THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.572 of 2007 Dated : 25.10.2010 Between : S.Srinivasulu Reddy …. Appellant-A.1 a n d The State of A.P. … Respondent THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.572 of 2007 COMMON JUDGMENT: (per The Hon’ble Sri Justice Raja Elango) This Criminal Appeal under Section 374 (2) of the Code of Criminal Procedure (for short ‘Cr.P.C.’) is filed by the appellant-A.1 questioning the conviction and judgment dated 29.03.2007 rendered in Sessions Case No.82 of 2006 by the I Additional District and Sessions Judge, Ongole, wherein the learned Sessions Judge while acquitting A.2 under Section 235 (1) Cr.P.C. for the offence punishable under Sections 302, 498A, 201 of Indian Penal Code (for short ‘IPC’) and Section 4 of Dowry Prohibition Act (for short ‘D.P. Act’), convicted the appellant-A.1 under Section 235 (2) Cr.P.C. for the said offences and sentenced him to suffer simple imprisonment for life and to pay fine of Rs.400/- for the offence punishable under Section 304B IPC, also sentenced him to suffer simple imprisonment for one year and to pay fine of Rs.100/- for the offence punishable under Section 498A IPC, further sentenced to suffer simple imprisonment for three years and to pay fine of Rs.200/- for the offence punishable under Section 201 IPC and also sentenced to undergo simple imprisonment for six months and to pay fine of Rs.100/- for the offence punishable under Section 4 of D.P. Act. 2) The case of the Prosecution, in brief, is that the marriage of the deceased Suguna was performed with A.1 nearly five years prior to the incident in the present case and at that time her parents gave cash of Rs.2,40,000/- and gold worth Rs.50,000/- towards ‘Stridhana’. Having not satisfied with said amount, A.1 and his father A.2 started harassing the deceased physically and mentally to bring additional dowry from her parents, due to which, P.W.1, father of the deceased, gave Rs.50,000/- to A.1 for starting hotel business and the said business was closed within three months due to losses. Subsequently, A.1 mortgaged the jewellery of the deceased and demanded her to get redeem those jewellery by her father. Accordingly, P.W.1 paid Rs.20,000/- and redeemed the jewellery. Due to the harassment of the accused, parents of the deceased send mediators, who held panchayath. In pursuance to the said mediation, P.W.1 purchased an auto and given to A.1 for eaking out his livelihood. In spite of the same, accused continued their harassment over the deceased. Again, another panchayath was conducted by the mediators and A.1 taken back the deceased to his company. Again the accused started harassing the deceased, manhandled her, taken away her gold jewellery and pledged it. On the previous day of the incident, an altercation took place between the accused and deceased with regard to redemption of mortgaged jewellery and additional dowry, for which the accused beat the deceased and on the same day at 8.00 p.m. the deceased informed the harassment of the accused to her parents by telephone. On the intervening night of 28/29.09.2005 at about 3.00 a.m. A.1 informed P.W.1 by phone that the deceased was died, upon which, P.Ws 1 to 3 and other relatives reached the house of A.1 by 4.50 a.m. and found the dead body of the deceased lying on a cat with pressing marks on either side of her neck and nails scratches on the right leg. On seeing P.W.1 scribing the report, A.1 and A.2 fled away. Thus, P.W.1 lodged a report against the accused. 3) Basing on the above said complaint, the S.I. of Police, Kanigiri Police Station, registered a case in Crime No.96 of 2005 for the offence punishable under Sections 304B, 498A and 201 of Indian Penal Code, issued Express F.I.Rs. to all the concerned. The Sub- Divisional Police Officer took up further investigation, visited scene of offence, prepared observation Mahazar before P.Ws.8 and 9, also prepared rough sketch of scene of offence, got conducted inquest by MRO and thereafter send the dead body for autopsy. Further, after completion of investigation and collecting all the necessary reports, Police filed charge sheet against the accused, which was numbered as P.R.C. No.3 of 2006 by the Judicial First Class Magistrate, Kanigiri. 4) On committal, the learned Sessions Judge examined the accused under Section 228 of the Code of Criminal Procedure and framed charge under Sections 302 or 304B, 498A and 201 IPC and Section 4 of D.P. Act, in which, the accused denied the charges and claimed for trial. 5) In order to prove the guilt of the accused, Prosecution examined PWs 1 to 13 and marked Exs.P.1 to P.19 apart from marking MOs 1 to 4. After closure of Prosecution evidence, accused were examined under Section 313 Cr.P.C. in which they denied the incriminating evidence put to them available in the evidence of Prosecution witnesses. Though the accused did not choose to adduce any evidence on their behalf, marked Ex.D.1 in their defence. After hearing the arguments on both sides and on appreciation of oral and documentary evidence, the learned Session Judge rendered the impugned judgment. 6) Heard the learned counsel for the appellant and the learned Public Prosecutor for the State. 7) Learned counsel for the appellant submitted that P.Ws.1 and 2 are the interested witnesses and they have not deposed cogently and there are lot of discrepancies and material contradictions in their evidence, which are self-contradictory and contradicting with each other. He further submitted that the doctor’s evidence is not clear as to whether the death is due to homicidal violence or by suicide. 8) The learned Public Prosecutor submitted that the circumstances clinchingly connect the accused with the crime and there is no necessity to interfere with the impugned judgment. 9) The entire case of the Prosecution is based on the circumstantial evidence. After thorough investigation, the investigating agency filed a charge sheet before the Court for an offence punishable under Sections 304B, 498A, 201 IPC and Section 4 of D.P. Act. But, the learned Sessions Judge after perusal of the charge sheet and the documents filed by the investigating agency framed the charges under Sections 302 or 304B, 498A and 201 IPC and Section 4 of D.P. Act. Since the evidence collected by the investigation agency establishes no specific case either to frame charge under section 302 or 304B IPC, the learned Sessions Judge has rightly framed the charges against the accused as stated above. But, on perusal of the first charge framed by the learned Sessions Judge it is stated that A.1 throttled the neck of the deceased while A.2 caught hold the legs of the deceased and committed the offence. 10) We carefully perused the entire documents filed and perused the records. Except the confession of the accused, there is no other evidence to show that A.1 and A.2 committed murder of the deceased as charged by the learned Sessions Judge. The learned Sessions Judge while rendering the impugned judgment mainly relied on the evidence of P.Ws. 1 to 3, 7, 8 & 10. 11) PW.1, the father of the deceased, deposed regarding the marriage and the demand of dowry. He further deposed that he received phone call from A.1 that the deceased committed suicide. On such information, he went to the scene of offence and found his daughter’s dead body in a cot with some pressing marks on her neck and scratches on her right leg and also found some broken bangles at the scene. P.W.2, mother of the deceased, also supported the version of P.W.1. But, admittedly P.Ws.1 and 2 are not the eye-witnesses to the occurrence. 12) P.W.3, sister of the deceased, deposed about the continuous demand of dowry by A.1 and also that once she witnessed A.1 beating the deceased. P.W.4 is the house owner, in which the deceased and accused lived together. P.W.5, wife of P.W.4, also supported the version of P.W.4. 13) P.W.6 is the photographer, who deposed about his taking photographs of the dead body of the deceased and also the place where the dead body was lying. P.W.9 is the panch witness for scene of offence. 14) P.Ws.7 and 8 are related to both the deceased and accused and they deposed regarding the panchayaths held and also their knowledge of disputes between the deceased and accused. 15) P.W.10 is the doctor, who conducted post-mortem over the dead body of deceased, and gave opinion under Ex.P.16 post-mortem certificate and according to him he found the following external injuries over the dead body of the deceased : 1) Two semi circular abrasions present on either side of the upper part of the throat one on each side of the throat 2 cm below the enter of the body of the Mandible on either side of the Neck the size of 2.5 cm X 2 cm X skin deep injury on right side. On left side 2.5 cm X 1.5 cm X skin deep injury present. Margins of both injuries are inverted. 2) An irregular abrasion of 0.5 cm X 0.5 cm X skin deep abrasion present on the right leg 3 cm above the Medical maeulous. Reddish black in colour. 3) An irregular reddish black 0.5 cm X 0.5 cm X skin deep abrasion present on the posterior side of the right leg. 5 cm above the ankle joint. The above injuries are ante mortem in nature. 16) The evidence of P.Ws.1 and 2 particularly establishes the telephone call received by them from the deceased at 8.00 p.m. on the day she died informing that the accused beat her and taken away her jewellery and asking them to come immediately. It is a case based on circumstantial evidence. Following circumstances need to be taken into consideration while adjudicating the matter: i) there was a quarrel between the deceased and A.1, ii) there was demand of dowry by the accused, iii) a telephone call was made by the deceased to her parents prior to the incident informing the demand of jewellery by A.1 and beating her and iv) the accused fleeing away from the place where the dead body was lying when P.Ws.1 and 2 questioned them about the injuries sustained by her. 17) The investigation agency filed charge sheet against the accused for the offence punishable under Section 304B, 498A and 201 IPC and Section 4 of D.P. Act. There is no explanation by the investigation agency as to why they have not altered the section of law to one under Section 302 IPC from 304B IPC even after receipt of post- mortem examination certificate, which indicates that the death of the deceased is due to homicidal violence. The learned Sessions Judge framed charge under Section 302 IPC on the basis of the post-mortem certificate and also on the basis of the confession given by the accused, which is inadmissible in evidence. 18) In the present case, there is no reason to disbelieve the evidence of P.Ws.1 to 3, 7 and 8 in connection with the demand of dowry and quarrels between A.1 and deceased. Their evidence in connection with the same is cogent and inspiring the confidence of this Court. 19) To convict the appellant under Section 302 IPC, the only piece of evidence now available is the post-mortem certificate. The evidence adduced by the doctor, who conducted post-mortem examination, is relevant to be looked into. On a perusal of the evidence adduced by the doctor and also the postmortem examination report, it is evident that the doctor is not in a position to substantiate that the death is due to homicidal violence. The discrepancies in the post-mortem certificate and the contradictions in the evidence adduced by the doctor clearly indicate that the doctor is not in a position to inform the Court whether the death of the deceased is homicidal or suicidal. 20) Now the question before this Court is ‘whether the accused can be convicted for an offence punishable under Section 302 IPC or 304B IPC on the basis of the available evidence?” 21) One of the prime charges framed by the learned Sessions Judge against the appellant is under Section 302 or 304B IPC. Section 304B IPC runs as follows : “ Where death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before here death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.” The main ingredients of Section 304B IPC are 1) death of a woman caused by any burns or bodily injuries occurred otherwise than under normal circumstances, 2) within 7 years of marriage 3) soon before her death she was subjected to cruelty by her husband in connection with demand of dowry. 22) In the present case, the evidence adduced by the prosecution witnesses, more particularly the evidence of P.Ws.1 to 3, 7, 8 and 10 clearly establishes that the death of the deceased is unnatural. Their evidence also attracts the other essential ingredients of Section 304B IPC. Hence, this Court is of the view that it is unsafe to convict the appellant for an offence punishable under Section 302 IPC in view of the evidence adduced by the doctor, who held autopsy. Hence, the appellant can be convicted for an offence punishable under Section 304B IPC since the present facts and circumstances of the case and the evidence adduced by the Prosecution clearly establish the ingredients of Section 304B IPC. 23) In view of the foregoing discussion, the conviction and sentences imposed by the trial Court against the appellant are modified as under: The conviction and sentence imposed by the trial Court against the appellant for the offence punishable under Section 201 IPC is set aside. Further, the appellant is convicted for an offence punishable under Section 304B IPC and sentenced to undergo rigorous imprisonment for ten years. In view of the same, the conviction imposed on the appellant for the offence punishable under Section 498A IPC and Section 4 of D.P. Act are also confirmed, but no separate sentences are awarded for the said offences. 24) The Criminal Appeal is, accordingly, disposed of. ____________________ A.GOPAL REDDY, J __________________ RAJA ELANGO, J 25th October, 2010. sur