* THE HON'BLE SRI JUSTICE K.C. BHANU AND THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO + CRIMINAL APPEAL No.802 of 2007. %21.12.2010. # Goddegudem Vadenna ….Appellant Vs. $ State of A.P. rep. By Public Prosecutor, High Court of A.P. Hyderabad. ….Respondent !Counsel for the Appellant: Sri O.Kailashnath Reddy ^Counsel for the Respondent: Public Prosecutor, High Court of Andhra Pradesh. <Gist : >Head Note: ? Cases referred: 1) AIR 1955 SC 807 2) AIR 1984 SC 1622 3) (2004) 11 Supreme Court Cases 282 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE TWENTY FIRST DAY OF DECEMBER TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU AND THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CRIMINAL APPEAL No.802 of 2007 Between: Goddegudem Vadenna ... APPELLANT/A.1 AND The State of Andhra Pradesh ....RESPONDENT The Court made the following: THE HON'BLE SRI JUSTICE K.C. BHANU AND THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CRIMINAL APPEAL No.802 of 2007 JUDGMENT: (Per Hon'ble Sri Justice K.C.Bhanu) This Criminal Appeal, under section 374(2) of the Code of Criminal Procedure, 1973 (for short, "Cr.P.C."), is directed against the judgment, dated 12.06.2007, in Sessions Case No.496 of 2004 on the file of IV Additional District & Sessions Judge (Fast Track Court), Mahabubnagar, whereunder and whereby the appellant/A.1 was convicted for the offences punishable under Sections 498A and 302 of the Indian Penal Code, 1860 (for short, ‘I.P.C.’) and sentenced to undergo imprisonment for a period of three years and to pay fine of Rs.500/- in default to suffer simple imprisonment for one month for the offence punishable under Section 498A I.P.C. and sentenced to undergo life imprisonment and to pay fine of Rs.1000/-, in default to undergo simple imprisonment for three months for the offence punishable under Section 302 I.P.C. 2. The brief facts that are necessary for disposal of the prosecution case may be stated as follows: On 07.05.2003 at about 12:00 Noon, P.W.1, who is the father of Smt Chennamma (herein after referred to as ‘the deceased’) lodged a complaint at Koilkonda Police Station, stating that he has two daughters and two sons, that the elder daughter was given marriage to A.1 about one year back. At the time of marriage, P.W.1 presented 3 tulas of gold, 50 tulas of silver and Rs.15,000/- cash along with other household articles as dowry to A.1. About four months, the deceased and A.1 lived happily and thereafter, A.1 started harassing the deceased for additional dowry. A.2 is mother and A.3 is sister of A.1 respectively. A.2 and A.3 harassed the deceased physically and mentally and sent to her parents house, that a panchayat was held and elders advised A.1 not to harass the deceased and sent the deceased to the house of accused in future; that on 07.05.2003 morning one of the residents of Koilkonda Village informed P.W.1 that on the intervening night of 6/7-5-2003 at 2:00 A.M., he heard some galata from the house of A.1 and his daughter was throttled to death. P.W.1 along with other family members went to A.1’s house and found his daughter dead with injuries over the neck. P.W.1 alleged that the deceased was murdered by A.1, A.2 and A.3 for additional dowry. Basing on the report given by P.W.1 a case in Crime No.37 of 2003 for the offence punishable under Section 304 B I.P.C. was registered against A.1 to A.3. Later, the scene of offence was got photographed by Investigating Officer and the dead body was sent to post mortem examination to District Hospital, Mahabubnagar after conducting the formalities of the inquest. The doctor, who conducted post mortem examination opined that the deceased died due to throttling that lead to asphyxia and shock. Hence, the Section of law was altered into Sections 302 and 498A I.P.C., and after receipt of all relevant documents and completion of investigation, police laid charge sheet against A.1 to A.3 3. The trial Court framed the following charges against the accused: “Firstly: That you A.1 to A.3 prior to 6th day of May, 2003 at Koilkonda Village you A.1 being the husband you A.2 is the mother-in-law you A.3 is the sister in law of Smt.Gaddegudem Chennamma age 20 years R/o Koilkonda, subjected such women to cruelty namely harassed by demanding additional dowry and gold ring and necked out from your house and that thereby committed an offence punishable under Section 498A of the Indian Penal Code within the cognizance of the Court of Sessions. Secondly: That you A.1 on or about the 7th early hours of May 2003 at Koilkonda Village did commit murder by intentionally causing the death of your wife Smt Gaddegudem Chennamma by throttling and thereby committed an offence punishable under Section 302 of the Indian Penal Code within the cognizance of the Court of Sessions. Alternatively That you A.1 on or about the 7th early hours of May 2003, at Koilkonda Village, caused the death of Smt Gaddegudem Chennamma W/o Vadenna, age 20 years R/o Ramachandrapuram Village, by bodily injury, that her death occurred within 7 years of her marriage, that she was subjected to cruelty or harassment by you i.e., her husband, in connection with demand of dowry and that you thereby committed an offence punishable under Section 304B of the Indian Penal Code within the cognizance of the Court of Sessions.” When the above charges were read over and explained to the accused in Telugu, they pleaded not guilty and claimed to be tried. 4. To substantiate the charges, the prosecution examined PWs.1 to 15 and got marked Exs.P-1 to P-11 besides case property M.O.1. 5. After closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of prosecution witnesses. They denied the same and reported no evidence, either oral or documentary. 6. The trial Court accepted the evidence of prosecution witnesses and found A.1 guilty of the offences punishable under Sections 498A and 302 I.P.C. and accordingly convicted and sentenced him as stated above, while acquitting A.2 and A.3 of the charges levelled against them. Challenging the same, the present appeal is filed by A.1. 7. Now, the point for determination is whether the prosecution proved its case against the appellant/A.1 for the offence punishable under Section 498A and 302 I.P.C beyond all reasonable doubt; and whether the judgment of the trial Court is correct, legal and proper? 8. Learned counsel appearing for the appellant / A.1 contended that there is absolutely no evidence to show that the appellant/A.1 caused the death of the deceased by throttling or strangulating the neck of the deceased, who is no other than his wife; that except, the solitary circumstance that they were living together in the house, there is no other evidence to establish that the accused alone is perpetrator of the crime; that when there is no specific evidence, that A.1 was present at the time of incident, it cannot be presumed that the accused committed the murder of the deceased and therefore, the finding of trial Court that A.1 was guilty under Section 302 IPC is not sustainable and therefore, he prays to set aside the same. 9. On the other hand, learned counsel representing the Public Prosecutor contended that the appellant /A.1 and the deceased were alone present in the house at the relevant point of time of the incident; that there is no scope or possibility for any third person to enter into the house to commit the murder of the deceased in the early hours of the day; that in all probability, the crime must have been committed by the appellant, who has grouse against the deceased as she had not brought sufficient dowry; and that from oral evidence of material witnesses coupled with the medical evidence, it is clear that the death of the deceased was done to death by strangulation by the appellant/ A.1; that the trial Court after an elaborate consideration of evidence on record, rightly found him guilty; and that there are absolutely no grounds to interfere with the conviction and sentence recorded by the trial Court. 10. P.W.9 is one of the inquest mediators, who was present when the Mandal Revenue Officer conducted inquest under Ex.P5 on the body of the deceased. The inquest mediators opined that the deceased died as a result of throttling. The recitals in Ex.P.5 with regard to apparent cause of death of the deceased remained unchallenged. 11. P.W.11 is Civil Assistant Surgeon, who conducted post mortem examination over the dead body of the deceased on 07.05.2003 and found the following injuries: 1. Multiple abrasion over left side of neck. The dimension of those injuries are 1” x 1”, 0.25 c.m. x 0.5 c.m., 0.25 c.m. x 0.25 c.m. 2. Contusion over left side of neck size 2” x 1” 3. Abrasion on right cheek size 2” x 2” 4. On P.M.E. Haematoma left side of the neck. 5. Abrassions ( 2 in number ) Size: 2” x 1”, left side of neck; 1” x 1 ½” right side of neck. She also found the fracture of hyoid bone and left horn. The approximate time of death is about 24:00 Hours to 36:00 Hours, prior to the post mortem examination. The cause of death as per post mortem Doctor is due to throttling which leads to asphyxia and shock resulting death. Ex.P.8 is the post mortem certificate issued by her. Nothing has been elicited in the cross examination of P.W.11 with regard to the opinion expressed by her as to the cause of death of the deceased. Therefore, from the evidence of P.W.11 and the recitals in Ex.P.8, the homicidal nature of death of the deceased is established beyond all reasonable doubt. Now, it has to be seen whether the appellant/A.1 is the assailant of the deceased? 12. Prosecution has not come forward with any immediate motive for accused No.1 to commit the murder of the deceased. A motive is that which moves a man to do a particular act. Many a times, motive is locked up in the mind of the accused. Ordinarily in a case which is based on circumstantial evidence, motive for committing the crime on the part of the accused assumes greater importance. However, absence or non proof of motive is not a ground to acquit the accused. In Atley V State of Uttar Pradesh[1], wherein it is held thus: “That is true and where there is clear proof of motive for the crime, that lends additional support to the finding of the court that the accused was guilty but the absence of clear proof of motive does not necessarily lead to the contrary conclusion. If the prosecution had proved by clear evidence that the appellant had reasons of his own for getting his first wife out of the way, that would have lent additional assurance to the circumstantial evidence pointing to his guilt. But the fact that the prosecution has failed to lead such evidence has this effect only, that the other evidence bearing on the guilt of the accused has to be very closely examined.” 13. As per the evidence of P.W.1, A.1 is no other than the husband of the deceased Chennamma. Their marriage was performed about one year prior to the death of the deceased. At the time of marriage, P.Ws.1 and 2, who are the parents of the deceased, gave Rs.15,000/- cash, three tulas of gold and 50 tulas of silver. For about four months they lived together happily and thereafter A.1 started harassing the deceased to bring additional dowry. Then P.Ws.1 and 2 gave Rs.5000/- so as to meet the demand of A.1. A.2-mother, and A.3- sister, of A.1 were also residing in the same house at Koilkonda Village. On coming to know about the death of the deceased through one Habeeb, who was examined as P.W.6, P.W.1 rushed to the Village of the deceased and accused from their Village Ramachandrapuram Village and they observed the injuries on the neck. Then P.W.1 rushed to the police station and lodged Ex.P1 complaint. As seen from Ex.P.1 report, it is clear that the marriage of accused No.1 was performed with the deceased about one year back and at the time of marriage, gold, silver, cash and almarah were given and for about four months they lived happily and later the accused started harassing her to bring additional dowry. So, the earliest version, as stated in Ex.P.1, is completely in corroboration with the evidence of P.W.1. There is no other reason to doubt the evidence of P.W.1. Admittedly, P.Ws.1 to 3, who are the close relatives of the deceased, are not the residents of Ramachandrapuram Village, where the accused and deceased were residing together as on the date of incident. On coming to know about the death of the deceased, they rushed to the Village. 14. P.W.4 is also resident of Bokkalonipally Village. He rushed to Koilkonda Village at about 9.00 A.M. and found the dead boy of the deceased. So all these persons came to Koilkonda Village after 9.00 A.M. and found the dead body of the deceased. By the time they came to the Village, A.2 and A.3 were present, but A.1 was not present. 15. P.W.5, who is resident of Ramachandrapuram Village, speaks that the accused was harassing the deceased to bring additional dowry. On coming to know about the death of the deceased, he went the house of the accused, which is the scene of occurrence along with P.Ws.1 and 2. 16. P.W.6, who informed about the death of the deceased to P.Ws.1 to 5, did not support the case of the prosecution. P.W.7 also did not support the case of the prosecution. Even after cross-examination by the Public Prosecutor, nothing has elicited to connect the accused with the crime. 17. The only circumstance is that the accused and the deceased were living together as on the date of incident in Koilkonda Village after the marriage. Except that circumstance, there were no other circumstances to indicate that A.1 had strangulated the deceased and was responsible for causing her death. From the evidence on record, except the fact that the death of the deceased was homicidal, there are no other circumstances to indicate that the accused has caused the death of the deceased. There is no direct evidence to prove the case against A.1, the case rests upon circumstantial evidence. Evidence which proves or tends to prove the factum probandam indirectly by means of certain inferences of deduction to be drawn from its insistence or its connection with other facts probantia, it is called circumstantial evidence. It is something form which facts in issue are to be inferred. 18. When the case rests on the circumstantial evidence, the law is well settled in view of principles laid in Sharad Birdhichand Sarda Vs. State of Maharashtra[2] wherein it was held thus: A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established : (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahebrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 : (AIR 1973 SC 2622) where the following observations were made : "certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. " (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. Except the death of the deceased, no other circumstances are established or to infer that the accused was present in the house on the relevant point of time of incident or before the incident or after the incident. Such evidence is lacking. None of the neighbours of the house of A.1 is examined to show that he was present in the house as on the date of incident. The time of the death is also not established beyond reasonable doubt from the ocular testimony. At what point of time, the death of the deceased was caused is not known. For the first time, when P.Ws.1 to 3 came to the Village after 9.00 A.M. they found the dead body of the deceased in the house. Therefore, even if the entire case of the prosecution is accepted as true and correct, at best, it gives raise to a suspicion that the accused might have killed his wife. Suspicion, however strong, cannot take the place of the legal proof. Simply because, the wife and husband were residing in the house, that does not lead to an irresistible conclusion that the husband alone has committed murder of his wife. That circumstance must be supported by some other circumstances to infer that they are residing together in the house as on the date of incident and that the appellant /A.1 was present at the time of incident or before the incident or immediately after the incident. It is not in dispute that A.1 is having Ac.6.00 of land in the outskirts of Village Koilkonda and he used to do agriculture. So accused leaving the house in the early hours of the day cannot be ruled out. If there is any evidence to show that A.1 and the deceased were alone present in the house on the fateful day of incident, certainly presumption that the accused alone is the perpetrator of the crime can be presumed. Further more, the house of the accused is surrounded by many residential houses. No neighbour is examined to show that A.1 was present in the house at the time of incident. 19. On this aspect, it is pertinent to refer to a decision reported in Dasari Siva Prasad Reddy V. Public Prosecutor, High Court of A.P.[3], wherein it was held thus: “A strong suspicion, no doubt, exists against the appellant but such suspicion cannot be the basis of conviction, going by the standard of proof required in a criminal case. The distance between ‘may be true’ and ‘must be true’ shall be fully covered by reliable evidence adduced by the prosecution. But, that has not been done in the instant case. If, coupled with the circumstance unfolded by the evidence of P.W.3, the evidence of P.W.4 had been believed, it would have gone a long way in substantiating the prosecution case. But, in the instant case, apart from the fact that the appellant was at his house on the morning of 20.04.1996, there is no other circumstance whatsoever which connects the accused to the crime, though serious suspicion looms large about his involvement. The view taken by the trial Court that the prosecution could not establish the complete chain of circumstances incriminating the accused is a reasonably possible view and the High Court should not have disturbed the same. Having regard to the state of available evidence, the benefit of doubt given to the accused by the trial Court warranted no interference by the High Court.” 20. Admittedly, A.2 and A.3 were also residing with A.1 and the deceased as on the date of incident. The evidence of prosecution is that all the accused were harassing the deceased for additional dowry. When the evidence let in against all the accused is inseparable and when the trial Court has given the benefit of doubt to A.2 and A.3, such benefit of doubt should have extended to A.1 also. 21. Therefore, except proving the fact that the death of the deceased is homicidal, there are no other incriminating circumstances to infer that the appellant/A.1 alone is the assailant of the deceased. There is no legal evidence to convict the appellant / A.1 for the offence punishable under Section 302 I.P.C. 22. So far as the offence under Section 498A I.P.C. is concerned, P.Ws.1 to 3 have categorically deposed that for about four months, the accused No.1 and deceased lived happily and thereafter A.1 started demanding the deceased to bring additional dowry. There cannot be any dispute that harassment of wife by the husband coercing her to meet unlawful demand is a cruelty within the meaning of Clause (b) of the explanation to Section 498A I.P.C. In the earliest version, P.W.1 has categorically stated in Ex.P.1, that the accused No.1 started harassing the deceased to bring additional dowry since four months after the marriage. The marriage took place one year prior to the incident. Therefore, there is no other reason for P.Ws.1 and 2 to speak false against the accused saying that he was demanding dowry. Therefore, we have no hesitation in holding that the appellant / A.1 has committed the offence punishable under Section 498A I.P.C. and that the finding of trial Court with regard to that offence needs no interference by this Court. However, the conviction and sentence of the appellant / A.1 recorded by the trial Court for the offence punishable under Section 302 I.P.C. is set aside and he is acquitted of the said charge, while confirming the conviction and sentence for the offence punishable under Section 498A I.P.C. 23. Accordingly, the appeal is partly allowed to the extent indicated above. _______________ K.C. BHANU, J ____________________________ N.R.L.NAGESWARA RAO, J DECEMBER 21, 2010. YVL L.R.Copy to be marked. (B/o) YVL [1] AIR 1955 SC 807 [2] AIR 1984 SC 1622 [3] (2004) 11 Supreme Court Cases 282