Andhra Pradesh High Court - Amravati
Gundasi Narasinga Rao, Visakapatnam 2 ... vs State Of A.P., Rep. Pp., Hyd., on 29 May, 2020
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy, B Krishna Mohan
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
AND
THE HON'BLE SRI JUSTICE B.KRISHNA MOHAN
CRIMINAL APPEAL NO.1222 OF 2012
JUDGMENT:(Per Hon'ble Sri Justice M.Satyanarayana Murthy) This Criminal Appeal is filed under Section 374(2) of Criminal Procedure Code, 1973 (for short 'Cr.P.C') by the Accused Nos.1 to 3 in Sessions Case No.88 of 2010 on the file of Mahila Court, Visakhapatnam, dated 30.11.2012, where under the accused were found guilty for the offences punishable under Sections 498-A and 302 of Indian Penal Code, 1860 (for short 'I.P.C') and convicted under Section 235(2) of Cr.P.C and sentenced to undergo imprisonment for life and to pay a fine of Rs.200/- each in default simple imprisonment for one month each and also convicted and sentenced to undergo Rigorous Imprisonment for two years each for the offence under Section 498-A of IPC and also sentenced to pay a fine of Rs.1,000/- each, in default simple imprisonment for six months each, while finding them not guilty for the offence punishable under Section 304-B of IPC and acquitted under Section 235(1) of Cr.P.C. All the accused assailed the conviction and sentence passed under the Calendar and Judgment, dated 30.11.2012 on various grounds.
2. It is a case of murder of a married woman by husband, mother-in-law and brother-in-law during mid night in the house of 2 the accused/appellants themselves allegedly for her failure to meet the illegal demand for additional dowry.
3. (i) The facts of the case in nutshell are that, on 07.06.2006, the marriage of Gundasi Sarva Laxmi (deceased) was performed with A1 at Simhachlam Devasthanam as per Hindu Religious and Caste customs and rites. Immediately, after the marriage, Sarva Laxmi joined her husband and in-laws to lead marital life. She was blessed with a male child. At the time of fixing her marriage, on demand by the accused, P.Ws.1 and 2, who are the parents of Sarva Laxmi agreed to pay an amount of Rs.1,50,000/-. Prior to the marriage of Sarva Laxmi, P.W.1 and accused came to an understanding that P.W.1 shall pay Rs.40,000/- at the time of marriage and pay the balance amount of Rs.1,10,000/- subsequently. The accused agreed for the same and on the demand of the accused, P.W.1 mortgaged his land to A1 executing a document on a non-judicial stamp paper and executed two promissory notes for Rs.1,20,000/-and for Rs.25,000/-. At the time of marriage, P.W.1 paid an amount of Rs.40,000/- towards part of the dowry amount, Rs.25,000/- for purchase of two wheeler and Rs.20,000/- towards household articles i.e., utensils. The dowry balance amount of Rs.1,10,000/- is due to the accused. In spite of the guarantee provided by P.W.1, A1 to A3 started harassing Sarva Laxmi for payment of balance dowry amount. Several times, Sarva Laxmi informed to P.Ws. 1 and 2 about the harassment of accused as and when she visited their house. Later A1 dropped Sarva Laxmi at the house of P.W.1 for about three 3 months with a warning to bring the dowry balance amount. P.W.1 expressed his inability to pay the amount at that moment and the dispute was referred to the elders of the marriage (P.Ws. 3 and 4). Due to the intervention of elders, again Sarva Laxmi (deceased) was sent to matrimonial house with a promise that the due amount will be paid by June, 2009. But the accused continuously harassed for her failure to pay balance dowry.
(ii) About 10 days prior to the death of Sarva Laxmi, on invitation from P.W.1, A1 and Sarva Laxmi visited the house of P.W.1 and participated in the betrothal function of the elder son of P.W.1. A1 came to know that the son of P.W.1 is getting Rs.5,00,000/- as dowry and expressed his dissatisfaction as sufficient amount was not paid to him as dowry and with unhappiness, A1 went away from the house of his in-laws. As P.W.1 and others convinced A1, after three days, A1 visited his in- laws house and took Sarva Laxmi to his house with a demand to pay additional dowry to him. Again all the accused started harassing Sarva Laxmi, subjected her to cruelty as A1 was not paid sufficient dowry and also demanded for additional dowry.
(iii) In the year 2009 at about 2.30 a.m., A1 telephoned to P.W.1 and informed him that Sarva Laxmi was suffering from vomitings and loose motions and after some time again phoned and informed that Sarva Laxmi died. Immediately P.Ws. 1 to 3 reached the house of the deceased Sarva Laxmi and found the dead body of Sarva Laxmi. When P.W.1 questioned A1 about the death of his daughter, A1 informed that during the previous day 4 night Sarva Laxmi committed suicide by hanging. P.W.1 lodged a report in Gopalapatnam police station.
(iv) Basing on the report of P.W.1 under Ex.P1, L.W.20 S.Venkatarao, Inspector of Police, Gopalapatnam police station registered a case in Crime No.47 of 2009 for the offence punishable under Section 304-B of Indian Penal Code, issued F.I.R-Ex.P-17 and investigated the matter.
(v) During the course of investigation, P.W.11/Investigating Officer visited the scene of offence, prepared rough sketch marked as Ex.P16, got photographed the dead body of Sarva Laxmi (deceased) vide Ex.P6, held inquest in the presence of mediators and blood relatives, Ex.P7 is inquest report and referred the dead body for post-mortem examination. Ex.P-5 is the Post Mortem Report. P.W.11 seized the suicide note written by the deceased marked as Ex.P13, as Sarva Laxmi died within seven years of her marriage and also seized the admitted hand writings of the deceased in the presence of P.W.6 and one Chandaka Chiranjeevi (L.W.14) and the same was sent to Forensic Science Laboratory for comparison with the handwriting on suicide note.
(vi) P.W.11 arrested A1 and A2 on 02.03.2009 and sent them for judicial custody on the same day and A3 obtained anticipatory bail. After completion of investigation, after receipt of opinion from Forensic Science Laboratory marked as Ex.P15 and after receipt of Post Mortem certificate vide Ex.P5, P.W.11 filed charge sheet against the accused/appellants. 5
4. Case was taken on file for the offence under Section 304-B IPC by the II Additional Chief Metropolitan Magistrate, Visakhapatnam and registered the same as PRC No.16 of 2009. The II Additional Chief Metropolitan Magistrate, Visakhapatnam committed the case to the Sessions Division, Visakhapatnam, as the offence punishable under Section 304-B IPC is exclusively triable by Court of Sessions. The Principal Sessions Judge, Visakhapatnam registered the same as Sessions Case No.88 of 2010 and later made over the same to Sessions Judge, Mahila Court, Visakhapatnam.
5. Upon hearing, the learned Additional Prosecutor and the Defence Counsel, the Sessions Court framed charges against the accused/appellants for the offences punishable under Sections 304-B and 302 IPC, read over and explained to them in Telugu, they pleaded not guilty and claimed to be tried.
6. During the course of trial, the prosecution has examined PWs. 1 to 11 and got marked Exs.P1 to P-21, M.Os.1 to 4 to substantiate the case of the prosecution. After closure of prosecution evidence, the accused were examined under Section 313 Cr.P.C, explained the incriminating material that appeared against them in testimony of prosecution witnesses and they denied the same. On behalf of the defence, the doctor, who used to treat the deceased Sarva Laxmi was examined as DW.1 and one of the marraige elders was examined as DW.2.
7. Upon hearing arguments of learned Public Prosecutor and Defence Counsel, the trial Court believed that the death of the 6 deceased Sarva Laxmi was caused by smothering, obstructing air passage to the lungs of the deceased based on the evidence of P.W.7, whereas the accused set up specific defence that she committed suicide by hanging due to unbearable backache and examined D.Ws. 1 and 2 in support of their contention, but the trial Court disbelieved the contention of the appellants/accused, the cause of death and the reason for committing alleged suicide by hanging and thereby found the accused guilty for the offences punishable under Sections 498-A and 302 of IPC, while finding them not guilty for the offence punishable under Section 304-B of IPC.
8. The present appeal is filed by all the three accused on various grounds. The main contention of the appellants/accused before this Court is that when there is no material to prove the offence punishable under Section 304-B of IPC, the question of finding the accused guilty for the offences punishable under Sections 498-A and 302 of IPC is an error. The evidence of P.Ws. 1 to 4 cannot be accepted for the reason that they are highly interested witnesses and their testimony is discrepant, thus there is absolutely no proof that the death of Sarva Laxmi was a homicidal. Hence, finding the accused guilty for the offences punishable under Sections 498-A and 302 of IPC and sentencing them as stated supra is a grave illegality committed by the trial Court and requested to set aside the conviction and sentence passed against the appellants/accused for the offences punishable 7 under Sections 498-A and 302 of IPC and acquit them under Section 235(1) of Cr.P.C.
9. During hearing, the learned counsel for the appellants/accused Smt. Vasundhara Reddy contended that the evidence on record clearly established that the cause of death of deceased Sarva Laxmi was suicidal hanging due to back ache and the same is supported by medical evidence of D.W.1 and Ex.P13 suicide note coupled with Forensic Science Laboratory report/Ex.P15, but the trial Court did not give much credence to the above evidence. It is also further contended that based on the testimony of interested witnesses, who are no other than the father, mother and brother of the deceased and the elder, who settled the marriage, can be discarded as their testimony is not supported by any independent witnesses of the locality, where the accused and the deceased were living together. In the absence of such corroborative evidence, the testimony of P.Ws. 1 to 4 can be described as interested testimony, the same can be overlooked. If the evidence of P.Ws. 1 to 4 is excluded from consideration, there is absolutely no evidence to believe that the accused caused the death of Sarva Laxmi, but the trial Court did not consider the evidence in proper perspective and committed an error in finding the accused guilty and convicted and sentenced them as stated supra.
10. In support of her contentions, the learned counsel for appellants/accused placed reliance on the following judgments. 8
(i) Digamber Vaishnav and others Vs State of
Chattisgarh1
(ii) Mayur Panabhai Shah Vs State of Gujarat2
(iii) Vipin Jaiswal Vs State of Andhra Pradesh
represented by Public Prosecutor.3
On the strength of the principles laid down in the above judgments and applying those principles to the present facts of the case, requested to set aside the conviction and sentence passed by the trial Court against the appellants/accused.
11. On the other hand, the learned Public Prosecutor for State supported the conviction and sentence passed against the appellants/accused in the Calendar and Judgement of the trial Court in all respects, more particularly cause of death of Sarva Laxmi was due to 'asphyxia by smothering'. This fact is supported by medical evidence of P.W.7/doctor and therefore, it is for the appellants/accused to prove that the cause of death of Sarva Laxmi was other than due to asphyxia by smothering, and more particularly when the death is unnatural that took place in the house of the accused themselves and the house is in their exclusive possession. Even according to Section 106 of Indian Evidence Act, when a specific fact is within their exclusive knowledge, it is for them to explain, but the accused did not explain the cause of death of the deceased by substantive evidence and therefore, the conviction and sentence imposed against the appellants/accused as stated supra, cannot be disturbed, while 1 AIR 2019 SC 1367 2 AIR 1983 SC 66 3 AIR 2013 SC 1567 9 exercising power under Section 374(2) of Cr.P.C and requested to dismiss the appeal, affirming the conviction and sentence passed by the Sessions Court in Calendar and Judgment in Sessions Case No.88 of 2010 on the file of Mahila Court, Visakhapatnam.
12. Considering the rival contentions and perusing the material available on record, the points that arise for consideration are as follows:
1) Whether the death of Sarva Laxmi is suicidal hanging or death due to asphyxia on account of smothering?
2) Whether the appellants/accused explained the cause of death which took place in their house which is within their exclusive possession, if not whether the finding of the trial Court that the accused committed the offences punishable under Sections 498-A and 302 of IPC be sustained?
3) Whether the accused/appellants subjected Sarva Laxmi to cruelty for her failure to pay balance of dowry and additional dowry, if so, the conviction of A1 to A3 for the offence punishable under Section 498-A of IPC is legal?
13. Before deciding the points for consideration, it is appropriate to advert to the scope of jurisdiction of the High court in appeal under Section 374(2) of Cr.P.C. Section 374 Cr.P.C conferred a substantive right of appeal on the accused who is convicted by the Trial Court and this Court while exercising power under Section 374(2) Cr.P.C is bound to re-appraise entire evidence to come to an independent conclusion, uninfluenced by the findings recorded by the Court below and decide the legality of conviction and sentence passed by the Sessions Court. Therefore, 10 it is the duty of this Court to re-appraise entire evidence recorded by the Court below after giving an opportunity to both the parties, i.e accused and the respondent, unless the Court finds manifest perversity in the calendar and judgment or such findings were recorded without evidence, normally, this Court cannot interfere with such fact findings in appeal, while exercising jurisdiction under Section 374(2) Cr.P.C. It is the sacrosanct duty of the appellate court, while sitting in appeal against the judgment of the trial Judge, to be satisfied that the guilt of the accused has been established beyond all reasonable doubt after proper re- assessment, re-appreciation and re-scrutiny of the material on record. Appreciation of evidence and proper re-assessment to arrive at the conclusion is imperative in a criminal appeal. That is the quality of exercise which is expected of the appellate court to be undertaken and when that is not done, the cause of justice is not sub-served, for neither an innocent person should be sent to prison without his fault nor a guilty person should be let off despite evidence on record to assure his guilt (vide Kamlesh Prabhudas Tanna & Anr v. State Of Gujarat4). Keeping the scope of Section 374(2) Cr.P.C, we would like to re-appreciate entire evidence on record to come to an independent conclusion, uninfluenced by the findings recorded by the Court below.
14. The case of prosecution is totally based on circumstantial evidence, since the incident allegedly took place in the house of the accused/appellants and it is never the case of the prosecution that 4 (2013) 15 SCC 263 11 the incident was witnessed by any witness. It is the obligation of prosecution to establish each and every circumstance to complete the chain of circumstances pointing out the guilt towards the accused/appellants and inconsistent with the innocence.
15. When the case is based on circumstantial evidence, burden of proof is always on the prosecution to prove all the circumstances from which conclusion of guilt is to be drawn must be fully established and the facts so established must be consistent with hypothesis of guilt of accused and any circumstance consistent with innocence of accused, he is entitled to benefit of doubt. (vide Kishore Chand v. State of Himachal Pradesh5)
16. The Apex Court while discussing the scope of Section 3 of the Evidence Act, more particularly, circumstantial evidence held that, in a case of murder when the prosecution relying on circumstantial evidence, it is for the prosecution to prove all the incriminating facts and circumstances and the circumstances which are incompatible with innocence of the accused to draw inference of guilt and such evidence should be tested by touch- stone of law relating to circumstantial evidence laid down by Supreme Court (vide Syed Hakkim & another v. State6)
17. Similarly, in G.Parshwanath v. State of Karnataka7, the Supreme Court is of the view, when the case of the prosecution is based on proof of circumstantial evidence on the basis of which conclusion of guilt is drawn must be fully established fully, 5 AIR 1990 S.C. page 2140 6 2009 Cr.L.J. page 1891 7 AIR 2010 S.C. page 2914 12 individual chain of circumstances must be complete pointing out the guilt of accused, all proved facts must lead to inference of guilt of the accused alone and court has to draw distinction between primary and basic facts while appreciating the circumstances and regard must be had to common course of natural events and human conduct and finally the facts established should be consistent only with hypothesis of guilt of accused and it does not mean that each and every hypothesis suggested by the accused must be excluded by proved facts. In Rukia Begum Vs. State of Karnataka with Issaq Sait and another v. State of Karnataka with Nasreen v. State of Karnataka8; Jagroop Singh Vs. State of Punjab, Inspector of Police, Tamil Nadu Vs. Balaprasanna9 Shaik Khadar Basha v. State of Andhra Pradesh10, the same principle was reiterated.
18. The Supreme Court in Trimukh Maloti Kikran v. State of Maharashtra11, wherein the Supreme Court held as follows:
"In the case in hand there is no eye-witness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence.8
AIR 2011 SC page 1585 9 2009(1) ALD (Crl.) page 113 10 2009(1) ALD (Crl.) page 859 (AP) 11 (2006) 10 SCC 681 13 In view of the settled principle of law, the prosecution made a sincere attempt to prove each and every circumstance, pointing out the guilt of the accused that the offence punishable under Section 302 I.P.C by drawing inference from the proved facts and circumstances which are consistent only with hypothesis of guilt of accused before the Trial Court and inconsistent with innocence.
Keeping in mind we would like to decide the point No.1 for determination.
POINT NO.1:
19. The first and foremost contention of the prosecution is that the death of Sarva Laxmi was caused due to asphyxia by smothering, whereas the appellants/accused contended that Sarva Laxmi committed suicide by hanging. Hence, it is necessary to decide whether the death of Sarva Laxmi is suicidal hanging or due to asphyxia by smothering. The trial Court concluded that the cause of death of deceased was due to asphyxia by smothering, while rejecting the contention of the accused that the death of Sarva Laxmi was due to suicidal hanging.
20. The evidence of P.Ws.1 to 3 is with reference to performance of marriage, payment of dowry and harassment allegedly metted by Sarva Laxmi in the hands of the accused and also spoke about the receipt of phone call from A1 about sufferings of Sarva Laxmi due to vomitings and loose motions over phone and ultimately death. The evidence of P.Ws.1 to 3 is also consistent that P.W.1 executed two promissory notes for Rs.1,20,000/- and Rs.25,000/- 14 in favour of A1 and mortgaged the land as security for balance of dowry. Their evidence at best is relevant to decide the cause for commission of murder of Sarva Laxmi and harassment meted by Sarva Laxmi before her death for her failure to fulfil the demand for payment of balance of dowry and additional dowry, more particularly for the offence punishable under Sections 498-A and 304-B of IPC, but the trial Court found the accused not guilty for the offence punishable under Section and 304-B of IPC and in the absence of any appeal by the State, the findings recorded by the trial Court with regard to charge for the offence punishable under Section 304-B of IPC cannot be disturbed by this Court.
21. To decide whether the death of deceased Sarva Laxmi was due to suicidal hanging by Sarva Laxmi or due to asphyxia by smothering caused by the appellants/accused, it is necessary to advert to medical evidence of P.W.7 Dr.V.Chandra Sekhar coupled with Post Mortem report/Ex.P5, inquest report/Ex.P7 and RFSL report/ Ex.P15 and oral evidence of D.Ws. 1 and 2.
22. Before adverting the oral evidence on record, it is appropriate to examine what is the nature of asphyxia and how it can be caused.
(i) There are three different kinds of asphyxia. Asphyxia is a mode of death caused by interference with respiration, in which the cells fail to receive or utilize oxygen(hypoxia) together with a failure to eliminate excess of CO2 (hypercapnia). The classical signs of asphyxia are visceral congestion, petechiae, cyanosis and fluidity of blood, but are now considered to be nonspecific as they can occur in deaths from other causes also.
(ii) Manual strangulation, also known as throttling, is a type of asphyxial death where the perpetrator uses his 15 hand to encircle and compress the front and side of the neck. It is a common method of homicide, most often encountered when the physical size and strength of the assailant exceeds that of the victim. The usual victims are females, children, aged people and those cases where the victim may be incapacitated due to drugs or caught unaware because of the suddenness of the act.
(iii) Traumatic asphyxia is different from other types of mechanical asphyxia, where mechanical fixation of the chest wall leading to restricted respiratory movements and prevention of inspiration; as compared to obstruction of air entry into the lungs that occur in other types of mechanical asphyxia. It occurs in two main conditions. The chest and upper abdomen are compressed by an unyielding substance or object so that chest expansion and diaphragmatic lowering are prevented. Common examples are getting buried underneath sand, earth, coal, avalanche and entrapment beneath motor vehicles, heavy machinery. The second type is crushing in crowds. It can also occur when one person kneels or sits with the whole weight of his body upon another for a protracted period.
Traumatic asphyxia and mechanical asphyxia are not relevant for deciding the issue before this Court, since the Post Mortem report marked as Ex.P5 coupled with the evidence of P.W.7 discloses that cause of death of deceased was asphyxia by smothering.
Asphyxia by smothering is caused by blocking air entry into the lungs by simultaneous closure of the nose and mouth. They are usually homicidal, rarely suicidal and very rarely accidental. Bruises or abrasions on the cheeks, around the mouth, lips or lesions within the lips or mouth are the features of smothering.
23. In Modi's Medical Jurisprudence and Toxicology, 23rd Edition at page 590, smothering or closure of the Mouth and Nostrils is elaborated as follows:
16
(i) Smothering or Closure of the Mouth and Nostrils Infants are often accidentally smothered by being overlaid by their mothers when they are drunk. This is more common among the lower classes of women in England. In India, such cases are rare, as infants are generally not allowed to sleep on the same bed with their mothers, but are placed in separate cradles. However, they are sometimes smothered by inexperienced mothers who press them too closely to the breast when suckling. A common method of killing infants, children and weak adults is to close the mouth and the nostrils by means of the hand, bedclothes, soft pillows or mud.
Cases have been recorded of adults being accidentally smothered by plaster of paris at the time of taking a cast or mould, or by falling face downwards into vomited matter, flour, cement, ashes, sand or mud, especially when drunk or during an epileptic fit.
Plastic bag suffocation has been reported from various countries. Deaths have occurred in course of autoerotic misadventures by use of plastic bag placed over the head. Some addicts use plastic bags in a similar manner to sniff or inhale narcotic vapours or anaesthetics. Chemical analysis is essential in all the cases of plastic bag asphyxias occurring in teenagers; for otherwise the proper diagnosis of poisoning by inhalation of narcotic vapours may be missed. A thorough search of the scene for the solvents (acetone, benzene, toluene, naphtha, carbon tetrachloride) should also be made and the relatives questioned.
[
24. At page No.596 in Modi's Medical Jurisprudence and Toxicology, 23rd Edition, pointed out several factors to decide whether suffocation was suicidal, homicidal or accidental.
(ii) Whether Suffocation was Suicidal, Homicidal or Accidental Suicidal suffocation is very rare, though a few cases of suicide among prisoners and insane persons have been recorded. They are said to have suffered their throats with rags, pieces of blankets, and hay. A few cases of women using a common plastic bag to commit suicide by trying 17 them over their head and neck have been reported. Accidental death may be caused in children who cover their head with these bags during play.
Homicidal suffocation by pressure on the chest is sometimes resorted to in India, but in the case of adults, it is often combined with smothering or throttling, and it is usually an act or more than one person. A form of homicidal suffocation practiced in Northern India is known as 'Bansdola' although it is not so common now as it used to be formerly. In this form, the victim's chest is squeezed so forcibly between two strong wooden planks or bamboos, one being placed across the upper part of the chest and the other across the back of the shoulders, that the respiratory act is interfered with, the muscles are lacerated and the ribs are fractured. If the force applied is very severe, the lungs may be crushed and lacerated. Accidental suffocation is frequent and is produced as described above and by being buried under the sand or the earth while digging deep pits; here the respiratory tract is packed with sand or earth.
Whether hanging is the suicidal or homicidal depends upon various surrounding circumstances including ligature mark. If it is death by hanging, the ligature mark will be in the oblique shape, non-continuous placed high up in the neck between the chin and the larynx, the base of the groove or furrow being hard, yellow and parchment-like, abrasions and ecchymosed round about the edges of the ligature mark are rare, the subcutaneous tissues under the mark, white, hard and glistening, injury to the muscles of the neck are rare, fracture of the larynx and trachea, very rare and that too in judicial hanging, fracture dislocation of the cervical, vertebrae, common in judicial hanging, scratches, abrasions and bruises on the face, neck and other parts of the body usually not present, external signs of asphyxia usually not well marked, saliva running out of the mouth down on the chin and chest etc. But in the present case, no such post mortem findings were recorded by P.W.7.
25. The Apex Court in Subramaniam Vs State of Tamil Nadu and another in Criminal Appeal No.774 of 2006 based on the Modi's Medical Jurisprudence and Toxicology, while extracting the 18 passages from the above book and more particularly with reference to Post Mortem appearances of external and internal and drawn difference between homicidal suffocation and suicidal suffocation.
"Post-mortem appearances are external and internal
(i) External Appearance The external appearance may be due to the cause producing suffocation, or to asphyxia.
(a) Appearance due to the Cause Producing Suffocation:
In homicidal smothering, affected by the forcible application of the hand over the mouth and the nostrils, bruises and abrasions are often found on the lips and on the angles of the mouth, and alongside the nostrils. The inner mucosal surface of the lips may be found lacerated from pressure on the teeth. The nose may be flattened, and its septum may be fractured from pressure of the hand, but these signs are, in Modi's experience, very rare. There may be bruises and abrasions on the cheeks and the molar regions, or on the lower jaw, if there has been a struggle. Rarely, fracture or dislocation of the cervical vertebrae may occur if the neck has been forcibly wrenched in an attempt at smothering with the hand. No local signs of violence will be found, if a soft cloth or pillow has been used to block the mouth and nostrils.
In compression of the chest, external signs of injury may not be present, but the ribs are usually fractured on both the sides. In homicidal compression of the chest brought about by the hands or knees of a murderer or by some other hard material, bruises and abrasions, symmetrical on both sides, are usually found on the skin together with extravasation of the blood in the subcutaneous tissues. Rarely, along with the ribs the sternum is also fractured. It should, however, be remembered that the traumatic asphyxia produces variable findings. In a fair person, purple suffusion of skin above the point of compression is apparent in severe fixation of the chest by mechanical compression. There may not be any external or internal signs where the pressure is slight or evenly distributed.
(b) Appearance due to asphyxia: The face may be pale or suffused. The eyes are open, the eyeballs are prominent, and the conjunctivae are congested and sometimes there are petechial hemorrhages. The lips are livid, and the tongue sometimes protruded. Bloddy froth comes out of the mouth and the nostrils. The skin shows punctiform ecchymoses with lividity of the limbs. Rupture 19 of the tympanum may occur from a violent effort at respiration.
(ii) Internal Appearance Rags, mud or any other foreign matter may be found in the mouth, throat, larynx or trachea, when suffocation has been caused by the impaction of a foreign substance in the air-passages. It may also be found in the pharynx or the oesophagus. The mucous membrane of the trachea is usually bright red, covered with bloody froth and congested. The lungs are congested and emphysematous. They may be lacerated or contused even without any fracture of the rib, if death has been caused by pressure on the chest. Punctiform subpleural ecchymoses (Tardieu spots) are usually present at the root, base, and the lower margins of the lungs, but they are not characteristic of death by suffocation, as they may also be present in asphyxia death from other causes.
They are also found on the thymus, pericardium, and along the roots of the coronary vessels. The lungs may be found quite normal, if death has occurred rapidly. The right side of the heart is often full of dark fluid blood, and the left empty. The blood does not readily coagulate; hence, wound caused after death may bleed. The brain is generally congesting, and so are the abdominal organs, especially the liver, spleen and kidneys"
In his opinion, to come to a definite conclusion it is very essential to look for evidences of violence in the shape of external marks surrounding the mouth and nostrils or on inside the mucosal surface, or on the chest. According to the learned author, circumstantial evidence should always be taken into consideration to establish the proof of death from suffocation. In regard to the medico- legal question as to whether the suffocation was suicidal, homicidal or accidental, the learned author stated:
"Homicidal suffocation by pressure on the chest is sometimes resorted to in India, but in the case of adults, it is often combined with smothering or throttling, and it is usually an act of more than one person.....
A form of homicidal suffocation practiced in Northern India is known as `Bansdola', although it is not so common now as it used to be formerly. In this form, the victim's chest is squeezed so forcibly between two strong wooden planks or bamboos, one being placed across the upper part of the chest and the other across the back of the shoulders, that the respiratory act is interfered with, the muscles are lacerated and the ribs are fractured. If the force applied is very severe, the lungs may be crushed and lacerated.20
26. In the same judgment, the Apex Court at para No.24 held that weightage should be given to the evidence of the doctor who has conducted the post mortem, as compared to the statements found in the text books, but giving weightage does not ipso facto mean that each and every statement made by a medical witness should be accepted on its face value even when it is self- contradictory. This is one such case where Apex Court find that there is a reasonable doubt in regard to the cause of death of victim. Therefore the Court rejected the medical evidence to conclude that the death of victim was asphyxia by smothering.
27. In State of Himachal Pradesh Vs Jeet Sinch [(1999) 4 SCC 370], the Apex Court highlighted what are relevant factors to decide whether the death was suicidal hanging or as the death due to asphyxia by smothering and held that :
""19. It appears to us that the High Court has totally overlooked the features of the victim which are consistent with the consequence of her having been subjected to smothering. The injuries found on both the legs of the dead body are proof positive that it was a homicidal smothering. We can place reliance on the opinions of both sets of doctors that even without seeing the chemical examiner's report, they could say that death of the deceased might be due to smothering"
In view of the principle, the Post Mortem findings assume much importance to decide whether the death of Sarva Laxmi was due to homicidal hanging or due to asphyxia by smothering.
28. The same principle is laid down in another judgment in Sadan Gond Vs The State of Madhya Pradesh in Criminal Appeal No.2254 of 2006 at pages 22 to 24.
21
29. In view of the law declared by the Apex Court and the passages from Modi's Medical Jurisprudence and Toxicology, it is necessary to advert the evidence of P.W.7/doctor. Dr.V.V.Chandra Sekhar/P.W.7 conducted Post Mortem examination between 10.05 a.m. to 11.00 a.m., on 11.03.2009 on the body of Sarva Laxmi. The following are the ante-mortem injuries found on the body of the deceased Sarva Laxmi.
(1) Abraded contusion of 2x1 cms noted on outer aspects of lower 1/4th of both sides of nose.
(2) Contusion of 5x1 cms on inner aspect middle of 1/3rd lower lip more on right part of injury noted.
(3) A semi circular abrasion of 1.5 x 1/3 cms with opening upwards noted on under surface of back ½ center of right part of lower jaw.
(4) Multiple abrasions noted on 5x4 cms area on back center of neck.
(5) Abrasion 1x1/2 cms noted on back upper end of left forearm.
(6) A semi circular abrasion of 1x1/3 cms opening facing downwards noted on front outer aspect of lower part right knee.
(7) Multiple submucosal contusions noted on mucosa covering the inner aspect of larynx and on back aspect of epiglottis noted but the tracheal rings are prominently noted i.e., no mucosal edema.
(8) Multiple teeth bite marks overlapping among themselves noted 3x1 cms areas on upper and under surfaces of back 1/3rd of tongue noted. All the injuries are fresh in colour.
On the basis of those injuries, the doctor/P.W.7 opined that the cause of death of Sarva Laxmi was due to asphyxia by smothering, issued Ex.P5/Post Mortem Certificate. In the cross 22 examination of P.W.7, two specific questions were put to the witnesses. The questions are as follows:
Question No.1: If any material like chunny in between ligature mark or neck are there any changes of obscure the ligature mark on the neck of the deceased provided the duration of hanging is very short.
Ans: Possibilities are more.
Question No.2: The findings mentioned in Post Mortem Certificate in the injuries column sufficient for nature of death neither suicidal nor homicidal provided the deceased prior to death happened to be shown prone position on the bed?
Ans: Most possibilities are in favour of accidental.
Based on the answers in the cross examination, it is difficult to disbelieve the evidence of P.W.7 as to the cause of death of Sarva Laxmi. If really, death was caused due to suicidal hanging, finding contusion of 2x1 cm on the lower 1/4th of both sides of nose, contusion of 5 x 1 cm on inner aspect middle of 1/3rd lower lip, semi circular abrasion of 1.5 x 1/3 cm and other injuries noted in Ex.P5 are possible wounds in case of death due to asphyxia by smothering in view of the post mortem appearances mentioned in the earlier paragraphs. Finding semi circular abrasion vide injury Nos. 3 and 6 mentioned in Ex.P5 and multiple teeth bite marks vide injury No.8 are indicative of asphyxia by smothering. If it is a suicidal hanging, question of teeth bite marks overlapping among themselves as noted in Ex.P5, vide injury No.8, does not arise, as the body will be suspended in air with a ligature, thereby the 23 question of causing such teeth bites or crescent shaped abrasions on different parts of body does not arise. Even otherwise, it is not the case of accused that cause of death of Sarva Laxmi was due to asphyxia by accident. Hence, the answers given by P.W.7 are of no assistance.
Similarly semi circle abrasions have been caused only due to nails when she was struggling to save herself against the violent smothering by the accused to kill her. Therefore, taking into consideration of the multiple injuries its nature found on the body of Sarva Laxmi as noted in Ex.P5 and spoken by P.W.7 are suffice to conclude that the cause of death was due to asphyxia by smothering.
30. The main defence set up by the appellants/accused before the trial Court was Sarva Laxmi committed suicide by hanging herself.
31. The word 'hanging' is defined in Modi's Jurisprudence and Toxicology as follows:
Hanging is a form of death, produced by suspending the body with a ligature round the neck, the constricting force being the weight of the body. Hanging can be defined as the ligature compression of the neck by the weight of one's own body due to suspension. In hanging from a high point of suspension, the victim is either fully suspended, with his feet clear off the ground or he is suspended in a standing posture with his knees slightly flexed. In a hanging from a low point of suspension (partial hanging), a comparatively little force, about 4.5 kg is enough to occlude blood vessels of the neck. The term 'partial hanging' is used for such cases in which the bodies are partially suspended, or for those in which the bodies are in a sitting, kneeling, reclining, prone, or any other posture. In all such cases, death is inevitable from slow asphyxia, if there is enough force upon the ligature to constrict the neck.24
32. Whether hanging is homicidal or suicidal or accident is again another question. In Modi's Medical Jurisprudence and Toxicology, 23rd Edition at page No.571, the differences are mentioned as follows:
Hanging is usually suicidal. When a person was suspended after murder and in the other, there was presumption of homicide. Circumstantial evidence also has an important bearing. Homicidal hanging, though rare, has been recorded. Usually, more than one person is involved in the act, unless the victim is a child or very weak and feeble, or is rendered unconscious by some intoxicating or narcotic drug. In a case, where resistance has been offered, marks of violence on the body and marks of a struggle or foot prints of several persons at or near the place of the occurrence are likely to be found. Whereas in the suicidal hanging, no such signs are found, question of finding struggle marks does not arise.
33. In the instant case, as many as eight injuries were found, more particularly semi circular abrasions and multiple teeth bites and the question of causing such injuries in a homicidal hanging does not arise. Therefore, based on the evidence of P.W.7, it can safely be concluded that the cause of death was due to asphyxia by smothering. Whereas in the Inquest report marked as Ex.P7 in column No.7, only one injury is mentioned i.e., ligature mark on the left side of the neck about 8 inches height. The other injuries were not noted, but the purpose of conducting inquest is only to find out the apparent cause of death.
34. One of the main contention raised before this Court is that the evidence of the doctor has to be scrutinized like any other evidence and not much credence can be given to the evidence of a doctor because he happened to be a public servant and placed 25 reliance on a judgment of the Apex Court in Mayur Panabhai Shah Vs State of Gujarat 12, wherein the Court held that:
"Our courts have always taken the doctors as witnesses of truth. Even where a doctor has deposed in Court, his evidence has got to be appreciated like the evidence of any other witness and there is no irrefutable presumption that a doctor is always a witness of truth"
35. But in the present facts of the case, the testimony of doctor is consistent as to the nature of ante-mortem injuries found on the body of Sarva Laxmi and when the post mortem appearances on the body of a person clearly indicating that the death due to asphyxia by smothering, the defence set up by the appellants/accused has to be thrown out, giving much credence to the testimony of P.W.1. Though the counsel for the appellants/accused Smt.N.Vasundhara Reddy raised several other contentions about the appreciation of Forensic evidence etc., relying on the judgment of Apex Court in Vipin Jaiswal Vs State of Andhra Pradesh represented by Public Prosecutor, (referred supra), the principle laid down in the above judgment are of no assistance to prove the independent defence set up by them after disproving the case of the prosecution as to the cause of death of Sarva Laxmi.
36. If really, the evidence of witnesses is shaky, inspires no confidence by this Court, the Court may discard the testimony. But in the present case, the testimony of P.W.7 is consistent, even the last seen together alive is also not sufficient as per Digambar Vaishnav and others Vs State of Chattisgarh (referred supra). If 12 AIR 1983 SC 66 26 there is a proximity between last seen together alive and death, it is one of the links in the change of circumstances. But it was not the case of the defence at any time that the deceased was not in the company of the accused alive seen before her death, the counsel for the first time raised such contention during argument even without any defence set up in the cross examination or in the examination under Section 313 Cr.P.C or by examining any other witnesses independently. Hence, those two judgments are of no use to substantiate the contentions of the accused.
37. However, based on the statements of blood relatives, the inquest panchayatdars came to conclusion that the cause of death was suicidal hanging vide column No.15, but the opinion expressed by the inquest panchayatdar/B.Apparao was examined as P.W.5, he did not support the prosecution case and nothing could be elicited in the cross examination of P.W.5 to prove the inquest held over the dead body of Sarva Laxmi and the opinion expressed by panchayatdars based on the statements of his blood relatives. Therefore, based column No.15 of Ex.P7, it is difficult to conclude that the cause of death of deceased was due to suicidal hanging, as the injuries noted in Ex.P5 could not be possible in case of suicidal hanging.
38. The defence set up before the trial Court was that the deceased Sarva Laxmi committed suicide by writing suicide note Ex.P13, as she was suffering from back ache. No doubt, Ex.P13 is a suicide note, where she specifically stated that her husband is not responsible for her death and requested her mother to take the 27 child. When it was disputed, Ex.P13 was referred to Regional Forensic Science Laboratory along with hand writing note book/Ex.P14 to prove that the hand writing in the suicide note on Ex.P13 is that of the hand writing of the deceased Sarva Laxmi. Ex.P15 is the opinion of the RFSL and it is consistent with the contention of the appellants/accused. But the trial Court observed that Ex.P13 was not written before the death of Sarva Laxmi, but it was obtained when A1 and Sarva Laxmi were in happy mood. It is not known as to when Ex.P13 was written, even otherwise, though Ex.P13 was in the hand writing of the deceased Sarva Laxmi, based on the injuries found on the body of Sarva Laxmi, the defence set up by the appellants/accused cannot be accepted. Accordingly the defence of appellants/accused is rejected.
39. Dr.B.D.Naidu, orthopaedic Surgeon was examined as D.W.1 and B.Srinivasarao was examined as D.W.2 to prove that Sarva Laxmi was suffering from severe back ache. Acute problem of back ache may be one of the reasons for commission of suicide either by hanging or otherwise, but no piece of paper is produced to establish that Sarva Laxmi was undergoing treatment under D.W.1, at least the medical prescriptions and the clinical reports to establish the same. Hence, based on the ipse dixit of D.Ws.1 and 2, it is highly difficult for the Court to believe that Sarva Laxmi committed suicide due to unbearable back pain, more particularly, when injuries were noted in Ex.P5 supported by evidence of P.W.7. Thus, rightly, the trial Court rejected the defence and concluded that the cause of death of Sarva Laxmi was due to asphyxia by 28 smothering and we find no ground to disturb such finding regarding cause of death, recorded by the trial Court even after reappraisal of evidence. Hence, it is difficult for us to reverse the findings as to cause of death of Sarva Laxmi and accordingly, we hold that the cause of death of Sarva Laxmi was due to asphyxia by smothering. Accordingly, point is answered against the appellants/accused and in favour of prosecution. POINT NO.2:-
40. We already recorded a finding that the cause of death of deceased Sarva Laxmi was due to asphyxia by smothering and the death took place inside the house of the accused as shown in Ex.P6 photos and Ex.P16 rough sketch. The appellants/accused did not dispute the scene of offence and death of Sarva Laxmi and it is not their case at any stage that any third party entered into the house and caused death. When the scene of offence is the house belonging to the accused which is in exclusive possession of the accused, the question of causing death by third party does not arise and more so, when the death took place during mid night while all the accused were inside, it is for the accused to explain as to how Sarva Laxmi died, by cogent and satisfactory evidence, as it is within the exclusive knowledge of the accused, in view of Section 106 of the Indian Evidence Act. Normally the burden of proof is always on the prosecution to prove the guilt of the accused beyond reasonable doubt. When the accused are having exclusive knowledge about the factum of death of Sarva Laxmi, it is their 29 duty to explain the cause of death in view of Section 106 of Indian Evidence Act.
41. In the case of Trimukh Maroti Kirkan Vs State of Maharashtra 13, the Apex Court held that:
" the question of burden of proof where some facts are within the personal knowledge of the accused was examined in State of West Bengal Vs. Mir Mohammad Omar and Ors.[(2000) 8 SCC 382]. In this case the assailants forcibly dragged the deceased, Mahesh from the house where he was taking shelter on account of the fear of the accused and took him away at about 2.30 in the night. Next day in the morning his mangled body was found lying in the hospital. The trial Court convicted the accused under Section 364 read with Section 34 IPC and sentenced them to 10 years' Rigorous Imprisonment. The accused preferred an appeal against their conviction before the High Court and the State also filed an appeal challenging the acquittal of the accused for murder charge. The accused had not given any explanation as to what happened to Mahesh after he was abducted by them. The learned Sessions Judge after referring to the law on circumstantial evidence had observed that there was a missing link in the chain of evidence after the deceased was last seen together with the accused persons and the discovery of the dead body in the hospital and had concluded that the prosecution had failed to establish the charge of murder against the accused persons beyond any reasonable doubt. This Court took note of the provisions of Section 106 of the Evidence Act and laid down the following principle in paras 31, to 34 of the reports:
31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty.
33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when 13 (2006)10 SCC 681 30 Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.14
42. In a recent judgment in Gargi Vs State of Haryana , again reconsidered the scope of Section 106 of Indian Evidence Act and held that:
33.1. Insofar as the "last seen theory" is concerned, there is no doubt that the appellant being none other than the wife of the deceased and staying under the same roof, was the last person the deceased was seen with. However, such companionship of the deceased and the appellant, by itself, does not mean that a presumption of guilt of the appellant is to be drawn. The trial Court and the High Court have proceeded on the assumption that Section 106 of the Evidence Act directly operates against the appellant. In our view, such an approach has also not been free from error where it was omitted to be considered that Section 106 of the Evidence Act does not absolve the prosecution of its primary burden. This Court has explained the principle in Sawal Das in the following :
"10. Neither an application of Section 103 nor of 106 of the Evidence Act could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused."
43. The principle laid down in Sawal Das Vs State of Bihar15, wherein the Court held that :
"Neither the application of Section 103 nor Section 106 of Indian Evidence Act, could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or, which makes out a prima facie case that the question arises of considering facts of which the burden of proof may lie upon the accused.14
(2019) 9 Supreme Court Cases 738 15 1974(4) SCC 193 31
44. In view of law referred above, when the prosecution is able to prove that the cause of death was unnatural and it is inside the house of the accused accessible to the accused alone during nights, the burden is upon the accused to establish the cause of death as suicidal hanging as set up by them in defence before the trial Court. In the examination of the accused under Section 313 of Cr.PC did not explain the reason for cause of death of Sarva Laxmi, but examined D.Ws. 1 and 2 whose evidence is artificial and not based on documentary evidence. More so, in the cross examination of P.Ws. 1 to 5, the defence counsel could elicit nothing to substantiate the plea set up by the accused i.e., suicidal hanging. Thus the appellants/accused miserably failed to explain the cause of death as contended by them as suicidal hanging in defence and failed to discharge the burden which rests on them after discharging the burden by the prosecution.
45. It is an undisputed fact that the deceased was last seen in the company of the accused and continued in their company in the house before her death and last seen theory is one of the circumstances which directly pointing out the complicity of the accused unerringly. In such case, it is for the accused to explain as to how Sarva Laxmi died, but the medical evidence disproved the defence set up by the accused. Accordingly, the point is answered in favour of prosecution and against the accused/appellants.
32POINT NO.3:-
46. The trial Court found accused Nos.1 to 3 guilty for the offence punishable under Section 498-A of Indian Penal Code and sentenced them to undergo Rigorous imprisonment for a period of two years each and also to pay a fine of Rs.1,000/- each, in default simple imprisonment for a period of six months each. The consistent case of the prosecution from the beginning is that Sarva Laxmi was subjected to cruelty for her failure to meet the illegal demand for payment of the balance of dowry of Rs.1,10,000/- and the husband of Sarva Laxmi/A1 forced her parents to execute promissory notes and mortgage deed/Exs.P18 to P20 as a security for due payment of the balance of dowry amount. It is also the case of prosecution that the dispute was referred to the elders and due to intervention of P.Ws. 4 and 5, the same was settled and Sarva Laxmi was sent back to her matrimonial home to lead marital life and later she died due to asphyxia by smothering.
47. As discussed in the earlier paragraphs, Sarva Laxmi's death was due to asphyxia by smothering, but an offence punishable under Section 498-A of IPC is totally different i.e., subjecting a woman to cruelty by the husband or his relatives in connection with payment of dowry is an offence. According to Explanation to Section 498-A of IPC, 'cruelty' means any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman or harassment of the woman where such harassment is with a view to coercing her or any 33 person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand would constitute cruelty.
48. To prove the case of prosecution, the prosecution examined P.Ws. 1 to 5. P.Ws. 1 and 2 are the parents and P.W.3 is the brother of deceased Sarva Laxmi, whereas P.Ws. 4 and 5 are the mediators, who settled the marriage and later settled disputes regarding harassment of Sarva Laxmi on account of failure to meet the illegal demand for payment of balance of dowry. The evidence of P.W.1 is consistent from the beginning that the marriage of Sarva Laxmi was settled with the accused and the parents of Sarva Laxmi agreed to pay dowry of Rs.1,50,000/- and only paid Rs.40,000/- at the time of marriage while agreeing to pay balance of dowry amount subsequently. But the appellant/accused obtained two promissory notes worth of Rs.1,10,000/- and Rs.25,000/- as a security for due payment of the amount besides obtaining mortgage of Ac.1.00 cents of land of P.W.1 in favour of the appellant/accused. This fact is supported by the evidence of P.Ws.2 and 3, who are the mother and brother of the deceased Sarva Laxmi and the accused also did not deny the execution of promissory notes and mortgage deed in favour of A1, but A1 gave a different explanation in his examination under Section 313 of Cr.P.C. According to his explanation, he lent an amount of Rs.1,45,000/- to P.W.1 and when appellant/accused demanded for repayment, P.W.1 executed two promissory notes and one 34 agreement, but the amount was not repaid. Therefore, the explanation of the appellant/accused assumes importance to decide whether those promissory notes and agreement were executed in connection with payment of balance of dowry or A1 himself lent amount to P.W.1.
49. In the evidence of P.W.1, he testified about the execution of documents marked as Exs.P18 to P20 as a security for due payment of balance of dowry agreed to be paid at the time of marriage and also spoke about the harassment and cruelty metted in the hands of accused by deceased Sarva Laxmi, on information by Sarva Laxmi to him personally and over phone and also about a reference of dispute to the elders, who pacified the situation due to their intervention and again she was sent back to lead marital life. He also testified about causing injuries on her body on the earlier occasion for her failure to meet the illegal demand of dowry. The said fact is supported by the evidence of P.Ws. 2 and 3 also. The reason for claiming additional dowry and demand of balance of dowry is that when A1 attended to betrothal function of brother of deceased Sarva Laxmi i.e., P.W.3, he came to know about the payment of dowry of Rs.5,00,000/- to P.W.3 and whereas A1 was paid meagre amount as dowry, therefore, he left the house of P.W.1 and started demanding payment of balance of dowry amount and additional dowry. This fact was elicited even in the cross examination of P.W.1 also. P.W.1 admitted in his cross examination that Ex.P1 is not reflecting that he executed a stamp paper agreement and also two promissory notes in favour of the 35 accused towards balance of dowry. Except that nothing was elicited to prove the contention of the appellant/accused that the documents were executed as a security for due payment of Rs.1,45,000/- he lent. A bald suggestion was put to P.W.1 that A1 never demanded for payment of amount and that P.W.1 has not executed any promissory note or any agreement in lieu of payment of balance of dowry of Rs.1,10,000/- The defence of the accused in examination under Section 313 of Cr.P.C was not put to P.Ws. 1 and 2 in their cross examinations, specifically with reference to the defence of the appellants/accused set up for obtaining the promissory notes and mortgage deed. When a specific defence is set up by the accused, it must be put to the witness who testified about the facts, otherwise the same cannot be accepted.
The observation of the Apex Court in M.B.Ramesh (D) by L.Rs.V.K.M.Veeraje Urs (D) by L.Rs. and Ors16 and Calcutta High Court in A.E.G.Carapiet V.A.Y.Derderian17 is relevant in this regard, it is extracted hereunder.
"Wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony given could not be disputed at all. It is a rule of essential justice.
In view of the law referred above, in the absence of any suggestion put to P.Ws. 1 and 2 that Exs.P18 to 20 were executed as a security for due payment of the amount lent by the appellants/accused to P.W.1, the same cannot be accepted.
Hence, it is clear that Exs.P18 to P20 were obtained only as a 16 AIR 2013SC 2088 17 AIR 1961 Cal 359 36 security for due payment of the balance of dowry amount agreed to be paid at the time of marriage.
50. P.W.4 is a marriage elder, who settled the marriage of Sarva Laxmi with A1 and he totally testified in support of the prosecution case with regard to agreement to pay dowry and payment of Rs.40,000/- as on the date of marriage and agreement to pay balance in future, so also about the disputes and death of deceased Sarva Laxmi. In the cross examination of P.W.4, he admitted that he is a junior paternal uncle by courtesy to the Sarva Laxmi, but he was not present at the time of agreement and execution of two promissory notes. He specifically asserted that P.W.1 has not borrowed Rs.1,40,000/- from A1 at any time and a suggestion was put to him that a panchayat was raised in connection with the amount borrowed by P.W.1 from A1 and the same was denied P.W.4. This piece evidence of P.W.4 is sufficient to establish that Exs.P18 to P20 were executed as a security for payment of balance of dowry amount, similarly the defence set up by the accused in his cross examination under Section 313 of Cr.P.C is falsified.
51. P.W.5 though independent witness, he did not support the prosecution case and the learned Additional Public Prosecutor though cross examined, could elicit nothing in the cross examination to support the case of prosecution.
52. On overall consideration of entire evidence of P.Ws. 1 to 4 including the answers to the last question by appellant/accused in their examination under Section 313 of Cr.P.C, it is clear that 37 Exs.P18 to P20 were executed as a security for due payment of balance of dowry agreed to be paid and those documents were recovered from the house of the appellant/accused during observation of scene of offence under cover of mediators' report Ex.P3 which is not disputed by the accused. More so, the defence set up by the appellants/accused that those documents were executed as a security for repayment of the amount which A1 lent, proved to be false.
53. As discussed above, the material established that Sarva Laxmi was subjected to cruelty and the dispute was referred to elders for settling the disputes on one occasion during her life time, but no complaint was lodged to the police. Normally, when such disputes arose with regard to non-payment of dowry or failure to pay additional dowry as demanded by husband or his relatives, the parents of the woman normally refer the matter to elders, who settle the marriage to keep the marital tie alive instead of disturbing it. If for any reason, a complaint is lodged, such complaint will precipitate and possibility of living together to lead marital life becomes bleak, therefore, no complaint was lodged and that by itself is not a ground to reject the case of prosecution, since every attempt made by P.Ws. 1 to 3 is to protect the marital tie or to keep the marital tie alive. The harassment metted by Sarva Laxmi in the hands of appellants/accused for her failure to meet the illegal demand for payment of dowry was established before the trial Court and the trial Court believing the evidence of P.Ws. 1 to 3 and seizure of Exs.P18 to P20 during observation report. We find 38 nothing to discredit the testimony of P.Ws. 1 to 4 to disbelieve the harassment metted by Sarva Laxmi in the hands of the accused for her failure to pay the balance of dowry, though P.W.1 executed two promissory notes and agreement under EXs.P18 to P20.
54. Though the appellants/accused set up defence specifically as narrated above did not examine any witness to substantiate the borrowing of Rs.1,45,000/- by P.W.1 and execution of documents. Hence, the defence set up by the accused is disbelieved rightly by the trial Court and this Court finds no illegality, warranting interference of this Court to reverse or set aside the finding recorded by the trial Court against the appellants/accused for the offence punishable under Section 498-A of IPC. Hence, the finding of the trial Court is hereby affirmed, finding the accused guilty for the offence punishable under Section 498-A of IPC. Accordingly, Point No.3 is answered in favour of the prosecution and against the appellants/accused.
In the result, The Criminal Appeal is dismissed. The Calendar and Judgment in Sessions Case No.88 of 2010, dated 30.11.2012 passed by Mahila Court, Visakhapatnam is hereby affirmed.
Consequently, miscellaneous applications pending if any in the Criminal Appeal, shall stand closed.
__________________________________________ JUSTICE M. SATYANARAYANA MURTHY ____________________________ JUSTICE B.KRISHNA MOHAN Dated: 29.05.2020 MP