opined that the death of deceased was asphyxia due to strangulation. 20. P.W, 14, who is the elder of Kalvakota village, also stated about the marriage of the deceased with the accused; that he is elder for the said marriage and also a signatory in the book as a witness. He also stated about the amounts given to the accused by the father of deceased (PW. 13). 21. P.W. 15 is the then Mandai Revenue Officer, Bhainsa, who held inquest over the dead body of deceased under Ex. P-11 , inquest report. 22. P.W. 16 is the then Sub Inspector of Police, Bhainsa Town and P.W. 17isthethen Circle Inspector of Police, Bhainsa, are the Investigating Officers. 23. 13). 21. P.W. 15 is the then Mandai Revenue Officer, Bhainsa, who held inquest over the dead body of deceased under Ex. P-11 , inquest report. 22. P.W. 16 is the then Sub Inspector of Police, Bhainsa Town and P.W. 17isthethen Circle Inspector of Police, Bhainsa, are the Investigating Officers. 23. From the above, except the evidence of P.Ws. 1,2,4,12 and 13, there is no other witness, who could speak about the exact cause of death of deceased, except the opinion of the doctor (P. W. 12) that the death was due to strangulation by the towel (M.O.1). Though injury marks were found on the neck of deceased, no attempt was made by the Investigating Agency as to whether there were any corresponding semblances either on the body of the accused or in the nails. We are unable to comprehend as to why the investigation could not take place in that direction. However, it is not our intention to point out each and every flaw of the investigation in order to record and order of acquittal. On the contrary, we are of the considered view that irrespective of the other piece of evidence, there must be some strong circumstances on record in order to connect the accused with the offence, particularly in a case in the present nature because the entire case of prosecution rests upon the circumstantial evidence 24. Not even a single witness spoke about the presence of the accused in the house along with his wife on the fateful night. Therefore, the exclusive presence of the accused in his house along with his deceased wife is not established. Unless that circumstance is established, it is difficult for this Court to concur with the view taken by the trial Court. There might be different occasions and different reasons for the husband to be away from the house. Therefore, it is absolutely essential for the prosecution to establish, at least the exclusive presence of the accused at the time of the offence either during daytime or nighttime, as the case may be, with the deceased. When the deceased was not found in the company of the accused, in any manner, nor there is any evidence in that regard, it is difficult to say that the accused was present in the house on that day. When the deceased was not found in the company of the accused, in any manner, nor there is any evidence in that regard, it is difficult to say that the accused was present in the house on that day. There cannot be any scope for presumption in such cases and any such presumption, if drawn, would be absolutely unsafe to any person and improper. Therefore, there is a scope for contra inference that it is not only the accused but also somebody else could have access to the house of accused. 25. The aspect of 'motive' is not very relevant in this case. Though, it appears, the case of prosecution that since the deceased was not able to bring money she was done to death, but the prosecution was successful in establishing the extent of demand of additional dowry because there is any amount of consistency by all the witnesses, including the independent witnesses like PW 12. As per the evidence of the witnesses, it appears that the accused demanded on more than couple of occasions, not less than Rs. 3,000/- and the same was fulfilled by P.W. 13, father of deceased, and ultimately, when his further demands were not able to meet, that by itself cannot be inferred as a ground to eliminate the deceased 26. Therefore, we are of the view that the prosecution had established the guilt of accused for the offence under Section 498-A, IPC only but not the guilt of accused for the offence under Section 3021PC. 27. Therefore, in view of the foregoing discussion and in view of our reasoning given above, the conviction recorded by the trial Court against the accused for the offence under Section 3021 PC and sentencing him to undergo imprisonment for life is liable to be set aside and accordingly, set aside; and the conviction recorded by the trial Court against the accused for the offence under Section 498-A, IPC and the sentence to undergo imprisonment is confirmed. 28. In the result. 28. In the result. the criminal appeal, filed by the appellant-sole accused, is allowed in part, as under: (i) The impugned judgment, dated 16-02-2006, in Sessions Case No. 128 of 2004, passed by the Sessions Judge, Adilabad, Adilabad district against the appellant-sole accused insofar as the offence under Section 302 IPC and the conviction and sentence to undergo imprisonment for life and to pay a fine of Rs.1,000/- (Rupees one thousand only), in default to suffer rigorous imprisonment for two months, is set aside. (ii) The conviction recorded by the trial Court against the appellant-accused for the offence under Section 498-A, IPC and sentencing him to undergo rigorous imprisonment for three years and to pay a fine of Rs 500/- (Rupees five hundred only), in default to suffer rigorous imprisonment for one month, is confirmed. (iii) It is made clear that the sentence of imprisonment already undergone by the appellant-accused during investigation, trial and after conviction shall be given set off. (iv) The appellant-accused shall be released forthwith, if not required in any other case, including the present criminal appeal. (v) The amount offense, if any, paid by the appellant-accused for the offence under Section 302 IPC shall be refunded to him.