HON’BLE SRI JUSTICE C.PRAVEEN KUMAR AND HON’BLE SMT. JUSTICE KONGARA VIJAYA LAKSHMI CRIMINAL APPEAL No.1076 of 2012 JUDGMENT : (per Hon’ble Sri Justice C.Praveen Kumar) The sole accused in Sessions Case No. 99 of 2011 on the file of the VII Additional District and Sessions Judge, (FTC), Nizamabad at Bodhan is the appellant herein. He was tried for the offence punishable under Section 302 IPC, for causing the death of his wife, Rangari Nagalaxmi on 4th January, 2011. Vide judgment dated 09.08.2012, the learned Additional Sessions Judge convicted the accused under Section 302 IPC and sentenced him to suffer ‘imprisonment for life’ and to pay a fine of Rs.100/ -, in default to suffer simple imprisonment for a period of fifteen days. 2. The facts, as culled out from the evidence of the prosecution witnesses are as under: The accused is the husband of the deceased, while PW1 is the brother of the deceased. PW2 is the house owner where the accused and deceased used to live. PW3 is the wife of PW2. PW4 and PW5 are the neighbours of the deceased. The marriage of the accused and deceased took place about three years prior to the date of incident. It is the case of the prosecution that after the marriage, the deceased and accused lived at Banswada. The 2 evidence of PW1 would show that the deceased used to move here and there with one Pushpa, and even after marriage, he had not given up bad activities, inspite of advice. According to him, on 04.01.2011, when the deceased wanted to go to a movie, the accused refused, and on the intervening night of 04.01.2011 and 05.01.2011, the accused caused the death of the deceased, which fact was informed to him by the neighbours. Immediately, he proceeded to the scene of offence and noticed the body of the deceased lying in the house with a towel around the neck, and there were also injuries on her leg. 3. On the next day, i.e., 05.01.2011, at about 12 noon, PW1 went to the police station and lodged a report (Ex.P1) before PW12-the Sub Inspector of Police, which came to be registered as Crime No. 3 of 2011 under Section 498-A and 302 IPC. Ex.P9 is the F.I.R. Thereafter, further investigation in this matter was taken up by PW13-the Inspector of Police. According to him, on receipt of the F.I.R., he proceeded to the scene of offence and prepared a panchanama of the scene of offence, which is marked as Ex.P4. Thereafter he requested the Mandal Revenue Officer to conduct inquest over the dead body of the deceased. He also got the dead body photographed apart from recording the statements of PWs 2 to 6 recorded. In the meantime, PW11-the Mandal Revenue Officer came to the scene of offence and conducted inquest over the dead body of the deceased. Ex.P7 is the inquest report. PW12 also got the rough sketch of the scene of offence prepared, which is 3 marked as Ex.P5. Thereafter, he sent the dead body for postmortem examination. 4. PW8-the Civil Assistant Surgeon, Primary Health Centre, Kishannagar conducted autopsy over the body of the deceased on 05.01.2011 at 4.30 p.m., and issued Exhibit P6-the Post Mortem Report. According to him, the cause of death was due to asphyxia causing cardio pulmonary arrest due to strangulation. According to him, the towel shown to him is sufficient to cause the ligature mark on the neck of the deceased. 5. Later on, PW13 claims to have arrested the accused on 11.01.2011 at Old Banswada near Chaman School, and on interrogation, the accused is said to have confessed about the commission of the offence. The confession made led to the recovery of M.O.1-a white towel, said to have been used in the commission of the offence. 6. After completing the investigation, a charge sheet came to be filed, which was taken on file as PRC No. 9 of 2011 on the file of Judicial Magistrate of First Class, Banswada. After complying with the requirements of Section 207 of Cr.P.C., the matter was committed to the Court of Sessions and the same came to be numbered as S.C.No. 99 of 2011 on the file of Vii Additional District and Sessions Judge (FTC), Nizamabad at Bodhan. Basing on the material on record, charges for the offences punishable under Sections 498-A IPC and 302 of IPC were framed, read over and 4 explained to the accused, to which he denied and claimed to be tried. 7. In support of their case, the prosecution examined PWs.1 to 13 and got marked Exs.P1 to P9 and M.O.1. Out of the 13 witnesses examined by the prosecution, PWs 5, 6 and 7 did not support the prosecution case and were treated hostile by the prosecution. After the closure of evidence, the accused was examined under Section 313 Cr.P.C., with reference to the incriminating circumstances appearing against him in the evidence of the prosecution witnesses, to which he denied. No oral or documentary evidence was adduced by the accused in support of their defence. 8. Basing on the evidence of PWs 1 to 3 and in the absence of any explanation given by the accused as to how the body of the deceased was found in the house, the Court below convicted the accused under Sections 498-A and 302 IPC. Challenging the same, the present appeal came to be filed through legal aid. 9. The learned counsel for the appellant mainly submits that there is any amount of doubt with regard to the manner in which the incident took place. According to her, the entire case has been cooked up, to suit the prosecution case. PW13 claims to have arrested the accused on 11.01.2011 at Old Banswada and pursuant to the confession made by the accused, he claims to have recovered the towel which is said to have been used in the commission of the offence. But the evidence of all the witnesses 5 shows that the accused was found weeping at the scene of offence and on arrival of police, he was taken into custody, and the towel, which is alleged to have been recovered by PW13 on 11.01.2011 was practically present over the body of the deceased, and as such, the alleged recovery is far from truth. She would further contend that even otherwise, having regard to the manner in which the incident occurred, the nature of offence has to be scaled down. 10. The learned Public Prosecutor opposed the same contending that in the absence of any explanation given by the accused as to how the body of the deceased was in the house, the trial court rightly convicted the accused under Sections 498-A and 302 IPC. 11. The point that arises for consideration is: “ whether the accused can be convicted for the offence under Sections 498-A and 302 IPC” . 12. In order to appreciate the same, it would be useful to refer to the oral evidence of PWs 1 to 3 and also the contents of the F.I.R given by PW1. Before dealing with the oral evidence, it would appropriate to refer to the contents of the F.I.R. As per the F.I.R., which was given at 12 noon on 05.01.2011, the marriage between the accused and deceased took place around 3 ½ years prior to the date of incident, but, in view of the fact that the deceased was addicted to bad habits, both of them were staying in Banswada. On 05.01.2011 morning, PW1 received a phone call stating that his sister(deceased) died. He went to Banswada and 6 found the body of the deceased in the house in which the accused and deceased were living, and also found a ligature mark around the neck of the deceased. When PW1 asked the accused(husband) to tell the truth, the accused is said to have replied that the deceased was habituated to bad habits and inspite of his advice many times in the past to give up the said habits, she failed to do so. It is further stated that on 04.01.2011, in the evening, one male person made a phone call to her and asked her to come to a movie. Immediately thereafter, she got ready to go to the movie with the said person. When the accused objected her in going out with the said person, she rejected his request. At that point of time, the accused decided to kill her, as she was not listening to him and continuing with her had habits. Around 5 p.m., he is said to have tied a towel around her neck and killed her. On the next day, he made a phone call to the friend of the deceased by name, Nagamani and informed her that the deceased committed suicide. Basing on these contents, the F.I.R was lodged. 13. The contents of the report disclose that the accused is said to have informed PW1 as to why and under what circumstances he killed the deceased. It appears that the deceased was addicted to bad habits and was continuing the same inspite of warning her, which provoked the accused put an end to the life of the deceased. 14. Coming to the oral evidence, PW1, in his evidence, deposed that even prior to her marriage, he asked the deceased to give up bad activities, but, she did not heed to his advice. In the cross- 7 examination, he stated that on 04.01.2011, by the time he reached the scene of offence, the police were already present and the accused was there in their custody. He admitted that the accused himself informed him about the commission of the offence. PW1 further admitted that the deceased was habituated to bad habits and because of that, the accused has committed the murder. 15. The admissions elicited from PW1 show that by the time he went to the scene of offence, the police were present and the accused was very much in their custody. He also admits that the report was drafted by the Sub Inspector of Police, Banswada. It was further elicited that the confession made by the accused was while he was in the presence of the police. 16. PW2, in his evidence, deposed that the accused and deceased stayed in their house for one month three days and there were frequent quarrels between the accused and deceased. She further stated that she saw the accused and deceased in the house at about 5 p.m. on the date of incident and on the next day at 6 a.m., another tenant of their house informed her about the incident. After receiving the information, she, along with the other tenant went to see the deceased and found her dead body lying on a mat and the accused was weeping. To a suggestion that the accused was not present in the house on that day, was denied. The suggestion that the case came to be lodged at the instance of PW1, was also denied. 8 17. PW3, in her evidence, deposed that the accused and deceased used to quarrel frequently and as such, she asked them to vacate the house. On the date of incident, the accused and deceased were quarrelling from morning to evening and even during night time. On the next day, at about 6.30 a.m., she found the accused weeping and he informed her that his wife has not woke up and that she died. PW3 and others went there and saw the dead body which was lying on the mat and there were some marks on the neck of the dead body. In the cross-examination, it was suggested to PW3 that the accused was not present in the house at the time of incident, but the same was denied. However, it was elicited in the evidence of PW3 that there were continuous quarrels between the accused and deceased. 18. The evidence of PW4 toes in line with the evidence of the other witnesses. In his chief examination, PW4 categorically deposed that on the night of the incident, both the accused and the deceased quarrelled with each other. 19. Though PWs 5, 6 and 7 were examined as witnesses to the incident, they did not support the version of the prosecution, and as such, were treated hostile by the prosecution. 20. From the evidence of PWs 1 to 4, it is clear that the accused was present in the house on the fateful day and there was a continuous quarrel between the accused and deceased on that day. Coming to the Extra Judicial confession said to have been made by the accused before PW1, it is to be noted that even as per the 9 version of PW1, by the time he went to the house of the deceased, the police were present and the accused was in their custody. While in the custody of the police, the accused is said to have disclosed about the commission of the offence. Therefore, this circumstance of the accused making a confession, while in the custody of police and treating the same as an extra-judicial confession made before PW1, cannot be accepted. Admittedly, the evidence of PW1 and also the evidence of the other witnesses establish that the accused was present at the scene of offence and was taken into custody by the police at that time. Therefore, the argument of the learned Public Prosecutor that the said statement has to be treated as an extra-judicial confession made before PW1, and can be made the basis to convict the accused, cannot be accepted. 21. The next circumstance, which is relied upon by the prosecution is the arrest of the accused and recovery of M.O.1- towel. Since the evidence of PW1 and other witnesses establishes that the accused was taken into custody on 5th January, 2011 while he was present at the scene of offence, the question of police arresting the accused on 11.01.2011 and recovering a towel alleged to have been used in strangling the deceased, does not arise. 22. As to the investigation in this case, it is only a table investigation and there is no explanation from the prosecution as to how they arrested the accused and recovered M.O.1-towel on 11.01.2011, when the evidence on record shows that the accused 10 was arrested on 05.11.2011 and M.O.1-towel was around the neck of the deceased even at the time of the inquest. Therefore, the said circumstance relied upon by the prosecution with regard to the arrest and recovery also becomes doubtful. 23. The only other circumstance which is sought to be pressed into service by the prosecution is the presence of the dead body in the house of the accused. There is no dispute with regard to the fact that the body of the deceased was lying in the house of the accused. The evidence of PWs 2 and 3 also establishes that the accused was present in the house on the date of incident. In fact, the evidence of PWs 2, 3 and 4 amply establishes that the accused was not only present in the house on that day, but, there were continuous quarrels between the accused and deceased. Apart from that, it is also to be noted that when PW1 and neighbours arrived at the scene of offence, the accused was by the side of the dead body and was weeping. Though he tried to establish his innocence by suggesting to the witnesses that he was not present at the time of the incident, the evidence of PWs 1 to 3 amply proves his presence in the house at the time of incident. 24. At this stage, the learned counsel for the appellant would contend that taking into consideration the circumstances under which the incident happened, at least, the nature of offence may be scaled down, to which the learned Public Prosecutor did not oppose. Therefore, the question is whether the offence said to 11 have been committed by the accused can be scaled down, having regard to the facts and circumstances of the case. 25. It is to be noted that the deceased was leading a very wavered life. The said fact is spoken to by PW1, who is the brother of the deceased. According to him, even prior to her marriage, the deceased was having bad habits. However, the accused married her. Even after marriage, the deceased did not change her attitude. The First Information Report given by PW1, which is on the basis of information furnished by the accused, shows that on the date of incident, the deceased received a phone call from a male person and wanted to go out to fulfill his request. The accused objected to the same and prevented her from going out. Thereafter, there was a quarrel between the accused and deceased. The fact that there was a quarrel between both of them was spoken to by PWs 2, 3 and 4, who are the owners and co- tenant of the accused and deceased. 26. Therefore, the evidence of PWs 2, 3 and 4 makes it clear that there was a quarrel between the accused and deceased and during the course of the said quarrel, the incident in question must have taken place. Thereafter, the accused did not escape, leaving the deceased. He was there sitting by her side and weeping till the arrival of the police. We are not very much concerned with the conduct of the accused in weeping by sitting on the side of the dead body of his wife, but, the circumstances under which the incident occurred, matters. 12 27. Having regard to the fact that there was a continuous quarrel between the accused and deceased and during the course of the said quarrel, the incident in question took place, we feel that the nature of offence under Section 302 IPC can be scaled down to that under 304 Part-I. 28. In the result, the Criminal Appeal is partly allowed. The conviction and sentence recorded against the appellant/ accused in the judgment dated 09.08.2012, in Sessions Case No.99 of 2011 on the file of the Court of the VII Additional District and Sessions Judge, (FTC), Nizamabad at Bodhan for the offence punishable under Section 302 I.P.C. is altered to one under Section 304 Part-I IPC. For the altered conviction, the appellant is sentenced to suffer rigorous imprisonment for a period of eight years. The period of remand underwent by him during investigation, trial and after conviction shall be given set off, under Section 428 Cr.P.C. Consequently, the appellant/ accused shall be set at liberty forthwith on completion of eight years rigorous imprisonment, if not required in connection with any other case. _________________________ JUSTICE C.PRAVEEN KUMAR _____________________________________ JUSTICE KONGARA VIJAYA LAKSHMI 03.01.2018 DMG