Andhra HC (Pre-Telangana)
State Of A.P., Rep. By Public ... vs Smt. Ettekapalli Yellamma @ Yellamma @ ... on 13 March, 2014
Bench: L. Narasimha Reddy, M.S.K.Jaiswal
HONOURABLE SRI JUSTICE L. NARASIMHA REDDY AND HONOURABLE SRI JUSTICE M.S.K.JAISWAL CRIMINAL APPEAL No.1727 OF 2009 13-03-2014 State of A.P., rep. By Public Prosecutor, High Court, Hyderabad... Appellant Smt. Ettekapalli Yellamma @ Yellamma @ Nayomi W/o. E. Shyam and another ... Respondents Counsel for the Appellant: Public Prosecutor Counsel for the Respondent:Sri Madhusudan Reddy <Gist: >Head Note: ?Cases referred : 2014 (2) Supreme Court Cases 776 HONOURABLE SRI JUSTICE L. NARASIMHA REDDY AND HONOURABLE SRI JUSTICE M.S.K. JAISWAL CRIMINAL APPEAL No.1727 of 2009 JUDGMENT:
(Per Hon'ble Sri Justice L.Narasimha Reddy) The total dishonest and illegal act performed by a senior Police Officer - PW-15 in this case, by name, P. Williamcary, who functioned as the Assistant Commissioner of Police, Begumpet Division, in the year 2005, has watered down an otherwise fit case for trial under Section 304-B IPC. The efforts made by him yielded result and A-1 and A-2, the mother-in-law and husband of the deceased, were given a clean acquittal. The trial Court also was not alert enough and either has failed in its duty or was indifferent about such a blatant illegality.
2. PW-1, by name, Balaraju had a daughter, by name, Premalatha @ Latha. The marriage of that girl was performed with A-2 on 24.04.2006. In the afternoon of 16.10.2006, PW-1 received a message from P.S. Begumpet, that his daughter died. He rushed to the spot along with his wife - PW-2 and other relatives and found the dead body of Latha in the house of A-1 and A-2. Chunni was said to have been put around the neck of the deceased and on removal of that, they said to have noticed the injuries around the neck. Promptly, he submitted a complaint, Ex.P-1, before the police station. FIR No.356 of 2006 was registered even before arrival of PW-1, wherein a crime punishable under Section 304-B IPC was alleged against A-1 and A-2. As required under law, the investigation was handed over to a senior Police Officer i.e. PW-15. The inquest, post mortem and other formalities, as required under law, were completed with the participation of the officials of the concerned departments.
3. A serious turn in the case has taken place with the issuance of section alteration memo - Ex.P-16, by PW-15 on 23.10.2006. The sole basis for him to alter the provision of law into Sections 302 and 498-A IPC instead of 304-B IPC was the alleged confession of A-1 during the course of interrogation. Though the charge sheet made extensive reference to Section 304-B IPC, ultimately, the trial Court framed a charge referable to Sections 498-A and 302 IPC, omitting Section 304-B IPC.
4. During the course of trial, PWs.1 to 16 were examined and Exs.P-1 to P-16 were filed. MOs.1 and 2 were taken on record. Contradictions elicited from PWs.1 and 2 were marked as EXs.D-1 and D-2.
5. Through its judgment, dated 27.11.2008, the trial Court acquitted both the accused. Hence, this appeal by the State under Section 378(1) and (3) Cr.P.C.
6. Learned Additional Public Prosecutor submits that the investigating officer has completely altered the course of investigation by changing the provision of law without there being any basis. She contends that even if there was a confession by A-1 as to the commission of offence, the alteration of provision of law was not at all warranted, and the trial Court could have proceeded by framing the charge under Section 304-B IPC. She contends that the trial Court was not vigilant enough to prevent miscarriage of justice on account of the collusion of PW-15 with the accused.
7. Learned Public Prosecutor further contends that even otherwise, the circumstantial evidence was sufficient to convict the accused. She submits that the death of the deceased took place right in the house of A-1 and A-2, that too, less than six months from the date of marriage and various injuries noticed around the neck of the deceased were not even explained. She submits that being the mother-in-law and husband of the deceased, the accused failed to explain the incriminating circumstances atleast in their statements under Section 313 Cr.P.C., and failure in this behalf would lead to a suspicion as to their involvement. She placed reliance upon the judgment of the Supreme Court in Anjappa v. State of Karnataka1.
8. Sri Madhusudan Rao, learned counsel for the accused, on the other hand, submits that the investigation, in this case, was conducted in accordance with law and at no stage, objection was raised by anyone. He submits that there are no circumstances, whatever, to suspect the involvement of the accused for the death of the deceased and on finding that the prosecution failed to prove the case, the trail Court acquitted the accused. He submits that A-2 was not in the house when the incident took place and there is nothing on record to indicate that A-1 has caused any harm, much less any injury to the deceased.
9. The death of the deceased took place hardly within six months from the date of her marriage with A-2. PWs.1 to 3 stated that the deceased used to complain about the harassment being caused to her by A-1 and A-2 by demanding additional dowry. PW-1 is a Mason and he was maintaining the family of quite a considerable size. On account of the poverty, he could not meet the demands of A-1 and A-2.
10. There is no dispute that the death of the deceased took place in the house of A-1 and A-2. Three factors, namely, 1) the death took place within seven years from the date of marriage, 2) the death occurred in the house of the accused and 3) the death was unnatural; were sufficient to invoke the provisions of Section 304-B IPC. That, in fact, was done by the Station House Officer, and the further steps in the matter were also taken on that basis. Though the investigation could have been conducted in the ordinary course by the C.I. of Police, it was entrusted to PW-15 - the Assistant Commissioner of Police, because of the requirement under Section 304-B IPC. The inquest was conducted in the presence of the Executive Magistrate - PW-11. The post mortem was also conducted with the participation of two Medical Officers as required under law.
11. PW-15 appears to have started interrogating the accused. Hardly, within one week, he gave a serious turn to the entire case by issuing Ex.P-16, which reads:
"During the course of investigation, on examination of the body of the deceased, it appears to be a case of strangulations, forcibly compressed the neck of the deceased Smt. Premlatha with green colour chunni, till her death as such it is established that it is a case of murder, not a case of suicidal death, due to dowry harassment.
During the course of interrogation, the accused smt. Yellamma confessed that, due to fit of anger she tied the chunni over the neck of her daughter-in- law Premlatha till her death, which constituted an offence U/S.302 IPC. In addition to the above, the FIR states that, there is harassment for additional dowry, which constituted U/s.498(A) IPC.
Under the above circumstances, the section of law was altered from 304(B) IPC to Sec.302 and 498(A) IPC and instructed the Inspector of Police, Begumpet PS to take up further investigation in the case."
12. We are indeed shocked to notice the ingenuinity, if not, dishonesty on the part of PW-15. But for the fact that he retired from service, we would have directed initiation of disciplinary proceedings against him.
13. The only reason stated in Ex.P-16 for altering the provision of law from 304-B IPC to 302 and 498-A IPC is that A-1 confessed of the commission of offence. It is just ununderstandable as to how that confession would warrant the alteration of provision. Even with that confession, the investigation and the trial could have been continued by citing that very provision i.e. 304 IPC. In the charge sheet, the fact that the FIR was registered by invoking Section 304-B IPC and the provision of law altered was half way through, was clearly mentioned. The trial Court, however, did not pay attention and has simply framed the charges under Sections 302 and 498-A IPC.
14. After the trial, a finding was recorded by the trial Court to the effect that there are no eye-witnesses to the incident and even the circumstantial evidence is not sufficient to hold the accused guilty. We are of the view that had the charge been framed under Section 304-B IPC, the things would have been different altogether. The accused would have been under obligation to explain the circumstances under which the death of the deceased occurred, particularly, as to how the injuries around her neck were caused.
15. The very purpose of inserting Section 304-B IPC, by the Parliament was to neutralize the collusive and ingenuine steps, mostly taken by the prosecution and leaving no alternative for the Courts to convict the persons accused of committing the murder of innocent and gullible brides and women.
16. The commission of crimes against women, that too, shortly after the marriage, by demanding additional dowry and causing other kinds of harassment has become so rampant that substantial amendment to the criminal law had to be made. The parameters of the trial and adjudication of such matters are changed by placing the burden to prove innocence upon the accused, than to require the prosecution to prove the guilty of the accused. Not only Section 304-B IPC was introduced, but also the corresponding provisions were incorporated in the Evidence Act. However, with one stroke of pen i.e., by signing on Ex.P-16, PW- 15 has defeated the very objective intended by the Parliament.
17. We would not have felt disturbed had it been a case where provisions of Section 304-B IPC were not invoked at any stage at all, though the case wanted it otherwise. The prosecution proceeded on correct lines and all the formalities that were required under Section 304-B IPC were complied with. This included (a) entrustment of investigation to a Sub-Divisional Police Officer,
(b) conducting of inquest before the Executive Magistrate, and (c) conducting the postmortem with the participation of two medical officers. The confession of A-1 was cited as the lamest possible excuse for PW-15, to give a totally different direction to the case, which was proceeding on correct lines.
18. However, we are not helpless. Section 216 Cr.P.C., confers the power upon a Court to alter the charge. The only requirement is that once the charge is altered, the witnesses must be recalled as provided for under Section 217 Cr.P.C. We are of the view that this is one of the fittest case, where the charge can be altered at the appellate stage also, and the record not only permits, but also warrants such a course.
19. Therefore, the Criminal Appeal is allowed setting aside the judgment dated 27.11.2008 of the trail Court in S.C. No.149 of 2007 and the matter is remanded to the trial Court for de novo trial. The trial Court shall frame a charge under Section 304-B IPC. The bail granted to the accused by this Court on 12.05.2010, shall remain in force till the disposal of the criminal case, after remand. The trial Court shall endeavour to dispose of the case within a period of six months. None of the observations made by us herein shall be treated as a finding on any aspect. We also make it clear that the case shall be adjudicated after re-trail, uninfluenced by any of the observations made in this appeal. ________________ L.NARASIMHA REDDY, J __________________ M.S.K.JAISWAL, J March 13, 2014