HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.1534 OF 2007 Dated:07-07-2011 BETWEEN: State of A.P., rep. by its Public Prosecutor, High Court of A.P., Hyderabad …Appellant AND Mutyala Vara Prasad and 2 others …Respondents THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.1534 OF 2007 JUDGMENT: (Per Hon’ble Sri Justice Raja Elango) State, represented by Public Prosecutor, preferred this appeal questioning the acquittal order, dated 04.07.2005 passed in S.C.No.354 of 2003 on the file of II Additional Sessions Judge, West Godavari, Eluru acquitting the respondents-accused 1 to 3 of the charges punishable under Sections 302 and 304 r/w 34 I.P.C. 2. The story of the prosecution as narrated during the course of trial is as under: A.1 is the son of A.2 and A.3. P.W.1 is the brother and P.W.2 is the mother of Mutyala Durgadevi (hereinafter called as ‘deceased’). On 9.2.2000 the marriage of deceased was celebrated with A.1 with the blessings of both family elders. When the deceased went to the house of accused to lead conjugal life, A.1 to A.3 caused mental harassment towards the deceased by demanding her to bring huge amount of money. As a part of harassment, the accused beat the deceased in indiscriminate manner on several occasions. Due to the harassment caused by the accused, the deceased left her in-law’s house and stayed at her parents house. Later at the instance of mediators, the deceased went to the house of her in-laws in the month of January, 2002 for leading conjugal life. As the accused continued their harassment, she once again came to her parental house in the month of July, 2002. During the month of December, 2002 at the intervention of the parents of the deceased, elders of both the families decided to put up separate family for the accused and the deceased. Accordingly, the father of the deceased took the cement sheet portion of P.W.4 for rent and that A.1 and the deceased occupied the said house on 15.2.2003. While so, on 18.2.2003 in the morning, A.1 instructed the deceased to bring Rs.10,000/- from her parents, otherwise he would see her end and so saying proceeded to his parental house along with his child. When P.W.1 came to the house of deceased at 1.00 p.m., she informed about the demand and threatening warnings made by A.1. On that, P.W.1 left to his house to inform the same to their parents. At about 2.00 p.m., A.1 returned back and came to know that the deceased did not bring the required amount. On that he grew wild against her and picked up a quarrel with her. At about 4.30 p.m., when the deceased tried to wake up A.1 requesting him to bring some milk, he got angry against the deceased and beat her with a blunt stick called as ‘Appadala Karra’ over the right side of her face. While the deceased was weeping due to the bleeding injury, A.1 tied a towel around her neck, pushed her upon the floor by the side of their bed and strangulated her to death. At that juncture, P.W.1 entered into the house of deceased and witnessed A.1 strangulating the deceased. On seeing P.W.1, A.1 pushed him and escaped from the place of occurrence. Later, P.W.1 presented Ex.P.1 report with the police on the same day at 10.00 p.m., on which basis, a case in Crime No.22 of 2003 was registered under Section 302 IPC. On 19.2.2003, the Circle Inspector of Police observed the scene of offence, seized the bloodstained blunt stick called as ‘Appadala Stick’, two bloodstained bangle pieces, bloodstained towel, sample of blood from the scene and got photographed the scene of offence, held inquest over the dead body of the deceased in the presence of panchayatdars and sent the dead body to the Government Hospital for post-mortem examination. On the same day, at 9.00 p.m. he arrested A.1 at his parents house in the presence of mediators and seized the bloodstained shirt from him. On 25.2.2003 the parents of deceased gave a revised report explaining the harassment caused by A.1 to A.3, on which basis, the section of law was revised by adding Section 304-B IPC read with 34 IPC. On 27.2.2003 at 10.00 p.m. A.2 and A.3 were arrested at their residence. P.W.12-doctor conducted post-mortem examination over the dead body of the deceased and issued Ex.P.13 post-mortem certificate opining that the cause of death was due to Cordio respiratory failure, due to shock, due to asphyxia and due to strangulation. On completion of investigation, a charge sheet was laid against the accused. When the charges were read over and explained to accused in Telugu, they denied the same and claimed to be tried. 3. To bring home the guilt of the accused, prosecution examined P.Ws.1 to 12 and marked Exs.P.1 to P.13 besides M.Os.1 to 7. On behalf of defence, no oral evidence was adduced but Exs.D.1 to D.3 were marked. 4. P.W.1 is the brother of the deceased who set the criminal law in motion by lodging Ex.P.1 report. P.W.1 deposed that on 18.2.2003 at about 1.45 p.m., he went to the house of the deceased and on his enquiry, she informed that A.1 went to his parents house and that A.1 is demanding to bring Rs.10,000/- otherwise, he would kill her. Later he left the house and went to college. Again at 4.30 p.m. he went to the house of the deceased and on entering into the house, he found A.1 tying a towel around the neck of the deceased. At that time A.1 was found sitting on the deceased. On seeing P.W.1, A.1 got up from the deceased and fled away from that place. He went near the deceased and found her dead. Then he lifted the son of the deceased, went to his house and informed the same to his parents. Later at about 9.30 p.m., he presented Ex.P.1 report with the Jangareddigudem police. P.W.2 is the mother of the deceased. She deposed that on 18.2.2003 at about 5.00 p.m. P.W.1 came to her and informed that the deceased was killed by A.1. On that, herself and her husband went to the house of A.1 and found the dead body of the deceased in a pool of blood. She stated that at the time of marriage, she gave an amount of Rs.90,000/- as dowry. Subsequently, A.1 was demanding additional dowry and that the deceased informed them about the harassment meted out by the accused in connection with demand of dowry. She further stated that A.1 and the deceased wanted to establish a separate house and accordingly they have also lived in a separate house and that three days prior to the occurrence, they shifted the earlier rented house and living in a different house. Further she stated that she lodged another complaint along with P.W.3 before the police on 25.2.2003. P.W.3 is a relative of P.Ws.1 and 2 and she deposed regarding the earlier demand of dowry by A.1. She is not eyewitness to the occurrence. P.W.4 is a resident of the same village and he has not supported the case of the prosecution and was treated as hostile. P.W.5, who is also the resident of the same village deposed that the deceased used to inform her regarding the demand of dowry by A.1. P.W.6, who is also a resident of the same village deposed that P.W.2 informed him that the deceased and A.1 wanted to set up a separate family, for which, they have also arranged some place in a rented house. He has not stated anything regarding the demand of dowry. P.W.7 is a Secretary of Grampanchayat and he is a witness to the observation of the place of occurrence and also the recovery of the bangle pieces, Appadala Karra and Towel. P.W.8 is a photographer who took the photographs of the scene of offence. P.W.9 is Assistant Sub-Inspector of Police, who registered a case in Crime No.22 of 2003 for the offence under Section 302 on the basis of Ex.P.1 report. He further stated that on 25.2.2003 again he received a complaint from P.W.2 and on the basis of it, the section of law was altered to Section 304-B IPC. P.W.10 is the Inspector of Police. On receipt of information about registration of F.I.R., he visited the place of occurrence, observed the place and prepared the observation report, held inquest over the dead body of the deceased in the presence of P.W.7 and others from 7.30 a.m. to 10.00 a.m. and sent the dead body for post-mortem examination. On credible information, he arrested A.1 on 19.2.2003 and recovered M.O.7-full hand shirt from the house of A.2 and A.3. P.W.11 is the Deputy Superintendent of Police, who on completion of investigation laid the charge sheet before the Court for the offences punishable under Sections 302 and 304-B r/w 34 IPC. P.W.12 is the doctor who conducted post- mortem examination over the dead body of the deceased and issued Ex.P.13-post-mortem report. He observed the following injuries over the dead body of the deceased: “External injuries: 1. The tongue is clinched between the teeth of upper and lower Jaws; 2. Cya-no-sis of lips and gums are present; 3. Froth is coming through both nostles; 4. There is a lacerated injury on the right side of the cheek one inch below the right eye, measuring 1” x 1/8” red in colour, blood stains are sen around the wound’ 5. Face is Hypernic; 6. Neck: Neck is found swollen measuring 6” x 6” red in colour prominentcutaneous. Vvessels: seen over the upper part of the chest. Cyanosis of finger nails are present. Thorax: There is a contusion in front of chest on the center, measuring 2 x 2 inches, red in colour. Internal examination: Brain and meninges are pale and congested. Neck: posterior aspect of neck muscle petichal Haemorrhages are present on both sides. Traces of blood present on both sides of the vessels of the neck. Trachea and Uesophagus are congested . Froth is present in the lumen of trachea and bronchus. Hyoid bone is broken on the right harn. On the Thorax Haematoma is present in the center of the thorax. Size is 2 x 2 inches, red in colour. Lungs are congested. Stomach is empty.” He opined that the cause of death is due to Cordio respiratory failure, due to shock, due to asphyxia and due to strangulation. 5. The learned Sessions Judge after appreciation of oral and documentary evidence held that the prosecution miserably failed to bring home the guilt of the accused and accordingly acquitted them of the charges. Hence challenging the said acquittal, the present appeal is preferred by the State. 6. The entire case of the prosecution mainly based upon the evidence of P.W.1. Therefore, the evidence of P.W.1 has to be scrutinized to know whether it is cogent, probable and believable. P.W.1 failed to explain the delay in lodging Ex.P.1 complaint which is lodged five hours after the incident. Admittedly, he saw the dead body of the deceased by 5.00 p.m. in the place of occurrence. The police station is half a kilometer away from the place of occurrence. But he lodged the complaint at 9.30 p.m., which clearly indicates that the complaint lodged by P.W.1 was after full deliberation and discussions with the other persons concerned. Further he stated that he has not tried to unknot the towel which was surrounded the neck of the deceased. Further he stated that at the time of occurrence, he saw the accused who sought on the deceased. But the same was not reported by him before the investigating officer at the time of examination by the officer under Section 161 Cr.P.C. Further he has admitted that he has not stated regarding the demand of dowry before the investigating officer and further he admitted that he has not stated before the officer that he visited the house of deceased in the afternoon hours of 18.2.2003. Thus the introduction of P.W.1 is deliberately by the investigating agency to make out a case for an offence under Section 302 I.P.C. Further on seeing the brother-in-law committing the murder, it should be the natural conduct of P.W.1 to chase and grab him. But he has not stated that he tried to secure A.1 and on the other hand he stated that he has not raised any hue and cry on seeing the incident, but immediately he stated that he made hue and cry and the neighbours also reached there. Further he has not taken any care to protect the place of occurrence and he has not stated whether he informed anybody that the dead body was lying in the house. He has also not stated any reason for not removing the towel which was surrounded the neck of the deceased. Without confirming the death of the deceased, P.W.1 left the place of occurrence without taking any care, which also creates a doubt in the mind of the Court. Hence the theory of Section 302 committing the murder by A.1 in the presence of P.W.1 is totally unbelievable and hence, it can be inferred that it is not a case of Section 302 IPC. Further the same is confirmed by the cross-examination of doctor-P.W.12. For better appreciation, the entire cross-examination of P.W.12 is re-produced hereunder: “Cross Examination on behalf of A-1 by N.M.G.R:- Ordinarily the contusions and lacerations are possible if a person falls on a hard object. For both the hanging and Strangulation Asphyxia death is possible. By Court:- You are saying it as strangulation. What is the basis for it? Ans:- As there is ligature mark around the neck, I am saying ti as Strangulation. Cross Examination by counsel for A-1:- At page No.157 of Medical Jurisprudence by Dr.J.C.P.Modi, the differences between strangulation and hanging are mentioned in detailed. Dr.Modi described in his book that in majority of cases of hanging the point of suspension is not very high, a hook, a nail, or a door being commonest also death can be achieves even in a sitting, kneeling or lying position, proving that a pull with slight force is enough to cause unconsciousness and death. It may be possible that the mark may be found on or below the thyroid cartilage, especially in cases of partial suspension. It may also be circular if a ligature is first placed at the nape of the neck and then its two ends are brought horizontally forward and crossed and carried upward to the point of suspension from behind the angle of the lower jaw on each side. In case of hanging also the tongue will be protruded in between the teeth and petical haemorrhage is possible on the face under the conjunctiva and neck. Blood will be seen at mouth and nostles in the case of hanging also. In the case of hanging, the fracture of Hyoid bone is also possible. It is true that in Ex.P-12 the measurements of swollen part of the neck is mentioned 6” X 6”. Nowhere in my report, I stated about the presence of ligature marks specifically except mentioning neck is swollen. It is not correct to suggest that my opinion about the cause of death is due to strangulation is not a correct one. Thus the above cross-examination of the doctor clearly indicates that the doctor who conducted the post-mortem examination is also not in a position to establish the fact whether it is a case of murder or suicide. 8. If it is decided as not a case of murder, whether it if is a suicidal case so as to attract an offence under Section 304-B IPC is to be decided by this Court. The followings are the provisions to attract an offence under Section 304-B IPC: “304B. Dowry death.-- (1) Where the 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 her 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. Explanation.- For the purposes of this sub- section," dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961 ). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life. “ The above section clearly indicates that the death should be in unnatural circumstances and it should be in connection with demand of dowry. Here, in the present case, the demand of dowry is not spoken to by P.W.1 at the time of lodging Ex.P.1 report. With an intent to make out an offence under Section 304-B IPC, the second complaint was lodged by P.W.2 on 25.2.2003 on the basis of which, the case is registered under Section 304-B IPC. The said complaint was not marked before the trial Court since it was objected by the accused on the ground that it was hit by Section 162 of Evidence Act. But the fact remains that under Ex.P.9, which is the First Information Report recorded for the second time, an offence under Section 304-B is added, which clearly indicates that for a period over one week from the date of occurrence to the registration of second complaint on 25.2.2003 the investigating agency has not desired to alter the Section under Section 304-B IPC. Therefore, the subsequent statements, which were recorded after lapse of one week implicating the accused as if they were demanding the dowry is only with an intent to attract an offence under Section 304-B IPC. On the other hand it is the case of P.W.2 and 3 that because A.1 and the deceased wanted to establish a separate family, there were quarrels between them and later they were residing in a separate place. Except P.W.1 there is no other witness to speak the presence of A.1 at the place of occurrence in the evening time and it is the case of P.W.1 that nearby there are houses and on his hue and cry the neighbours gathered there. But unfortunately, none of them were examined by the prosecution to substantiate that at the time of occurrence A.1 was present there. In the absence of any evidence to show that there was any specific demand of dowry and harassment in connection with demand of dowry by the accused and in the absence of any evidence to establish the presence of A.1 at the time of occurrence, we are of the view that no offence under Section 304-B IPC can be presumed by the Court. The prosecution by admissible evidence established a fact that it is an unnatural death and the presumption under Section 113B of the Evidence Act can be invoked but for invoking the said presumption, the prosecution must positively establish the presence of the accused and the manner in which the occurrence took place should be in a suspicious manner. Here, there is no such evidence adduced by the prosecution. Hence, there is no need to presume that the accused should rebut the presumption. Hence we see no ground to interfere with the judgment and order passed by the learned Sessions Judge. 9. In the result, the Criminal Appeal is dismissed. _______________ A. GOPAL REDDY. J _________________ RAJA ELANGO, J JULY 07, 2011 Tsr.