HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No.105 of 2008 DATE:15.11.2011 BETWEEN: Bodapothula Babu .. Appellant And State of A.P. Rep. by PP Respondent HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No.105 of 2008 JUDGMENT: (Per Hon’ble Sri Justice A.Gopal Reddy) The appellant-sole accused-Bodapothula Babu son of Laxminarsaiah was tried for the oﬀences under Sections 498-A, 201 and 302 IPC by the III Additional Sessions Judge (Fast Tract Court II), Khammam in S.C.No.236 of 2007. Learned Additional Sessions Judge while acquitting the accused for the charges under Sections 498-A and 201 IPC, found him guilty for the oﬀence under Section 302 IPC, convicted him thereunder and sentenced him to undergo imprisonment for life and also to pay ﬁne of Rs.200/- in default simple imprisonment for one month. 2. The graveman of the charge against the accused is that on 15.08.2006 in between 07.00 to 09.00 PM he being the husband of the deceased-Bodapothula Sudha committed murder intentionally causing her death by strangulation with a saree, subjected her to cruelty for the balance amount of dowry of Rs.20,000/- and in the same transaction, he tried to screen the evidence. 3. The prosecution story, as narrated during the course of trial, is as follows: PW1, father of the deceased is native of Gollavaripally of Nellore District and he migrated to Rajiv Gandhi Nagar of Bandarigudem along with his family for eking out their livelihood. He had two daughters and his elder daughter was given in marriage to the accused on 13.08.2001 and agreed to pay Rs.60,000/- as dowry at the time of marriage and initially he paid a sum of Rs.40,000/- and agreed to pay the balance by way of instalments. After the wedlock, both the accused and the deceased resided in the house of PW.1 for some time and thereafter, they lived in Rajiv Gandhi Nagar of Bandarigudem. During the wedlock, they blessed with two sons. The accused and the deceased frequently used to quarrel each other. As their elder son was suﬀering with some ailment, the father of the deceased provided an amount of Rs.20,000/- for his treatment. The accused started harassing the deceased for balance amount of dowry. The relatives also admonished him and paciﬁed the matter. PW1 constructed a new house with the funds provided by the Government and thereby he brought the deceased and accused to his house to live along with them and then also the accused harassed the deceased and thereby they left for some time to Guntur asking the accused and the deceased to live in the newly constructed house and after living some time, he left to his own house. While so, on 15.08.2006 PW-10 informed PW.1 about the death of the deceased at 10.00 PM and on the next day PW.1 reached Bandarugudem and after seeing the dead body, he found some tenderness on the right cheek, on the chest, and on the back of the neck. Immediately, he went to the police station and presented Ex.P.1-report, on the basis of which, PW.11-Sub-Inspector of Police, Manuguru Police Station registered a case in Crime No.138 of 2006 under Section 302 IPC and issued Ex.P.18-FIR. After receiving Ex.P.18-FIR, PW.12 Inspector of Police, Manuguru went to the scene of oﬀence, found the dead body of the deceased, got the dead body photographed with the help of PW.5, and prepared scene of observation report in the presence of PW.6 and another. On requisition, PW.7-Executive Magistrate of Manuguru Mandal conducted inquest over the dead body of the deceased and prepared Ex.P.15 inquest report. PW.12 examined PWs.1 to 5, 9, 10 and others and recorded their statements. After inquest, the dead body was sent for postmortem examination. PW.8, the doctor who conducted postmortem examination over the dead body of the deceased on 17.08.2006 at the Area Hospital, Kothagudem issued Ex.P.16-postmortem report opining that the cause of death was due to asphyxia due to hanging. PW.12 arrested the accused on 17.08.2006 and after completion of investigation, he ﬁled the charge sheet against the accused. 4. On committal, three charges were framed against the accused for the oﬀences under Sections 498-A, 302 and 201 IPC, read over and explained to him for which, he denied the same. 5. In order to substantiate its case, the prosecution examined PWs. 1 to 12, marked 18 documents as Exs.P1 to P-18 and exhibited MO.1. After closer of the prosecution evidence, the accused was examined under Section 313 Cr.P.C by touching the incriminating evidence appearing against him in the evidence of prosecution witnesses and the appellant denied the same by pleading innocence and did not choose to examine any witness on his behalf. 6. PW.1, who is the father of the deceased while reiterating the contents of Ex.P.1 stated that the marriage of his deceased daughter was performed with the accused about ﬁve years prior to the death and he paid a sum of Rs.40,000/- towards dowry prior to marriage. The deceased and the accused lived happily for about a year, after the marriage and they blessed with two sons. One year after the marriage, the accused started harassing the deceased in a drunken state for dowry. Three years after the marriage, the deceased fell in to a well and she was rescued by the neighbours. The deceased used to inform about the harassment to him and also to the neighbours. Neighbours convened a panchayat and advised the accused and the deceased to live amicably. On his constructing a new house with the funds provided by the Government, PW- 1 brought his daughter and the accused to his house to live along with them. They lived with them for some time and four days prior to the death of the deceased, himself and his wife went to Guntur with a hope that the accused and the deceased may live happily in the new house. They spent Rs.20,000/- to the son of the accused and the deceased. PW-10 informed them about the death of the deceased and on the next day they visited the house. Whereas, the evidence of PW.2, who is the neighbour discloses that on hearing the quarrel in the house of the accused, he went to the house of the accused and deceased and found the victim hanging to the ceiling fan with saree and accused sitting on the cot saying that ‘naa bangaram chanipoindi.’ Then, himself and PW.3 removed the victim to take her to the hospital, but they found her dead. PW.3 also stated that on PW.2 calling him, he went to the house of the accused, found the accused and two children in house, and the victim was hanging to a fan with saree and the accused was crying, then himself and PW-2 removed the deceased to take her to the hospital, but they found her dead. 7. The doctor who conducted postmortem examination over the dead body of the deceased was examined as PW.8. He deposed that he issued post mortem certiﬁcate – Ex.P.16 and found the following injuries: 1. Ligature mark seen over anterior aspect of the neck at the level of hyoid hone, extending from right sterno-mastoid up to the left sterno-mastoid with oblique direction upwards over the neck. 2. Contusion of eye balls with conjunctiva haemorrhage. 3. Tongue protruded out and swollen 4. Engorged veins seen over the anterior chest wall. 5. Passed motion with faecal matter over the petty coat The doctor opined that the cause of death was due to asphyxia due to hanging. 8. From the above evidence, the prosecution could be able to establish that the death of the deceased was suicidal. No doubt, the death occurred within seven years of the marriage, but no charge as such has been framed for the oﬀence under Section 304-B IPC, and a charge under Section 302 IPC was framed against the accused and that the accused was tried for the said charge along with the charges under Sections 498-A and 201 IPC. 9. The learned Sessions Judge on appreciation of the oral and documentary evidence brought on record acquitted the accused of the charges under Sections 498-A and 201 IPC against which the prosecution did not prefer any appeal. The evidence of PWs.2 and 3 was in categorical terms that they visited the house of the deceased immediately and found her hanging to a ceiling fan and they removed her to take her to the hospital where the accused and their children were weeping. Further, there is no medical evidence to show that the death of the deceased was homicidal and the evidence of PW-8, the doctor did not support the strangulation. But, the post mortem report shows that the deceased died of hanging. Therefore, it is a clear case of suicidal, but not homicidal to convict the accused for the oﬀence under Section 302 IPC. The learned Sessions Judge fell in error in convicting the accused for the oﬀence under Section 302 IPC as the prosecution miserably failed to establish that the death of the deceased was a homicidal. In the absence of any alternative charge framed under Section 304-B IPC, the accused is entitled for acquittal and accordingly the conviction and sentence passed by the learned Sessions Judge are liable to be set aside. 10. In the result, the Criminal Appeal is allowed and the conviction and sentence imposed by III Additional Sessions Judge (Fast Track Court-II) at Khammam in S.C.No.236 of 2007, dated 30.10.2007 are hereby set aside. The appellant is found not guilty of the charge with which he stood charged and he is acquitted of the same. He shall be set at liberty forthwith, if not required in any other crime. The ﬁne amount, if any, paid by the appellant-accused, shall be refunded to him. ________________ A. GOPAL REDDY, J _______________ R. KANTHA RAO, J Date: 15-11-2011 kvrm/ccm HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No.105 of 2008 (Judgment of the Bench delivered by Hon’ble Sri Justice A.Gopal Reddy) DATE: 15.11.2011