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2009 DIGILAW 606 (AP)

Nimmaraboina Gangaiah v. State of Andhra Pradesh

2009-09-02

D.S.R.VERMA, R.KANTHA RAO

body2009
R. KANTHA RAO, J :-Heard both sides. 2. This appeal is directed against the judgment dated 1.12.2006 passed by the II Additional Sessions Judge, Suryapet, Nalgonda District in Sessions Case No.600 of 2005, whereby and where-under the first appellant (accused No.1) was convicted for the offences punishable under Sections 498-A and 302 IPC and sentenced to undergo rigorous imprisonment for a period of on1 year and to pay a fine of Rs.1,000/-, in default to undergo rigorous imprisonment for a period of one month for the offence under Section 498-A, IPC; and further sentenced to undergo 'life imprisonment' and to pay a fine of Rs.l,000/-, in default to undergo rigorous imprisonment for a period of one month for the offence under Section 302 IPC; the second appellant (accused No.2) was convicted for the offences punishable under Sections 498-A and 324 IPC and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.l,000/-, in default to undergo rigorous imprisonment for a period of one month for the offence under Section 498-A, IPC; and further sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,000/-, in default to undergo rigorous imprisonment for a period of one month for the offence under Section 324 IPC; the appellants 3 and 4 (accused 3 and 4) were convicted for the offence punishable under Section 498-A, IPC and sentenced to undergo rigorous imprisonment for a period of one year each and to pay a fine of Rs.1,000/- each, in default to suffer simple imprisonment for a period of one month each. Challenging the said order of conviction and sentences, accused 1 to 4 have preferred the present appeal. 3. The brief facts necessary for considering the appeal, according to the prosecution, may be stated as follows: The deceased Nimmaraboina Kalamma was the daughter of PWs.1 and 2. She was given in marriage to accused No.1, who is the son of accused 2 and 3. The marriage was performed in the year 2005. At the time of marriage, PWs.1 and 2 gave an amount of Rs.80,000/- as dowry to accused No.1. However, since one month after the marriage, the appellants (accused1to4) started dell1anding additional dowry of an amount of Rs.50,000/- for the purpose of purchasing an auto for accused No.1. The marriage was performed in the year 2005. At the time of marriage, PWs.1 and 2 gave an amount of Rs.80,000/- as dowry to accused No.1. However, since one month after the marriage, the appellants (accused1to4) started dell1anding additional dowry of an amount of Rs.50,000/- for the purpose of purchasing an auto for accused No.1. Whenever PW1, the father of the deceased, was informed by the deceased about the harassment meted out to her by the accused, he used to go to the house of accused, which is situate in a nearby village and try to convince accused No.1 and his parents. Ultimately, on 17.9.2005 in the afternoon, some people from the village of the accused came and informed PW1 that the deceased died at the matrimonial home. PWs.1 and 2, their close relatives along with some others went to the house of accused No.1 and found the doors of the house of accused No.1 were locked. Thereafter, they went to the house of accused 2 and 3 and there they found the body of the deceased Kalamma lying on the ground. They also noticed injuries on the neck of the deceased. PW4, second daughter of PWs.1 and 2, was also given in marriage in the village of the• accused and she informed PWs.1 and 2 and the other relatives that all the accused killed the deceased Kalamma in the house of accused No.1 and thereafter shifted the body of the deceased to the house of accused No.2 and laid it on the ground. When PWs.1 and 2 questioned as to the cause of death of the deceased, the accused beat the son of PW1 as well as one Vadde Nagaiah after throwing chilly-powder into their eyes. Subsequently, accused No.2 also bite on the cheek of PW8 and caused a bleeding injury. On a report lodged by PWI in Mothey Police Station with PW 18, the Sub Inspector of Police, a case in Crime No.61 of 2005 came to be registered against the accused for the offences punishable under Sections 498-A and 302 IPC. Initially, the investigation was conducted by PW 18 and subsequently, it was taken over by PW19, Circle Inspector of Police, Suryapet. In the course of investigation, inquest over the body of the deceased was held and thereafter, it was dispatched to the Government Area Hospital, Suryapet for the purpose of conducting post-mortem examination. Initially, the investigation was conducted by PW 18 and subsequently, it was taken over by PW19, Circle Inspector of Police, Suryapet. In the course of investigation, inquest over the body of the deceased was held and thereafter, it was dispatched to the Government Area Hospital, Suryapet for the purpose of conducting post-mortem examination. PW17, Medical Officer in the said hospital, on the requisition of the Mandal Revenue Officer, Mothey, conducted post-mortem examination over the body of deceased and issued Ex.P11, post-mortem examination report, incorporating the injuries found by him on the body of the deceased and expressing his opinion that the cause of death of the deceased was due to asphyxia by throttling and smothering. After completing the investigation, the Inspector of Police filed a charge-sheet against the accused. Before the learned Additional Sessions Judge, the prosecution, in order to establish the guilt of the accused, examined PWs.1 to 19, marked Exs.P1 to P13 and MOL The accused examined DWs.1 and 2 on their behalf and marked Exs.D1 to D3. The learned Additional Sessions Judge, on a consideration of the entire evidence on record, convicted the accused and sentenced them to punishment, as mentioned above. 4. We have heard Sri C. Padmanabha Reddy, learned Senior Counsel, representing Sri C. Praveen Kumar, learned Counsel appearing for the appellants and the learned Public Prosecutor appearing for the respondent-State. 5. The learned Senior Counsel for the appellants would submit that the medical evidence in this case is not conclusive on the aspect that the death of the deceased is homicidal, that the evidence on record does not indicate commission of offence punishable under Section 302 IPC against accused No.1 and also that the evidence on record does not warrant any conviction against accused 1 to 4 for the remaining offences and thus he seeks to set aside the conviction and sentences passed against the appellants. 6. On the other hand, the learned Public Prosecutor would submit that in this case, the prosecution has proved its case by establishing the circumstances relied upon by it that the death of the deceased was homicidal and that all the circumstances clearly indicate that accused No.1 committed the murder of deceased and that the learned trial Court is justified in convicting accused No.1 for the said offence and also accused 1 to 4 for the remaining offences. 7. 7. Now, the point for determination in this appeal is - whether the order of conviction and sentences passed by the learned trial Court against the appellants can be sustained? 8. Point : In the course of trial before the learned Additional Sessions Judge, PWs.5 to 7, 10, 11 and 13 to 15 did not support the prosecution version and they were treated hostile by the prosecution. The learned trial Court rested its decision mainly on the evidence of PWs.1 and 2, who are the parents of the deceased; PW4 Seethamma, daughter of PWs.1 and 2, who is given in marriage in the village of the accused; PW8 V. Nagaiah, who is an injured witness and also on the evidence of PW 17, the autopsy surgeon, whose evidence is to the effect that the death of the deceased was on account of asphyxia due to smothering. 9. PWs.1 and 2 have categorically spoken to the fact of their paying an amount of Rs.80,000/- as dowry and subsequently accused No.1 demanding additional dowry of Rs.50,000/- and also beating the deceased. The evidence of PWI further discloses that he personally went to the house of accused No.1 and convinced that he would arrange the money and not to harass the deceased. PWs.1 and 2 have also spoken to the fact of rushing to the village of the accused on knowing about the death of the deceased, finding the doors of the house of accused No.1 locked and thereafter going to the house of accused 2 to 4, noticing the body of the deceased lying on the ground there with injuries on the neck. 10. PW 4, who is the daughter of PWs.1 and 2, apart from speaking about the harassment meted out by accused No.1 to the deceased with a demand for additional dowry, stated in her evidence that on a particular day, the deceased went to the house of PWs.1 and 2 with a view to bring some amount as demanded by accused No.1. But, the amount was not adjusted by PWs.1 and 2 and the deceased came back to the village. But, the amount was not adjusted by PWs.1 and 2 and the deceased came back to the village. It is also her version that on the date of death of the deceased, when she was going to the field at about 1.30 p.m., she saw accused 1 to 4 in the house of accused No.1 where a quarrel was going on and when she questioned about the quarrel between the deceased and the accused, the accused did not allow her and thereupon she went to the field. Her evidence further discloses that on the same day at about 2 p.m., one Venkanna came to the well while she was there and informed her that the deceased was killed by accused No.1 and thereafter she went to the house of accused 2 and 3 and found the body of the deceased lying on the ground with injuries on the neck. 11. PW8, who followed PWs.1 and 2 and others to the village of the accused after receiving information about the death of the deceased, deposed that all of them went to the village of the accused in an auto and found the doors of the house of accused No.1 locked, thereafter they went to the house of accused 2 and 3 and found the body of the deceased lying on the ground and that they also found injuries on the neck of the deceased. 12. PW17 - the doctor who conducted post-mortem examination over the body of the deceased noticed the following injuries; (1) Two lenir abrasions 'on right side lower jaw and one on upper part of right leg side measuring 1cm. in length and over 6 cm area and they are blunt and ante mortem; (2) One abrasion on the left side upper part of neck measuring 1x12 cm. blunt ante mortem; (3) A contusion on the left side lower lip and upper lip, 3 x 3 cm., blunt, ante mortem. According to the doctor, who conducted post-mortem examination over the body of deceased, all the injuries were ante mortem in nature. The opinion of the doctor as to the cause of death of the deceased was - "due to asphyxia and due to throttling and smothering." 13. According to the doctor, who conducted post-mortem examination over the body of deceased, all the injuries were ante mortem in nature. The opinion of the doctor as to the cause of death of the deceased was - "due to asphyxia and due to throttling and smothering." 13. The defence version appears from the tenor of cross-examination of the witnesses as well as the version of DWs.1 and 2, who were examined on behalf of the accused, is that the deceased committed suicide by hanging. But, the evidence of the witnesses, who saw the body of the deceased; the findings recorded at the time of inquest and the findings of the doctor, who conducted post-mortem examination over the body of deceased, do not support the defence version. There were injuries on the neck of the deceased, which was not only found by the doctor (PWI7), who conducted post-mortem examination over the body of deceased but also as per the witnesses, who saw the body of the deceased at the house of accused 2 and 3. If the death was by hanging, there must be ligature mark on the neck of the deceased. The absence of any ligature mark on the neck of the deceased rules out the possibility of 'hanging' and mainly basing on the evidence of PW17, we have no manner of doubt whatsoever that the deceased died a homicidal death in her matrimonial home. The deceased met with the unfortunate death at the age of 18 years. Admittedly, she was living with accused No.1 in the house of accused No.1. The defence theory is not specific on the aspect as to where the deceased was actually found hanging. According to the evidence available on record, the body of the deceased was noticed lying on the ground in front of the house of accused 2 and 3. In any event, the whereabouts of the deceased and as to during the course of which transaction, the deceased received injuries must be within the exclusive knowledge of accused No.1. It makes no difference whether the body of the deceased was found at the house of accused No.1 or at the house of accused 2 and 3. In any event, the whereabouts of the deceased and as to during the course of which transaction, the deceased received injuries must be within the exclusive knowledge of accused No.1. It makes no difference whether the body of the deceased was found at the house of accused No.1 or at the house of accused 2 and 3. According to the version of the parents and sister of the deceased, the body of the deceased was found originally at the house of accused No.1 and subsequently it was shifted to the house of accused 2 and 3. 14. PWs.9 and 11, who were examined by the prosecution to prove the extra judicial confession supposed to have made by accused No.1, did not support the said aspect. However, PW9 deposed that accused No.3 came to their house and requested him to come and see the condition of her daughter-in-law (deceased) and thereafter he went to their house and tested the pulse and heart-beat of the deceased and found that she died and he informed the same to accused No.3 and other inmates. 15. Whereas, PW10, who, in fact, was examined to speak about the extrajudicial confession, however, turned hostile so far as that aspect is concerned. But, it is worth to notice that she categorically deposed that on the date of incident at about 12 noon or 1.30 p.m., while she was sleeping at their house, Jayamma, the daughter of accused No.3, came to her house by weeping and thereafter, she rushed to the house of accused No.1 and by the time she went to the house of accused No.1, the deceased was lying on a cot and she was taken to the hospital. According to this witness, after the deceased was shifted to the hospital she was found dead. (emphasis supplied) 16. From the above, the prosecution could be able to establish by positive evidence of PW11, though treated hostile by the prosecution, that the dead body was originally found lying on the cot at the house of accused No.1, which means that immediately preceding the death of the deceased, she was in the company of accused No.1. This fact was deposed by PW11, which remained unrebutted, though he was declared as hostile by the prosecution on the aspect of extra judicial confession. This fact was deposed by PW11, which remained unrebutted, though he was declared as hostile by the prosecution on the aspect of extra judicial confession. There was no cross-examination by the defence to the extent of this part of evidence on the aspect that she found the body of deceased at the house of accused No.1. 17. In this context, we would like to refer to the decision of the apex Court m Trimukh Maroti Kirkan v. State of Maharashtra, 2007 Cri. LJ 20. We deem it extract the relevant portion laying down the principles governing the field in relation to deaths of brides in matrimonial home for which there are no direct witnesses. "(a) In a case based on circumstantial evidence where no eye-witness account is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. This view has been taken In a catena of decision of this Court. (b) Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes placed in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. (c) The demand for dowry or money from the parents of the bride has shown a phenomenal increase in last few years. Cases are frequently coming before the Courts, where the husband or in-laws have gone to the extent of killing the bride if the demand is not met. These crimes are generally committed in complete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence. No member of the family, even if he is a witness of the crime, would come forward to depose against another family member. These crimes are generally committed in complete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence. No member of the family, even if he is a witness of the crime, would come forward to depose against another family member. The neighbours, whose evidence may be of some assistance, are generally reluctant to depose in Court as they want to keep aloof and do not want to antagonize a neighbourhood family. The parents of other family members of the bride being away from the scene of commission of crime are not in a position to give direct evidence which may inculpate the real accused except regarding the demand of money or dowry and harassment caused to be bride. But, it does not mean that a crime committed in secrecy or inside the house should go unpunished. (d) If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. ... ... ... ... (e) Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation." 18. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation." 18. It is to be noticed that in the light of the ratio laid down by the apex Court in the above referred judgment, it is for the accused in case of this nature where the offence is committed within the four walls, to offer plausible explanation as to what had actually happened to the deceased. 19. This Court therefore has to examine as to whether any reasonable and probable explanation had been offered by at least accused No.1, as to what had happened to the deceased while she was in his company, as •spoken to by PW11. This is more relevant because soon after accused No.1 came and informed that his wife committed suicide by hanging, PW11, accused 2 to 4 and other village people rushed to the house of accused No.1 and got removed the dead body from the pole, which shows that the deceased was in the company of accused No.1 and the deceased was found dead, as spoken to by PW9. So, the question is -- what is the explanation of the accused in this regard? 20. In this regard, it is necessary for us to refer to the statement made by accused No.1 during the course of his examination under Section 313 Cr.P.C., and the version of DWs.1 and 2. During the course of examination under Section 313 Cr.P.C., accused No.1 sought to explain that the deceased committed suicide by hanging, which according to the reasons assigned by us hereinbefore, found to be false. The statement in this regard made by accused No.1 in Section 313 CLP.C., examination makes it abundantly more clear that the deceased was very much in his company and the explanation as regards the alleged committal of suicide by the deceased was found to be false. Thus, the false explanation offered by accused No.1 furnishes additional link to the circumstances established by the prosecution in proving the guilt of accused No.1. 21. Thus, the false explanation offered by accused No.1 furnishes additional link to the circumstances established by the prosecution in proving the guilt of accused No.1. 21. Turning to the facts of the case on hand, as stated by us in the foregoing paragraphs, the prosecution has established that the death of the deceased is homicidal and prior to her death, she was harassed by accused No.1 in connection with the demand of additional dowry. Initially, the body of the deceased was found lying on a cot in the house of accused No.1 and subsequently, it was shifted to the house of accused 2 and 3. 22. Therefore, in our considered view, that the prosecution could be able to establish all the relevant circumstances relied upon by it and the proved circumstances are conclusive in nature, they are consistent only with the hypothesis of the guilt of accused No.1 and there is no scope for any hypothesis except that accused No.1 is the perpetrator of the crime. Therefore, the trial Court has rightly arrived at the conclusion that the prosecution had proved the guilt of accused No.1 for the offence under Section 302 IPC beyond any shadow of doubt by establishing all the relevant circumstances. We may also state that from the evidence of PWs.1, 2 and 4, the prosecution has clinchingly established that accused No.1 had subjected the deceased to cruelty with a demand to get additional dowry and the trial Court is also perfectly justified in convicting accused No.1 for the offence under Section 498-A, IPC also. 23. The evidence of PWs.1, 2 and 8 indicates that when they questioned accused 2 and 3 as to the cause of death of the deceased, there ensued a quarrel and in the course of the said quarrel, accused No.2 bit on the cheek of PW8. PW8 is an injured witness and his testimony is corroborated by the evidence of the doctor PWI7, who examined him and issued Ex.P-12, wound certificate. Therefore, the conviction recorded by the trial Court against accused No.2 for the offence under Section 324 IPC is proper. 24. PW8 is an injured witness and his testimony is corroborated by the evidence of the doctor PWI7, who examined him and issued Ex.P-12, wound certificate. Therefore, the conviction recorded by the trial Court against accused No.2 for the offence under Section 324 IPC is proper. 24. However, merely because accused 2 and 3 are the parents and accused No.4 is the brother of accused No.1, there being every scope for roping them in this case by the prosecution party while under the grief caused to them on account of the murder of the deceased committed by accused No.1 and there also being no reliable evidence against them regarding any such harassment or maltreatment caused to or subjecting the deceased to cruelty by them and more particularly, in view of the fact that accused No.1 and the deceased were residing separately, we are of the view that the conviction and sentence passed by the trial Court against accused 2 to 4 for the offence under Section 498-A, IPC cannot be sustained and is liable to be set aside. 25. In the result, the appeal is partly allowed and the conviction and sentences passed by the trial Court against accused No.1 for the offences under Sections 302 and 498-A, IPC are confirmed. The conviction recorded by the trial Court against accused No.2 for the offence under Section 324 IPC is confirmed and since we find that the sentence passed against him for the said offence being severe, we modify the same to that of fine of Rs.1,000/- (Rupees one thousand only), in default to undergo simple imprisonment for one month. The conviction and sentence passed by the trial Court against accused 2 to 4 for the offence under Section 498-A, IPC is set aside and they are acquitted of the said offence. The fine amount paid by them under this head shall be refunded. The appeal is partly allowed.