THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY Crl.A.No.1053 of 2007 & Crl.Rc.No.843 of 2005 COMMON JUDGMENT: (per the Hon’ble Justice G.Krishna Mohan Reddy) Crl.A.No.1053 of 2007 1. This Criminal Appeal is preferred under Section 378(3) and (1) Cr.P.C. for setting aside acquittal recorded against the respondents-accused (for short ‘the accused’) in S.C.No.40 of 2001 on the file of V Additional Sessions Judge, West Godavari, Eluru vide judgment dated 8.2.2005. Crl.Rc.No.843 of 2005 2. This revision is filed by the defacto-complainant contending that there is evidence to the effect that the cause of death of the deceased was strangulation of her neck and the marriage between the deceased and A1 took place in the year 1994 and the deceased died on 18.6.2000, thereby the case falls within the ambit of Section 304-B read with Section 113-B IPC and she and P.Ws.1 and 2 gave satisfactory evidence that the deceased used to inform them about the harassment by the accused and the Court below failed to appreciate the matter properly. 3. The appellant is the complainant and the respondents 1 to 7 are the Accused in the case. The parties hereinafter referred to as they are arrayed in the sessions case. 4. The accused were tried for offences punishable under Section 498-A and 302 read with Section 34 IPC. As A5 in the case reported dead during the pendency of the case, the case against her was abated. 5. Before going into the merits of the case or merits of the judgment, it is necessary to note the brief facts of the prosecution case. A1 to A8 are the residents of Eluru. A2 and A4 are the brothers, A3 is the sister and A5 is the mother of A1 and A6 is the wife of A4, whereas A7 and A8 are their close relatives and all of them used to reside under one roof with common mesh. A1 was married to late Smt.Kunisetti Nagamani (deceased) (for short ‘the deceased) in the year 1993. After the marriage, the deceased joined the matrimonial house. But from the beginning A1 to A8 used to harass the deceased to bring money from her parents following which the deceased put up a proposal to set up a separate family along with A1, by reason of which, A1 to A8 bore grudge against her and then all of them harassed her to give up the proposal, but she did not accede to the demand. Thereby, A1 to A3 hatched a plan to kill her and in pursuance of the plan, on 18.6.2000 at about 5.30 p.m., A1 called the deceased into their room and while talking to her, he called A2 to A8 and made her to fall down and than A1 and A2 tightened her neck using saree while A5 closed her mouth and A3 to A7 pressed her hands, A8 caught hold of her neck and A4 and A6 pressed her legs and caused her instantaneous death. Thereafter, they created a story as if the deceased committed suicide by hanging and took her to a private Doctor (P.W.5) not to expose the crime committed by them. They informed about her death to the defacto-complainant Kurakula Venkataramana, father of the deceased and resident of Mallikarjuna Peta, Akulavari street, Vijayawada I Town, without incriminating themselves in the matter. Later, the defacto-complainant gave report to the I Town Police Station, Eluru, on the basis of which, the case was registered in Crime No.140 of 2000 under Section 175 Cr.P.C. by P.W.9 Sub- Inspector of Police and he took up the investigation of the case. Thereafter, a requisition was sent to the local Mandal Revenue Officer (P.W.6) to conduct inquest over the dead body under Section 174 Cr.P.C. and accordingly inquest was conducted over the dead body in the presence of mediators and then it was opined that the deceased committed suicide by hanging herself. Further, the Sub-Inspector of Police-P.W.9 visited the scene of offence and conducted panchanama and seized broken bangle pieces and also saree lying under a cot in the presence of mediators and got drafted Ex.P9 report accordingly. The dead body was sent to the Government Hospital, Eluru for autopsy, where Dr.P.Sailaja, Civil Assistant Surgeon (P.W.7) conducted post- mortem and issued certificate opining that the deceased appears to have died of “asphyxia” because of application of pressure over her neck around 24 hours prior to the examination and further a questionnaire was sent for which she gave clarification that it was a homicidal death. Further, P.W.10 took up and conducted the remaining part of the investigation of the case during the course of which, he arrested A1 to A8 on 23.6.2000 at 5.00 p.m. and sent them for judicial custody. Further the investigation of the case reveals that A1 to A8 committed the offences punishable under Sections 498-A and 302 IPC. 6. To establish the charges, the prosecution examined P.Ws.1 to 11 and got marked Exs.P1 to P22 and M.Os.1 to 9 and for the defence, D.W.1 was examined, whereas the defence version is that a false case was foisted and false evidence was recorded. 7. Therefore, for the disposal of the appeal, it is to be mainly examined as to; (1) Whether the prosecution placed sufficient evidence to prove (a) the charge under Section 498-A IPC and (b) the charge under Section 302 IPC. (2) Whether the acquittal of the charges recorded by the trial Court is sustainable. 8. POINT No.1 With regards to the charge under Section 498-A IPC, the learned Public Prosecutor contends that the trial Court dismissed the charge mainly on the ground that the witnesses examined in that behalf deviated from their statements under Section 161 Cr.P.C. and in fact, the Mandal Revenue Officer recorded their statements which were comprehensive in nature prior to the recording of their statement under Section 161 Cr.P.C. and hence the contradictions or omissions pointed out with reference to their statements under Section 161 Cr.P.C. statements need not be gone into and the evidence of the witnesses is trustworthy to prove the charge. It is specifically contended by him that the statements recorded by the Mandal Revenue Officer are not hit by Section 161 Cr.P.C. or Section 162 Cr.P.C. statements. 9. Section 161 Cr.P.C. postulates examination of witnesses by police and sub-section (1) thereof mandates that any police officer making an investigation, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case and sub-section (2) provides that such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to penalty or forfeiture and sub- section (3) provides that the police officer may reduce into writing any statement made to him in the course of an examination under this section: and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records. 10. Section 162 Cr.P.C. contemplates statements to police not to be signed-use of statements in evidence and sub-section (1) thereof provides that no statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided at any inquiry or trial in respect of any offence under investigation at the time when such statement was made, provided that when any witness is called for the prosecution is such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872 (I of 1872), and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any mater referred to in his cross-examination. 11. Section 162 Cr.P.C. is only with reference to the statements made by witnesses to police in a criminal case during the course of the investigation of the case. It does not cover any statements of the witnesses recorded by an M.R.O. though it was during the course of investigation of the case. In fact, the statements of P.W.1 the defacto-complainant and P.W.2 recorded by him prior to the recording of the statements under Section 161 Cr.P.C. were marked as Exs.P2 to P4, which are in fact comprehensive to ignore the contradictions and omissions referred with reference to their statements under Section 161/162 Cr.P.C. 12. Further, P.W.1 deposed that the marriage between A1 and the deceased took place on 3.3.1994 and then they gave Rs.28,000/- towards dowry Rs.3000/- towards ‘adapaduchu lanchanam’, three sovereigns of gold etc., and A1 looked after the deceased well for one year and thereafter A1 to A8 harassed her to bring additional dowry which circumstances, the deceased informed during her visits to their house. P.W.2 sister of the deceased and P.W.3 their maternal uncle deposed similarly. 13. There is no good basis to accept that any dowry was given to A1 at the time of marriage. Further, P.Ws.1 to 3 only gave very bald statements to take cognizance of them. If their evidence is true, their natural conduct would have been to convene mediations to score out her problems about which there is no evidence for which adverse inference is to be drawn. Their evidence provides that they simply kept quite without taking positive steps in that behalf which is quite unnatural. Hence the charge under Section 498-A IPC is not established. 14. POINT No.2 With regards to the charge under Section 302 IPC, there is no direct evidence and medical evidence coupled with other circumstantial evidence is to be taken into consideration. 15. Learned Public Prosecutor submits that the medical evidence is that no ligature was brought and there was 1½” width ligature mark across the front of the neck of the deceased and absence of ligature extending beyond obviously suggests that it is not a case of hanging and it is a case of strangulation and there is ample evidence that A1 to A8 were in the house when the incident took place which sufficiently establishes that it is a case of murder by all of them. 16. Here the medical evidence is important. It is the testimony of P.W.7- Civil Assistant Surgeon, Government Head Quarters Hospital, Eluru, which is relevant here that herself and three more Doctors conducted the post-mortem examination over the dead body at the Mortuary District Head Quarters Hospital, Eluru on 19.6.2000 and in fact the dead body ‘c’ ligature was not brought in situ and there was a ligature mark of 1½ width lying across the front of the neck in an oblique fashion from right to left side and it is absent at the back of the left ear and on opening the skin, the subcutaneous tissues were congested with blood cots and ribbon muscles were deeply congested with blood clots seen and laryngeal mucous was congested and there were two contusions ¼” 3” below the right breast and the other one of ¼” x 4” below the left breast in a horizontal fashion. Further, on the internal examination of the body, she found that the hyoid bone was fractured in a linear fashion in the center of it with small blood clots seen and so on and she opined that the deceased appears to have died because of ‘asphyxia’ due to pressure over the front of the neck around 24 hours prior to the post-mortem examination. In her cross-examination, she deposed that it was not mentioned in the post-mortem report as to what material was used for the strangulation of the deceased and she denied suggestion that the contusions were caused while the dead body was brought to the hospital and immediately she also deposed that those injuries were possible because of wearing of tight blouse. 17. There is no finding in the medical evidence specifically as to whether it is a case of suicide or homicide. But quite surprisingly, it appears that a question was put to her as to whether any material used for the strangulation of the deceased was noted in the post-mortem report or not. Emphatically as per the charge sheet/prosecution version, a questionnaire was sent to the Medical Officer to ascertain the nature of death, for which she replied that it was a case of homicidal death, but she was not examined with reference to that aspect. It clearly appears that necessary measures were not taken while examining the Medical Officer on behalf of the prosecution with regards to that aspect. 18. The learned Public Prosecutor has brought to the notice of the Court about difference between hanging and strangulation referring to Medical Jurisprudence and Toxicology (Law Practice & Procedure) by Dr.K.S.Narayan Reddy, as given in the table below: Trait Hanging Strangulation by ligature 1. Ligature mark: It is oblique, does not completely encircle the neck; usually between the chin and larynx. The base is pale, hard and parchmen-like. It is transverse, completely encircling the neck below the thyroid cartilage. The base is soft and reddish. 2. Abrasions and ecchymoses: About the edges of ligature mark not common. About the edges of the ligature mark are common. 3. Bruising: Of the neck muscles less common. Of the neck muscles more common. 4. Neck: Stretched and elongated. Not stretched or elongated. 5. Subcutaneous tissues: White, hard and glistening under the mark. Ecchymosed under the mark. 6. Hyoid bone: Fracture may occur. Fracture is uncommon. 7. Thyroid cartilage: Fracture is less common. Fracture is more common. 8. Larynx and trachea: Fracture rare. Fracture may be found. 9. Emphysematous bullae: Not present on the surface of the lungs. Very common on the surface of the lungs. 10. Carotid arteries: Damage may be seen. Damage is rare. 11. Face: Usually pale and petechiae are not common. Congested, livid and marked with petechiae. 12. Signs of asphyxia: External signs less marked. External signs well- marked. 13. Tongue: Swelling and protrusion is less marked. Swelling and protrusion is more marked. 14. Saliva: Often runs out of mouth Absent. 15. Bleeding From the nose, mouth and earns not common. From the nose, mouth and earns common. 16. Involuntary discharge. Of faeces and urine less common. Of faeces and urine more common. 17. Seminal fluid At glans is more common. At glass is less common. 19. Therefore, the Medical Officer has to clarify the question as to whether it is a case of homicide or suicide with references to the aspects noted above. 20. It is also contended by the learned Public Prosecutor that no contusions are possible by wearing tight blouse and it also suggests that it is purely a case of murder. 21. Therefore, it is required to remand the matter to the Court below for the purpose of determining the question as to whether it is a case of homicide or suicide recalling the Medical Officer in the light of the contentions raised by the learned Public Prosecutor and also the corresponding observations made above. 22. With regards the application of Section 304-B read with Section 113-B IPC, significantly the F.I.R. was registered under Section 304-B, but in the charge sheet that was excluded and Section 302 IPC was included and further only charge under Section 302 IPC apart from Section 498-A IPC was framed and in fact Crl.M.P.No.283 of 2004 was filed to frame charge under Section 304-B IPC, but it was dismissed and that order became final and in the same lines, necessary evidence was recorded and hence, the question of considering the scope of Section 304-B and 113-B IPC with reference to this case does not arise at all. 23. In the result, the appeal is allowed in part setting aside the acquittal recorded against the Accused so far as the charge under Section 302 IPC and it is dismissed insofar as the charge under Section 498-A IPC is concerned and the matter is remanded to the Court below to determine the question as to whether it is a case of homicide or suicide recalling the Medical Officer and further examining her and also taking into consideration relevant circumstances and measures independently in the light of the circumstances enumerated above. Crl.Rc.No.843 of 2005 This revision is disposed of in the light of the observations made above. ______________ V.ESWARAIAH, J ________________________ G.KRISHNA MOHAN REDDY, J Date: 2.8.2011 DA