THE HON'BLE SRI JUSTICE A.GOPAL REDDY and THE HON'BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1447 of 2007 Judgment: (Per Hon’ble Sri Justice A. Gopal Reddy) The appellant/accused, who was tried for the offences under Sections 498-A and 302 I.P.C in S.C.No.254 of 2006 by the IV Additional District and Sessions Judge (Fast Track Court), Tanuku, was found guilty of the said offences, convicted therefor and sentenced to undergo imprisonment for life and to pay a fine of Rs.100/-, in default, to undergo simple imprisonment for one month for the offence under Section 302 I.P.C; and rigorous imprisonment for six months and to pay a fine of Rs.100/- in default to undergo simple imprisonment for one month for the offence under Section 498-A I.P.C, by judgment dated 08.10.2007. Both the sentences were directed to run concurrently. Challenging the conviction and sentence recorded against him, the appellant filed this appeal. 2. The case of the prosecution, in nutshell, is as under: P.W.1 is the brother, P.W.2 is the mother and P.W.5 is the grand mother of Ponnada Suneetha (hereinafter referred to as “the deceased”), whereas, P.Ws.3 and 4 are the sons of P.W.5. The father of the deceased died prior to her marriage. The accused and the deceased fell in love and with the consent of their elders, their marriage took place on 24.10.2002 at Sri Lord Venkateswaraswamy Temple, Marteru. At the time of marriage, a sum of Rs.30,000/- was presented as dowry. After the marriage, the deceased lived with the accused happily for one year. Thereafter, she became pregnant but the same was aborted due to her ill-health, and as such, she stayed in the house of P.Ws.1 and 2 for one year. Thereafter, P.Ws.1 and 2 sent the deceased to the house of the accused. The marriage of P.W.1 was scheduled to be performed on 18.05.2005. On account of the same, the deceased was brought to the house of P.Ws.1 and 2 on 05.05.2005. The accused also accompanied the deceased. Three days thereafter, i.e., on 08.05.2005 the accused quarrelled with the deceased and left the house stating that he would not attend the marriage of P.W.1. At the request of the deceased, P.W.2 went to the house of the accused on 13.05.2005 and requested him to come to the marriage. On the same day at 5.00 p.m., the accused came to the house of P.Ws.1 and 2, quarrelled with the deceased and left the house. When P.W.2 asked the reason for quarrel, the deceased informed her that the accused used to quarrel with her by suspecting her fidelity. On the intervening night of 13/14.05.2005 at about 2.00 a.m., the accused came to the house in a drunken state and knocked the door. P.W.2 opened the door and instructed the deceased to give some water to the accused. After giving water, P.W.2 asked the accused to have dinner. When he refused to have dinner, P.W.2 requested him to take at least buttermilk. The deceased brought buttermilk and the accused took the same. Then P.W.2 instructed the accused to sleep in the bedroom, where the deceased was sleeping, and she went upstairs for sleeping. On 14.05.2005 at about 5.00 a.m., the accused came to P.W.2, woke up her and requested to come down. P.W.2 came down and found the deceased hanging with her saree to the fan. P.W.2 removed the saree with the help of P.W.1 and laid the body of the deceased on the floor. P.W.1 went to the house of the doctor and called him, and the doctor after, examination declared the deceased as dead. On 14.05.2005 at about 10.00 a.m., P.W.13-the Sub Inspector of Police, Penumatur Police Station, received a report–Ex.P.1 from P.W.1. On the basis of the said report, he registered a case in Crime No.28 of 2005 under Sections 498-A and 306 I.P.C. Ex.P.9 is the original F.I.R. Later, he sent a requisition to P.W.10-the Mandal Executive Magistrate to conduct inquest over the dead body of the deceased. P.W.10 conducted inquest over the dead body of the deceased on the same day between 12 noon and 3.45 p.m in the presence of P.W.9. Ex.P.7 is the inquest report. P.W.13 visited the scene of offence, prepared rough sketch of the scene of offence and also observation report in the presence of P.W.9. Ex.P.6 is the observation report. He got photographed the scene of offence through P.W.18. Exs.P.2 to P.4 are photographs. Ex.P.10 is the rough sketch of the scene. After inquest, the body was sent for post mortem examination through P.W.12. P.W.11-the Civil Assistant Surgeon conducted autopsy over the dead body of the deceased and issued Ex.P.8-Post Mortem Certificate. According to her, the cause of death was asphyxia due to throttling. On 16.05.2005, P.W.13 arrested the accused. On 25.05.2005, on receipt of the post mortem certificate, P.W.13 altered the section of law from 498-A and 306 I.P.C to 498-A, 302 I.P.C. Ex.P.11 is the altered F.I.R. After completion of investigation and receipt of relevant reports, the police laid charge sheet. 3 . On committal, the learned Sessions Judge framed charges against the accused for the offences under Sections 498-A and 302 I.P.C. When the said charges were read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried. 4. To substantiate the accusation made against the accused, the prosecution examined as many as 13 witnesses and got marked 11 documents, besides material objects 1 and 2. 5. After completion of the prosecution evidence, the accused was examined under Section 313 Cr.P.C., with regard to the incriminating material made against him by the prosecution, which he denied. However, though none were examined, Exs.D.1 and D.2- contradictions made in 161 Cr.P.C statement of P.W.3 were marked on behalf of the accused. 6. The learned Sessions Judge, after appreciation of the oral and documentary evidence, found that the prosecution could able to bring home the guilt of the accused beyond all reasonable doubts and accordingly, convicted and sentenced him as aforementioned. 7. Learned counsel for the appellant contends that the deceased was hyper sensitive and once she consumed pesticide when P.W.2 refused to perform her marriage with the accused; that the appellant was falsely implicated in this case, as P.Ws.1 and 2 do not like his marrying the deceased; that the accused was not in the company of the deceased on the date of occurrence; that the dead body was seen hanging to the ceiling fan in the pooja room before shifting the same and that except the evidence of P.W.2 that on the date of occurrence at about 2.00 a.m., the accused came to their house and both the accused and the deceased slept in the bed room, no other witness spoke about the leaving of the accused from the scene of offence. If the said evidence of P.W.2 is eschewed, there is no other evidence to connect the accused with the crime. He further contended that P.W.10- the doctor, who conducted post mortem examination over the dead body of the deceased, stated that it is a case of suicide but not homicidal and that saliva was coming out of the mouth when the dead body of the deceased was removed, which also supports that it is a case of suicide, but not homicidal death, and therefore, he prays to set aside the impugned judgment and acquit the accused. 8. On the other hand, the learned Public Prosecutor supported the impugned judgment contending that it is natural that the accused and the deceased visiting the house of P.Ws.1 and 2 since the marriage of his brother-in-law (P.W.1) was ensuing and there is nothing unnatural in the evidence of P.Ws.1 and 2 that the accused was present in their house at the time of occurrence. 9. P.W.1, who is the brother of the deceased, and who lodged the report under Ex.P.1 deposed that the marriage of the deceased and the accused was love marriage; that after the marriage, the accused and the deceased lived happily for a period of one year and later the deceased became pregnant, but, due to her ill-health, it was aborted; that as the deceased was suffering with ill-health, she resided in their house for one year and during that period the accused used to suspect the fidelity of the deceased, quarrel with her and beat her twice or thrice; that after one year, they sent the deceased to the house of the accused; that as his marriage was fixed and scheduled to be held on 18.05.2005, his paternal uncle and aunt brought the deceased and the accused to his house; that on 05.05.2005 the accused left their house; that on 08.05.2005 the accused again came to their house and quarrelled with the deceased and went away from the house; that when his mother questioned the deceased as to what had happened, the deceased stated that the accused was suspecting her fidelity; that on 13.05.2005 his mother went to the house of the accused and requested him to attend the marriage and waited for two hours at his house and later came to their house; that on the same day at about 5.00 p.m the accused came to their house and again quarrelled with the deceased; that his mother stated to the deceased that after completion of his (P.W.1) marriage, they will settle the dispute between her (deceased) and the accused; that on the intervening night of 13/14.05.2005 at about 1.00 a.m he came to his house after closing the shop, and when he enquired his mother whether the accused came to their house or not, his mother stated that the accused never came their house, and later he had taken meals and slept on upstairs; that on the same day at about 2.20 a.m., his mother came to him and informed that the accused came to their house at 2.00 a.m in a drunken state and when she asked him to take meals, he refused and then she instructed him to sleep in the bedroom, where the deceased slept; that on 14.05.2005 on hearing the cries, he rushed down from upstairs and observed the deceased hanging with saree, and that his mother removed the saree and then himself, his mother, paternal grand mother (P.W.5) and one Babji (P.W.7), who is his neighbour, shifted the dead body of the deceased from pooja room to kitchen and kept the same on the floor. In the cross examination, he admitted that he has not mentioned in the report or the statement given before the police that his mother informed him about the arrival of the accused on the intervening night of 13/14.05.2005 and that he did not mention in Ex.P.1 complaint that his paternal uncle pacified the dispute between the deceased and the accused prior to the incident. He also admitted that when he reached the Police Station, the S.I of Police was present and he gave statement orally with regard to the death of the deceased on the first occasion and later he got prepared Ex.P.1 report with the help of a known person; that the deceased consumed pesticide prior to her betrothal with the accused; that he wanted to perform the marriage of the deceased with a better status person; that his mother did not inform him about the incident till he woke up after hearing the cries and that the deceased was hyper sensitive woman by nature. 10. P.W.2, who is the mother of the deceased, also deposed in similar lines of P.W.1. She stated that on 14.05.2005 at about 5.00 a.m., the accused came to her, woke up her and requested to come down from upstairs. Then she came down, entered the house and found the deceased hanged with saree, which was tied with fan. The foot of the deceased were touching the floor and she was in standing position. Then she removed the saree and kept the body on the floor with the help of P.Ws.1, 5 and 7. In the cross examination, she also admitted that earlier the deceased consumed pesticide as they refused to perform her marriage with the accused and that the deceased was very sensitive and was having psychological feeling exclusively if her desire was not fulfilled. 11. P.W.5, who is the mother-in-law of P.W.2, deposed that on the date of incident at about 5.00 a.m on hearing the cries she entered the house of P.W.2 and found the deceased in hanging position. 12. P.W.7, who is the neighbor of P.W.2, deposed that on hearing the cries from the house of P.W.2, he went to their house and found the deceased in hanging condition with saree, which was tied to the ceiling fan. He further deposed that himself, P.W.2, P.W.1 and P.W.5 shifted the dead body of the deceased to kitchen room and kept the same on the floor. 13. P.W.9 is the then Panchayat Secretary, who acted as a mediator to the scene of observation and the inquest. In his cross-examination, he stated that from the disk of the fan the floor is at the distance of 7 feet 4 inches. He admitted that as per column No.3 of inquest report, the mother of the deceased (P.W.2) observed that the deceased died due to hanging by herself and the body was suspending in the air. 14. P.W.11-the doctor, who conducted postmortem examination over the dead body of the deceased, issued Ex.P.8-postmortem certificate opining that the cause of death was asphyxia due to throttling. In the cross-examination, she admitted that hyoid cartilage was not damaged and that she did not mention in the post mortem certificate whether hyoid bone fracture is inword or outword. 15. In Ex.P.6-scene observation report, it is mentioned that the fan is at a height of 7 feet 4 inches from the floor; that there is black contusion mark from the back of the neck upto throat of the deceased and that the end of the saree at the knot point of the fan was cut and the said saree and one wooden stool, which was situated in the said room, were seized by the S.I of Police before mediators. But, Ex.P.8-post mortem certificate does not disclose any such injury as stated in Ex.P.6, and it discloses hyoid fracture on right side. In Ex.P.7-inquest report, at Column No.VII it is mentioned that white liquid was flowing from the mouth and nose of the deceased. 16. From the above evidence, it is clear that except P.W.2, no other witnesses spoke about the accused visiting the house of P.W.2 on the date of offence at 2.00 a.m., and leaving the place of occurrence after the death of the deceased. Admittedly, P.W.1 stated that his mother did not inform him about the incident till he woke up after hearing the cries, whereas P.W.2 stated that the accused came to her, woke up her and requested to come down from the upstairs and then she came down, entered the house and found the deceased hanged with saree. Then she removed the saree and kept the dead body of the deceased on the floor with the help of P.W.1, P.W.5 and P.W.7. When the accused himself informed about the commission of suicide by the deceased to P.W.2, there is no necessity for him to ran away from the place of occurrence and he could have participated in removing the saree and keeping the dead body on the floor. When the fan is at a height of 7 feet 4 inches and wooden stool was also noticed near the dead body in the pooja room, the same itself show that the accused and the deceased were not in the bedroom, as stated by P.W.2. If the accused murdered the deceased by strangulating and hanged the body in pooja room, how the dead body was shifted to pooja room was not properly explained by the prosecution. Further, from the evidence of P.Ws.1 and 2 it is clear that the deceased was suffering with psychological pressure and once she attempted to commit suicide by consuming pesticide and that because of her ill-health and abortion, she stayed at her mother’s house for one year. In the inquest report also it is mentioned that white liquid was flowing from the mouth and nose. Therefore, it can safely be held that the death of the deceased was due to hanging but not strangulation. 17. Further, in Dr.K.S.Narayan Reddy’s Medical Jurisprudence and Toxicology, to a question as to whether death was caused by strangulation or not, at Table 24-1, he has given the difference between hanging and strangulation. At Sl.No.14 of the said table, it is mentioned that saliva often runs out of mouth in case of hanging, whereas in case of strangulation by ligature, saliva would be absent. 18. In view of the above, and since the prosecution miserably failed to prove the presence of the accused at the house of P.W.2 at the time of occurrence and that he murdered the deceased and hanged the dead body in the pooja room, we are of the opinion that it is unsafe to convict the accused based on the evidence of P.Ws.1 and 2. 19. In the result, the Criminal Appeal is allowed. The conviction and sentence recorded by the IV Additional District and Sessions Judge (Fast Track Court), Tanuku, in S.C.No.254 of 2006 against the appellant/accused for the offences punishable under Sections 498-A and 302 I.P.C., are set aside and he is acquitted of the said charges. He shall be set at liberty forthwith, if he is not required in any other crime. The fine amount, if any, paid by the appellant, shall be refunded. ____________________ A.GOPAL REDDY, J ____________________ RAJA ELANGO, J Dt.28.06.2011 va