Andhra HC (Pre-Telangana)
Enugu Thirupathi Reddy vs State Of Andhra Pradesh on 7 July, 2003
Equivalent citations: 2003(2)ALD(CRI)416, II(2004)DMC195
JUDGMENT M. Narayana Reddy, J.
1. This judgment, according to Law, based on the legal material placed, on record, arises out of a criminal appeal, filed by the sole appellant against the sole respondent, under Sub-section (2) of Section 374, Cr.P.C., 1973, questioning the validity and legality, of the adjudications made by, and set forth in para 2, infra.
2. Judgment, dated 14.3.1997, of the Court of the II Addl. Sessions Judge, Karimnagar (Trial Court), made in S.C. No. 353/96, of its file.
3. Perused the material papers of the record.
4. Arguments were heard of the learned Counsel for the sole appellant, and the learned Addl. Public Prosecutor for the sole respondent-State.
5. The sole appellant In this Criminal Appeal corresponds to the sole accused in the said S.C. No. 353/96 of the file of the said Trial Court. The sole respondent herein corresponds to the sole complainant in the said Sessions Case, being the State of A.P. represented by the Assistant Superintendent of Police, Peddapalli.
6. The parties are, hereinafter, referred to, with reference to their respective descriptions before the said Trial Court, unless, otherwise, so specified.
7. The said Assistant Superintendent of Police, Peddapalli, filed charge-sheet, before the said Trial Court, against the sole accused, under Sections 304-B and 306, I.P.C., in the Court of the Judicial Magistrate of First Class, Peddapalli (Committal Court), inter alia alleging, as under:
(a) The deceased, covered by the case, is Enugu Rama Devi, is the legally wedded wife of the sole accused. Their marriage was performed in the year 1988. At that time, Rs. 8,000/-, were given to the accused, as dowry.
(b) For four years thereafter, both of them lived happily and begot children.
(c) Later, the accused became addicted to drinking and gambling, and a Panchayat was held in respect thereof, whereat the accused undertook to give up bad vices. This undertaking was recorded.
(d) However, subsequently also, the accused started demanding more dowry, and ill-treated the deceased unable to bear it the wife of the accused, the said Rama Devi (deceased), committed suicide by consuming poison on 18.10.1994, in Bachannapeta village.
(e) The report in respect thereof was registered as crime No. 127/94, under the said Sections 304-B and 306, I.P.C., and was investigated into, as prescribed by Law.
(f) Because, the investigation revealed that, the sole accused committed the foregoing offences, charge-sheet is filed against him accordingly, and he is liable for punishments thereunder.
8. The said Committal Court registered the said charge-sheet as P.R.C. No. 99/96 of its file and later committed the same to the Court of Session, which made over the same to the said Trial Court.
9. Because, the sole accused pleaded not guilty of the two separate sole charges, framed against him, and punishable under Sections 304-B and 306, I.P.C., and claimed to be tried, the Trial Court tried the said S.C. No. 353/96, following the procedure prescribed in Chapter XVIII, Cr.P.C, 1973, for trial so Sessions Cases, in the process whereof it recorded the oral evidence of P.Ws. 1 to 13 and exhibited the documentary evidence by way of Exs. P.1 to P.8 and later after due arguments thereinto, and considering the same, finally, adjudicated thereupon, by its now impugned judgment, dated 14.3.1997, set forth in para 2, supra, as under:
I. Finding the sole accused, guilty of the separate offences, and charges, punishable under Section 304-B and Section 306, I.P.C.;
II. Consequently, convicting the sole accused, in respects thereof, under Subsection (2) of Section 235, Cr.P.C. 1973, and sentenced him, thereunder, as under:
(a) Under Section 304-B, I.P.C., to undergo Rigorous Imprisonment for a period of seven years; and
(b) Under Section 306, I.P.C.
(i) to undergo Rigorous Imprisonment for a period of three years; and
(ii) to pay a fine of Rs. 1,000/-, and, in default of payment thereof, to suffer Simple Imprisonment for a period of three months.
The foregoing substantive sentences are directed to run, concurrently.
10. Aggrieved thereby, and questioning the validity and legality thereof, the sole accused filed the present criminal appeal, as set forth in para 1, supra, read with para 2, supra.
11. Hence, the point for consideration and adjudication thereof, in this criminal appeal, will be, as under:
"Whether the impugned judgment, set forth in para 2, supra, and the convictions and sentences imposed thereby, and set forth in para 9, supra, are unsustainable, either at fact or Law, and, hence, are liable to be set aside in toto or modified or interfered with in any manner?"
12. No additional, oral or documentary evidence is sought to be adduced by either party in this criminal appeal.
13 Arguments were heard of both sides, as set forth in para 4, supra.
14, Point the brief material, required facts and circumstances of the case are all set forth in the foregoing paragraphs.
15. At the very outset, it should be mentioned here that, it is well-settled Law that, in respect of the same death, the same person, i,e. the husband in this case, cannot be convicted, sentenced, both for the offences punishable under Sections 304-B, I.P.C., as well as under Section 306, I.P.C. Hence, further probing in this regard is not required.
16. However, at the same time, for the same reason, both the sentences cannot be set aside, much less ipso facto.
17. Hence, it has to be examined as under, as to whether the prosecution could prove the offence and charge against the sole accused in respect of either of the two sections or proved any minor offence against the accused or the prosecution could not, at all, prove any offence or charge, whatsoever, against him, warranting total acquittal, etc.
18. P.W.1 is the uncle of the said deceased, P.W. 2 is the aunt of the deceased. They deposed about the marriage and payment of dowry of Rs. 8,000/- to the accused, at that time, etc. They also deposed about the vices of the accused, like drinking, gambling, etc., and the accused admitting his vices before the Panchayat held in respect thereof, etc.
19. P.W. 3 is the grand-mother of the deceased. She deposed about the accused beating the deceased in her presence, etc. P.W. 4 is the Patwari of the village. He deposed about the Panchayat held in respect of the ill-treatment of the deceased by the accused, and his admitting the same, and undertaking to behave properly in future. The agreement prepared in that context is exhibited as Ex. P.2. P.Ws. 5 and 6 are the relatives of the deceased.
20. P.W. 7 is the inquest Panchayatdar. Inquest Report is Ex. P.3. P.W. 10 is the Mandal Revenue Officer, who held that inquest.
21. P.W. 8 is the Panch witness in respect of the scene of offence report, exhibited as Ex. P.4. P.W. 9 is the Photographer.
22. P.W. 11 is the Doctor, who conducted the autopsy over the dead body of the deceased. Post-mortem certificate issued by him is Ex. P.5. His Final Opinion is Ex. P.6 showing that the deceased died due to consuming of poison, etc. Ex. P.7 is the report of the Director, Forensic Science Laboratory, Hyderabad.
23. P.Ws. 12 and 13 are the Investigating Officers. They deposed about Ex. P.1 given by P.W. 1, and the original F.I.R., exhibited as Ex. P.8, and the details of the investigation into the crime, etc.
24. After considering the foregoing oral and documentary evidence, in the light of the arguments of the learned Additional Public Prosecutor, and the learned Counsel for the sole accused, the Trial Court arrived at and recorded the foregoing finding of guilt of the sole accused in respect of both the offences and charges, under Sections 304-B and 306, I.P.C
25. However, after considering the now impugned judgment, on the one hand vis-a-vis the grounds of appeal, questioning the same, vis-a-vis the foregoing material, oral and documentary, placed on record, vis-a-vis the legal position prevailing in respect of the questions involved, vis-a-vis the arguments of the learned Counsel for the sole appellant, and the learned Addl. Public Prosecutor for the sole respondent-State, and considering the same, I am of the considered opinion that, the material doesn't prove much less beyond all reasonable doubts either of the two offences and charges, both punishable under the said Sections 304-B and 306, I.P.C., and so to say even prima facie case in respect thereof, is not proved.
26. Hence, the convictions and sentences of the sole accused, made by the Trial Court, and set forth in sub-paras I and II, of para 9, supra, are liable to be set aside, in toto out-right, ipso facto as such.
27. However, for that reason itself, the accused cannot be set at liberty, forthwith. The material, on record has to be examined further, and it has to be found as to whether the forgoing material on record doesn't disclose any offence, whatsoever, at all, against the accused or in the alternative, the same discloses or proves, any minor offence than the foregoing set aside offences and charges.
28. In case it is so found, then, under Sub-section (2) of Section 222, Cr.P.C., the Court can convict and sentence the sole accused in respect or respects thereof, even if no specific charge or charges are framed in respect thereof.
29. The said Ex. P.2, dated 8.9.1994, is duly proved by the said P.W. 4, the Patwari, as well as by P.Ws. 1 and 2 and the First Investigating Officer, being the then S.I. of Police, Peddapalli, examined as P.W. 12. It is not impeached for the accused. It is undersigned by him. Nor is it rebutted by the accused. Its contents, inter alia, read, that, earlier the deceased gave a complaint to the Police, against the accused inter alia alleging that, he is consuming alcohol, playing cards, and beating her, etc., and that, before the foregoing persons, the accused admitted the same, and undertook that, in future, he will not take any kind of alcohol and will not play cards, and will not beat his wife, and that, in case he does so, then, he will be responsible for the punishment, etc.
30. The said proved Ex. P.2, read with the evidence of P.Ws. 1, 2, 7 and 12, as also, the rest of the material, and the facts and circumstances of the case, and the probabilities and improbabilities thereof, in my opinion, conclusively prove that, during the life-time of the deceased, the accused ill-treated her and subjected her to cruelty, from time-to-time, and, thereby committed the offence, punishable under Section 498-A, I.P.C. Obviously, unable to bear the same, she committed suicide and died, even if the other two offences, under Sections 304-B, I.P.C., or 306, I.PC., could not be proved by the prosecution.
31. Having regard to the facts and circumstances of the case, I am not inclined to apply to the case, on hand, the provisions of Section 360, Cr.P.C. or Section 3 or 4 of the Probation of Offenders Act, 1958.
32. Hence, the accused is liable to be convicted and sentenced in respect of the offence under Section 498-A, I.P.C. The said Section 498-A, I.P.C., prescribes maximum sentence of imprisonment for three years, rigorous or simple, with compulsory fine amount.
33. Having regard to the facts and circumstances of the case, I am of the opinion, that, sentencing the sole accused, aged about 26 years, for Rigorous Imprisonment of one year and six months, as well as, to pay a fine of Rs. 1,000/- (Rs, one thousand only) and in default of payment thereof, to undergo Simple Imprisonment for 45 days, as is being done hereunder, will meet the ends of criminal justice.
34. Hence, the High Court doth hereby adjudicate upon the criminal appeal, as under:
I. Under Sub-clause (i) of Clause (b) of Section 386, Cr.P.C., 1973, set aside the findings of guilt, recorded by the Trial Court, and the convictions and sentences imposed upon the sole accused, all, in respect of Sections 304-B and 306, I.P.C., set forth in sub-paras (I) and (II) of para 9, supra, and hence, acquit him in respects thereof;
II. However, under Sub-clause (iii) of the said Clause (b) of Section 386, Cr. P.C., 1973, read with Sub-section (2) of Section 222 thereof, find the sole accused guilty of the offence punishable under Section 498-A, I.P.C., and hence, convict him in respect thereof and, hence, sentence him thereunder, as under--
(a) to undergo Rigorous Imprisonment for a period of one year and six month; and
(b) to pay a fine of Rs. 1,000/- (Rs. one thousand only) and in default of payment thereof, to undergo Simple Imprisonment for a period of 45 days; and III. The period or periods, if any, during which the accused was in custody in the past, in respect of the crime, covered by this case, shall be set off, under Section 428, Cr.P.C., 1973, against the now imposed, only, the substantive sentence of imprisonment, covered by sub-para II, supra.