Andhra HC (Pre-Telangana)
Yamsani Ravinder (A.1) vs State Of A.P., Rep. By Its P.P.,High ... on 12 March, 2014
Bench: L.Narasimha Reddy, M.S.K.Jaiswal
THE HONBLE SRI JUSTICE L.NARASIMHA REDDY and THE HONBLE SRI JUSTICE M.S.K.JAISWAL Crl.Appeal No. 1753 of 2009 12-03-2014 Yamsani Ravinder (A.1) Appellant State of A.P., rep. by its P.P.,High Court of A.P., Hyderabad ...Respondent Counsel for the Appellant: Sri C.Vasundhara Reddy Counsel for respondent: Public Prosecutor <GIST: >HEAD NOTE: ?CASES REFERRED :. HON'BLE SRI JUSTICE L.NARASIMHA REDDY AND HON'BLE SRI JUSTICE M.S.K.JAISWAL Criminal Appeal No.1753 of 2009 Dated: 12.03.2014 JUDGMENT:
(Per Honble Sri Justice M.S.K.Jaiswal) The appellant Yamsani Ravinder along with his father, mother and three brothers were charge-sheeted by the Sub- Divisional Police Officer, Karimnagar, in Cr.No.13 of 2007 of Koheda P.S., alleging offences punishable under Sections 498-A, 302, 304-B and 201 of I.P.C. and Section 4 of the Dowry Prohibition Act. They were tried in S.C.No.129 of 2008 on the file of the IV-Addl.Sessions Judge, Karimnagar, and by Judgment, dated 23-11-2009, the appellant-A.1 was convicted for the offences punishable under Sections 498-A, 302 and 201 of I.P.C. He was sentenced to undergo rigorous imprisonment for one year and a fine of Rs.1,000/-, in default rigorous imprisonment for three months for the offence under Section 498-A I.P.C., imprisonment for life and a fine of Rs.3,000/-, in default rigorous imprisonment for six months for the offence under Section 302 I.P.C., and three years rigorous imprisonment and a fine of Rs.1,000/-, in default rigorous imprisonment for three months for the offence under Section 201 I.P.C. All the sentences were directed to run concurrently. A.1 was acquitted of the charges under Section 304- B of I.P.C. and Section 4 of the Dowry Prohibition Act. A.2 to A.6 were acquitted of all the charges. A.1 preferred this appeal challenging his conviction and sentences.
2. Facts in brief are as under:-
Lavanya (hereinafter referred to as the deceased), the daughter of the de facto complainant Amirishetti Rukma Rao (PW.1) was married to A.1 on 11-11-2000. Substantial amount of dowry, both in cash and kind, were said to have been given at the time of the marriage and still A.1 used to make additional demands for dowry, they were being met by the complaint, whereas the parents and brothers of A.1 (A.2 to A.6) used to instigate A.1.
On 28-1-2007, A.1 is said to have sent the deceased to her parents house to attend the engagement ceremony of her younger sister and thereafter, the parents of the deceased requested A.1 to send the deceased for making purchases in relation to the marriage, but A.1 refused to send her and instead, beat the deceased.
On 4-2-2007 at about 6.00 a.m., in the morning, the deceased is stated to have informed her parents that A.1 had gone to Karimnagar and her in-laws were not allowing her to go over to her parents house. On 5-2-2007, the deceased informed her parents that A.1 beat her throughout the night. On 6-2-2007 at about 2.00 a.m., in the mid-night, A.1 rang up and informed the parents that the deceased was not seen since the previous evening. They rushed to Thangallapalli village at about 6.00 a.m., and started searching for the deceased. At about 11.00 a.m., on 6-2- 2007, they found the dead body of the deceased in the well of A.1.
With the above allegations, the de facto complainant PW.1 filed a complaint Ex.P.1. Crime was registered and investigation was taken up. The S.I. of Police, Koheda P.S. PW.11 immediately visited the scene of offence. The Executive Magistrate P.W.9 visited the scene and conducted the inquest panchanama over the dead body of the deceased. Post-mortem examination was conducted by a team of Doctors comprising of PW.10 and another. The cause of death was mentioned as cardio respiratory arrest due to asphyxia caused by manual crushing of throat and smothering. Further investigation was taken up by the Sub-Divisional Police Officer (PW.12) and the statements of the witnesses were recorded. A.1 to A.6 were arrested and remanded to juridical custody. A.1 is said to have confessed that on 5-2-2007 at about 8.00 p.m., he throttled and smothered the deceased to death and threw the dead body in the well. Charge-sheet was filed alleging that the accused have committed the crime and pleading that they are liable to be punished. Charges framed accordingly.
3. The accused denied the allegations. PWs.1 to 12 were examined, Ex.P.1 to Ex.P.18 were filed and M.Os.1 to 3 were taken on record. When examined under Section 313 Cr.P.C., the accused disputed the evidence on record. The result of the case has been mentioned at the threshold.
4. Learned Counsel for A.1 submits that there are no direct witnesses to the occurrence, and though the case rests on circumstantial evidence, the circumstances relied upon by the prosecution are not proved, much less they are sufficient to base the conviction against A.1. It is pleaded that the highly discrepant and interested testimony of the parents PWs.1 and 2 is relied upon by the learned trial Judge for convicting A.1 but that very evidence has been disbelieved insofar as A.2 to A.6 are concerned. It is also pleaded that the trial Court did not properly appreciate the material on record and has erroneously drawn presumption under Section 106 of the Evidence Act for holding the appellant guilty.
5. Learned Additional Public Prosecutor submits that the evidence of the parents of the deceased viz., PWs.1 and 2 has established that the deceased was being subjected to harassment demanding additional dowry and when that was not being met, they used to subject her to harassment and treating her with cruelty. It is further submitted that the evidence on record clearly shows that the accused have refused to send the deceased to her parents house as requested in connection with the marriage of her younger sister and instead the husband A.1 beat the deceased on the previous night. She contends that the evidence also shows that on 5-2-007 the deceased was noticed by neighbours in pensive mood and at about 2.00 a.m., on 6-2-2007, A.1 informed her parents that the deceased is not to be seen. According to her, the circumstances that her dead body was found in the well of the accused, which was at a distance of 50 yards from their house and the medical evidence on record indicating that the death was due to throttling and smothering; clearly show that it is A.1 who has caused the death of the deceased and threw the dead body in the well. She argued that on the basis of such strong evidence, the trial Court has found A.1 guilty of the charges and gave the benefit of doubt to his parents and brothers.
6. The point for consideration is as to whether the prosecution has proved its case against A.1 beyond reasonable doubt so as to sustain the conviction and sentence or whether the Judgment of the trial Court deserves to be set aside, modified or varied?
7. Point:- A.1 and deceased were married on 11-11-2000. They had two sons. The deceased was the daughter of PWs.1 and 2, who are residents of Pallepahad village, Thoguta Mandal of Medak District. The deceased, and A.1 and his parents were residents of Thangallapalli village. In connection with the marriage of her younger sister, the deceased wanted to go to her parents house for helping them in making the purchases. That is said to have been opposed by A.1 who demanded money to clear off his debts. The nature of harassment, which is said to have been caused to her, was informed by her to her parents through telephone, both on 4-2-2007 and 5-2-2007. The deceased went missing from the evening of 5-2-2007 and the dead body was found in the well at about 11.00 a.m., on 6-2-2007. It is alleged that A.1 killed the deceased and dumped the dead body in the well with the instigation of the other accused.
8. The prosecution examined the father and mother of the deceased as PWs.1 and 2. The neighbouring residents of the house of the accused are examined as PWs.3 and 4. The previous landlord where A.1 and the deceased lived as tenants has been examined as PW.5. The evidence of these five witnesses is material having direct bearing on the incident proper.
9. Other evidence comprises of PWs.6 to 12, who are the photographer, scene of offence panchas, inquest panch, panch witnesses for the alleged confession, the Medical Officer who conducted the autopsy and the Investigating Officers.
10. Firstly, the evidence of the independent witnesses viz., PWs.3, 4 and 5 may be seen. PW.3 deposed that he was informed by his wife that the deceased is not being seen in her house and she is being searched. He further deposed that on the next day morning the parents of the deceased came and he along with all others searched for the deceased and the dead body was found in the well, which was at a distance of 50 yards from the house of the accused.
11. PW.4, another neighbouring resident, deposed that the deceased and A.1 were living happily and about 10 or 15 days prior to the death, the deceased came to their house, but did not inform of any harassment. He further deposed that next day morning when he heard about the death of the deceased, went there and noticed the same.
12. PW.5 is another independent witness in whose house for sometime the deceased and A.1 lived together. He deposed that A.1 and his wife lived happily and they were living as tenants in the ground floor and the deceased did not inform them anything about the harassment. He claims that he came to know about the death of the deceased.
13. The three independent witnesses, who are the persons residing in the immediate neighbourhood, are examined to throw light on the harassment alleged to have been meted out by the deceased in the hands of the accused. Unfortunately, all the three of them turned hostile and denied the case of the prosecution and also resiled from their previous statements, which are marked as Exs.P.2, P.3, P.4 and P.5. In the cross-examination, they categorically denied that they know about the harassment of the deceased at the hands of the accused and deposing falsehood to help the accused.
14. Then remains the evidence of PWs.1 and 2, who are the father and mother of the deceased.
15. Insofar as the incident is concerned, PWs.1 and 2 have no direct knowledge. As earlier noticed, they were informed at about 2.00 a.m., on 06-02-2007 by none other than A.1 that the deceased was found missing from the evening and that they are searching for her. Probably, this information might have been given by A.1 to PWs.1 and 2 soliciting information as to whether their daughter- deceased came to their house, more particularly, in view of the fact that the deceased wanted to and her parents requested for her presence on 05-02-2007 for making purchases of gold and cloths for the ensuing marriage of their other daughter. The evidence of PWs.1 and 2 is with reference to the alleged harassment by the accused prior to her death. Since their daughter died under suspicious circumstances, it is nothing but natural for them to suspect the involvement of the accused. In order to rely upon the testimony of such witnesses, the sine quo non is that it should be consistent, cogent and should accord with the natural human conduct.
16. Ex.P.1 is the complaint, which PW.1 lodged with the police at about 12.00 noon on 06-02-2007. After referring to the previous demands of amount and it being paid to A.1, PW.1 stated as under:-
The said fact came to the knowledge of my wife and sons, but under the unavoidable circumstances I convinced my daughter to save her marital life. When I asked my son-in- law, he threatened me that he would commit suicide. On one occasion, when he stayed in our home for 15 days, he harassed my daughter. At that time, I gave an amount of Rs.10,000/- to him to run a kirana shop. On 28-01-2007, when I asked, he sent my daughter on the engagement ceremony of my younger daughter. Later, when I asked him to send my daughter for purchasing clothes, gold etc., he demanded to clear off the debts under additional dowry amount, beat my daughter and did not send her to my house. My daughter informed the matter to me over phone. On 4-2-2007, while I was intending to go and bring my daughter, at 6.00 a.m., my daughter informed me over telephone that my son-in-law went to Karimnagar and her parents-in-law and brothers-in- law are not allowing her to go. Again on 5-2-2007, she informed me over telephone that my son-in-law beat her throughout the night in the presence of all others.
17. As against the above, the complainant-PW.1 deposed as under:-
All the accused are parents and brothers of A.1. All of them are living together in one house. A.1 has spent the amounts given by me and again harassed my daughter and thereby she came to my house and informed to me and my wife and children about the harassment. Then I have consoled my daughter and sent to her house. Thereafter, A.1 came to my house and stayed in my house and even at my house he harassed my daughter with a demand of additional dowry for running kirana business on that I gave Rs.10,000/-. Thereafter, at the time of engagement of the marriage of my second daughter on 28-1-2007 on my request, A.1 sent my daughter Lavanya. Thereafter again I have requested A.1 to send Lavanya for the purpose of purchasing the clothes and gold for the marriage of my second daughter. And at that time, A.1 did not send my daughter Lavanya and on enquiry my daughter informed me on phone that A.1 did not allow her to come to my house and he left to Karimnagar and his parents also not permitting her to come to my house.
18. In the cross-examination, PW.1 admitted that he did not disclose about the said demands of A.1 to anybody and therefore there were no panchayats. Similarly, he also admits that he did not approach the police prior to this incident.
19. The mother of the deceased was examined as PW.2. She has stated as under:-
All the accused are parents and brothers of A.1. All of them are living together in one house. A.1 has spent the amounts given by us and again harassed my daughter and thereby she came to our house and informed us about the harassment. My daughter is in our house for six months and A.1 came to our house and threatened us to commit suicide by consuming pesticide. Therefore, have consoled our daughter and sent with A.1. Thereafter, A.1 came to my house and stayed and even at that time he harassed our daughter with a demand of additional dowry for running kirana business on that we gave Rs.10,000/-. Thereafter, at the time of engagement of the marriage of my second daughter, A.1 sent my daughter Lavanya.
20. What is noticed from the perusal of Ex.P.1 and the evidence of PWs.1 and 2 is that basing on the said evidence it is difficult to conclude that it is A.1, who is in any way responsible for the unfortunate death of the deceased. It is also gathered there from that the relations between the two families, vis--vis, in between A.1 and the deceased were not so strained for the reason that even a week prior to the incident, A.1 and the deceased came over to the house of PWs.1 and 2 and the deceased also participated in the engagement ceremony of her sister on 28-01-2007. If anything serious was brewing in between the couple, it would have certainly come to the knowledge of the people residing either in the village of the accused or the prosecution witnesses. Significantly, PWs.1 and 2 have two grown up sons. Even they were not examined to speak about the nature of disputes between A.1 and the deceased. It is also noticed from the evidence that just few days prior to the incident, A.1 came to the house of PWs.1 and 2 and stayed there for about a fortnight and it is alleged that at that time when they questioned A.1 about the harassment, A.1 threatened to commit suicide. This threat of A.1 is difficult to be explained away. If really, A.1 subjected his wife to any cruel treatment and when the parents of his wife questioned him, he would not have gone to the extent of threatening that he will kill himself. Something certainly is there, which PWs.1 and 2 have suppressed. As noticed from Ex.P.1 complaint, A.1 is alleged to have harassed the deceased even when they were staying in the house of PWs.1 and 2 and if this is true, the neighbouring residents of the house of PWs.1 and 2 might have certainly come to know about it. Significantly, none is examined from the village of PWs.1 and 2. On the other hand, three independent witnesses were examined by the prosecution belonging to the village of the accused and all of them categorically asserted that A.1 and the deceased were living cordially and they have not heard or seen any acrimonious relationship between them.
21. In view of the above, from the perusal of the evidence of PWs.1 and 2, it is difficult to hold that their evidence, in any way, shows that it is A.1 who has caused the death of the deceased, or, was, in any way, responsible for it.
22. It may also be stated that when the scene of offence panchanama is conducted by the Investigating officer in the presence of PW.8 and another, nothing incriminating or suspicious circumstances are noticed in or around the house, where the deceased and A.1 were living. If the allegation that it is A.1, who killed the deceased and thereafter thrown the dead body in the well, which is at a distance of 50 yards from the house, is true certainly, there are bound to be some markings in or around the house, but nothing of that sort is noticed. As per the medical evidence on record, the approximate time of the death of the deceased is given as 24 to 36 hours prior to 04.00 p.m., on 06-02-2007. It means that the deceased died in between 04.00 a.m. to 04.00 p.m. on 05-02-2007. It is in the evidence of PWs.1 and 2 that the deceased spoke to them over telephone in the morning of 05-02-2007. Apparently, the deceased died during the day time before 04.00 p.m. on 05-02-2007. If any violent incident takes places in the broad day light, it is bound to attract the attention of the neighbouring residents. The sketch prepared (Ex.P.16) clearly shows that there are houses in the immediate neighbourhood of A.1 and the deceased. If the deceased was killed before 04.00 p.m. on 05-02-2007, and thereafter the body was taken into a well and thrown there, that would not have missed the attention of several neighbouring residents. The sketch clearly shows that in between the house of the accused and the well, where the body was found, there is a road and thereafter there were houses of neighbours, namely, Anjaiah, Rajaiah and Sekhar. The dead body would not have been carried from one place to the other, without attracting the attention of the occupants of the houses, more particularly, during day time, and leaving any traces on the ground.
23. The other circumstance relied upon by the prosecution is the observations during the post-mortem examination. The Doctor (PW.10), who conducted the autopsy, deposed that he has found an injury on the lower limb and the face was congested subcutaneous haemorrhage in the eye-balls. PW.10 did not find any external injuries on the neck or other parts of the body. As per the post-mortem report (Ex.P.17), the deceased was a well built 28 years old woman, weighing 68 KGs., with a height of 161 cms. The photographs (Ex.P.6 to Ex.P.11) also show that the deceased was a well built person. When such a person is violently done to death, there are bound to be several injuries on her person, but significantly, the Medical Officer did not find any injury except an injury on the lower limb. The Medical Officer opined that the cause of death is due to smothering and throttling. He, however, could not justify his opinion with any scientific material or the physical appearance of the deceased. If really the Medical Officer suspected the death to be due to smothering and throttling, he was required to conduct further tests, but the Doctor admits that he did not send sternum to any chemical examination, merely because they were clear cut signs on the neck of the deceased. On the basis of such evidence, it is not possible to hold that it conclusively establishes that the death of the deceased was due to smothering or throttling.
24. As already stated, the medical evidence should corroborate with the other surrounding circumstances and the evidence. The absence of even a single scratch injury on the body of the deceased or any signs of violence at the place where the incident is said to have taken place, makes it difficult to hold that it is the accused, who has committed the murder of the deceased and thereafter thrown the dead body in the well by carrying it to a distance of 50 yards, cutting across the road and several houses in the broad day light. The evidence on record, at best, raises suspicion against the accused, but as is well-settled suspicion, howsoever strong, cannot take the place of proof, and the benefit thereof should go to the accused.
25. The learned trial Judge has not appreciated these aspects in proper perspective and has erroneously held that it is A.1, who has committed the crime; while based on the same evidence, the learned trial Judge has acquitted A.2 to A.6 of all the charges. When the same evidence was not believed against A.2 to A.6, the same could not have been made use of against A.1, more particularly, when they are all charged with having killed the deceased, thereby attracting the provisions of Sections 304-B and 302 of I.P.C. The point is accordingly answered.
26. In the result, the Criminal Appeal is allowed. The conviction and sentence ordered in S.C.No.129 of 2008 on the file of the IV-Additional Sessions Judge, Karimnagar, dated 23-11-2009, against the appellant-A.1, are set aside. The appellant-A.1 shall be set at liberty forthwith, unless his detention is needed in any other case. The fine amount, if any, paid by the appellant-A.1 shall be refunded to him.
_________________ L.Narasimha Reddy,J.
______________ M.S.K. Jaiswal,J.
Date: 12.03.2014