Andhra Pradesh High Court - Amravati
Padala Kiran Kumar, Srikakulam Dist. vs P.P., Hyd on 1 February, 2022
Author: C. Praveen Kumar
Bench: C. Praveen Kumar
THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE DR.JUSTICE K. MANMADHA RAO
CRIMINAL APPEAL No.31 of 2015
JUDGMENT :(Per Hon'ble Sri Justice C. Praveen Kumar) Originally, A.1 to A.5 were tried for the offences punishable under Sections 304-B, 302, 498-A, 201 Indian Penal Code, 1860 [for short, "I.P.C."] and Sections 3 and 4 of Dowry Prohibition Act, 1961 [for short, "D.P.Act"].
2. Vide Judgment, dated 05.01.2015, learned Principal District and Sessions Judge, Srikakulam in Sessions Case No.66 of 2013, while acquitting A.2 to A.5 of all the above charges, convicted A.1 alone under Section 302 IPC and sentenced him to suffer Rigorous Imprisonment for life and to pay a fine of Rs.5000/-, in default, to suffer Simple Imprisonment for a period of six months; A.1 was further found guilty for the offences punishable under Sections 201 and 498-A IPC and sentenced to suffer Rigorous Imprisonment for a period of two years and to pay fine of Rs.2000/-, in default, to suffer Simple Imprisonment for a period of three (3) months; he was further found guilty for the offence punishable under Section 4 of D.P. Act and sentenced to suffer Rigorous Imprisonment for one year and to pay fine of Rs.2000/-, in default, to suffer Simple Imprisonment for three months. Though, a charge was framed for an offence 2 CPK, J & Dr.KMR, J Crl.A.No.31 of 2015 under Section 304-B IPC, the trial Court did not impose any sentence under the Section 304-B IPC though A.1 was found guilty for the said offence. The substantive sentences were directed to run concurrently.
3. The facts, in issue, are as under:
(i) A.2 and A.3 are the parents of A.1 while A.4 is the brother and A.5 is the sister of A.1. The deceased is the wife of A.1. Her marriage with A.1 took place on 17.05.2006 at the house of the accused. At the time of marriage, the parents of the deceased agreed to pay Rs.1,20,000/- and five Tulas of gold as dowry. At the time of negotiations, a sum of Rs.5000/- was paid as advance. A week prior to the date of her marriage, a sum of Rs.80,000/- was paid as dowry with a promise to repay the remaining amount of Rs.35,000/-, one year after the marriage. A.1 and the deceased were blessed with two children. It is said that even after payment of balance of dowry amount, the accused used to harass the deceased by demanding her to bring additional dowry, which was informed to her parents, who were examined as P.Ws.1 and 2.
(ii) It is said that as the harassment in the hands of the accused is increased, the deceased went to her parents‟ house and stayed there for two months. Thereafter, on the advice of the elders and on an assurance given by A.2, the deceased was sent back to her matrimonial home. While so, 3 CPK, J & Dr.KMR, J Crl.A.No.31 of 2015 the son of the deceased died. At that time, P.Ws.1 and 2 went to the house of the matrimonial house of the deceased, at which point of time, she informed that though her son was suffering with fever, he was not taken to hospital.
Apprehending threat to the life of the deceased from the hands of accused, P.Ws.1 and 2 brought back the deceased to their house. Later, A.1 along with one Nagam Jeevaratnam came to their house at Vizag for Dussehra festival and on their request, the deceased was sent back to her matrimonial house. P.Ws.1 and 2 invited A.1 and the deceased to their house for Sankranthi Festival, but only deceased was sent to the house of P.Ws.1 and 2 for festival. After staying for couple of days, the deceased went back to her in-law‟s house.
(iii) On 02.02.2012, the deceased telephoned to P.W.1 and informed about the harassment for additional dowry by the accused, as more dowry was given to several grooms in the village. P.W.1 convinced her to adjust herself. On 04.02.2012, one G. Krishna telephoned to P.W.1 informing about the death of the deceased. On the very same day, at about 7.15 A.M., A.1 telephoned to P.W.1 and informed about the deceased committing suicide by hanging herself in the house of one Jeevaratnam. On receipt of said information, the family members went and saw the dead body of the deceased, lying in the kitchen with a mark around the throat. 4
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(iv) P.W.1 along with other family members went to Pathapatnam Police Station on 04.02.2012 at 11.00 A.M., and lodged a report under Ex.P1 before P.W.11-Sub- Inspector of Police. Basing on the same, P.W.11 registered a case in Crime No.08 of 2012 under Sections 304-B and 498- A I.P.C. Ex.P11 is the F.I.R. He issued a requisition to Tahsildar, Pathapatnam for holding inquest over the dead body of the deceased.
(v) On receipt of information about the registration of the Crime, P.W.12-Sub Divisional Police Officer, Palakonda, proceeded to scene of offence at 12.30 P.M., observed the scene of offence. He noticed the dead body, lying in a kitchen room in the house of one Jeevaratnam. P.W.12 inspected the scene of offence in the presence of P.W.6. He noticed a saree hanging from a wooden beam, which was seized as M.O.1. He also got the same photographed. Ex.P12 are the photographs of the scene, while Ex.P2 is the scene observation report. He also prepared a rough sketch of the scene, which is marked as Ex.P13. Thereafter, inquest was held over the dead body in the presence of Tahsildar. Ex.P3 is the inquest report. At the time of inquest, he examined P.Ws.1 to 5 and others. Thereafter the dead body was sent to Government Hospital, Palakonda for Post Mortem examination.
(vi) P.W.10-Civil Assistant Surgeon, Area Hospital, Palakonda conducted autopsy over the dead body of the 5 CPK, J & Dr.KMR, J Crl.A.No.31 of 2015 deceased and noticed a ligature mark on the anterior aspect on the left side neck. Ex.P8 is the Post Mortem Certificate. According to her, the cause of death was due to cardio respiratory arrest due to strangulation. She further states that the approximate time of death is 24 to 36 hours prior to Post Mortem examination.
(vii) While things stood thus, on 06.02.2012 while P.W.6-V.R.O. was in Panchayat Office at Ganguvada village along with one D. Laxminarayana, V.R.O., Temburu village, A.1 came there and is said to have confessed that on 3rd, himself and his wife quarrelled for additional dowry and in that scuffle, he killed the deceased. According to him, the accused sought the help of P.W.6 as he apprehends danger in the hands of Police. The statement of A.1 was reduced into writing and the signature of the accused was obtained. Ex.P4 is the said statement. P.W.6 also prepared a report, which is marked as Ex.P5. Thereafter, P.W.6 along with A.1 went to the Police Station and handed over the two statements to Pathapatnam Police. P.W.12 interrogated A.1 and recorded his confessional statement. In the said statement, the accused disclosed that he would produce the saree and the torn shirt (due to scuffle) if he is taken to his house. Ex.P6 is the admissible portion of the said statement. After arresting the accused, P.W.12 took the mediators and staff to the house of Jeevaratnam, from where the accused 6 CPK, J & Dr.KMR, J Crl.A.No.31 of 2015 produced the saree fall and a torn shirt which are marked as M.Os.2 and 3 and seized under Ex.P7-Mediators report. On the same day night, A.2 to A.5 came to Police Station, surrendered before P.W.12. On 07.02.2012, steps were taken for modification of Section of Law.
4. After receiving the Post Mortem report and the RFSL report, the successor to P.W.12, filed a Charge Sheet, which was taken on file as P.R.C.No.16 of 2012 on the file of the learned Judicial Magistrate of First Class, Pathapatnam for the offences punishable under Sections 304-B, 302, 498-A, 201 IPC and Sections 3 & 4 of D.P. Act.
5. On appearance of the accused, copies of the documents, as required under Section 207 Cr.P.C., were supplied to them. As the offences are triable by a Court of Sessions, the case was committed to the Court of the Sessions under Section 209 Cr.P.C. Accordingly, the same was made over to the Court of the learned Principal District and Sessions Judge, Srikakulam for trial and disposal in accordance with law.
6. Basing on the material available on record, charges, as referred to earlier, came to be framed, read over and explained to the accused in Telugu to which, they pleaded not guilty and claimed to be tried.
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7. To substantiate its case, the prosecution examined P.Ws.1 to 13 and got marked Exs.P1 to P17 and M.Os.1 to 3. After the closure of the Prosecution evidence, the accused were examined under Section 313 Cr.P.C., with reference to the incriminating circumstances appearing against them in the evidence of the prosecution witnesses to which they denied. In support of their plea, they got marked Ex.D1. Since the circumstances relied upon by the prosecution are proved and form a chain of events connecting the accused with the crime, the learned Sessions Judge convicted A.1 while acquitting the A.2 to A.5. Challenging the conviction, the present appeal came to be filed by the appellant/A.1.
8. Sri H. Prahlada Reddy, learned Counsel appearing on behalf of Sri A. Ravi Shankar, learned counsel for the appellant, would submit that in the absence of any direct evidence with regard to the incident in question, it is difficult to believe that A.1 alone would have caused the death of the deceased and then hanged her to the ceiling, more so, when the other accused alleged to have participated in the offences were acquitted. He further submits that as P.Ws.4 and 5 were not declared as hostile, their evidence would clearly demonstrate the falsity in the case of the prosecution. Coming to the extra-judicial confession made before P.W.6, he would submit that the same cannot be relied upon as the 8 CPK, J & Dr.KMR, J Crl.A.No.31 of 2015 said person acted as a mediator in number of proceedings in the very same case.
9. Learned counsel further submits that things would have been different had the deceased died in the house of the accused or in the house of her in-laws. But, in the instant case, she died in the house of one Jeevaratnam who was neither shown as an accused nor as a witness. When there is no evidence on record to show that A.1 was staying along with the deceased in the house of Jeevaratnam, a doubt arises as to whether A.1 would have caused the death as alleged by the prosecution. Referring to various judgments of Hon‟ble Supreme Court, he would contend that it is a fit case where benefit of doubt should be extended to the appellant/A.1.
10. On the other hand, Sri K. Srinivasa Reddy, learned Public Prosecutor opposed the same, contending that if the evidence of P.W.1 is read in conjunction with the evidence of P.W.4, it stands established that A.1 was staying in the house of Jeevaratnam whenever the deceased used to live with him. Therefore, the argument of learned counsel for the appellant that there is no material, evidencing living of A.1 with the deceased in the house of Jeevaratnam cannot be accepted. He further submits that the circumstances of living together get fortified by the contents of the extra- 9
CPK, J & Dr.KMR, J Crl.A.No.31 of 2015 judicial confession made before P.W.6. Since the death took place within seven years of the marriage, the burden is on the accused to explain as to how the deceased died, when she is in his custody.
11. The point that arises for consideration is, whether the Prosecution was able to bring home the guilt of the appellant/A.1 for the offences punishable under Sections 302, 304-B, 201, 498-A I.P.C. and Section 4 of D.P. Act beyond reasonable doubt?
12. It is not in dispute that there are no eye witnesses to the incident. Definitely, one cannot expect presence of eye witnesses in a case of this nature. The question now is, whether A.1 alone can be held liable for the offence of murder, having extended the benefit of doubt to A.2 to A.5. In order to appreciate the same, it should be noted here that the marriage of the deceased with A.1 took place in the month of May, 2006. At the time of marriage, the parents of the deceased agreed to give dowry of Rs.1,20,000/- and five Tulas of gold besides „saare‟ articles. On the said date, an amount of Rs.5000/- was paid as advance. About a week prior to the date of her marriage, a sum of Rs.80,000/- was paid as dowry and on the date of marriage, five Tulas of gold ornaments were given to the deceased and A.1. After marriage, both of them lived a happy marital life for some 10 CPK, J & Dr.KMR, J Crl.A.No.31 of 2015 time and thereafter disputes arose between them. It is to be noted here that the balance dowry amount of Rs.35,000/- was agreed to be paid one year after the marriage, but however, since two months after the marriage, all the accused started harassing the deceased for balance dowry, by abusing and beating the deceased regularly for money. Unable to bear the harassment, the deceased initially stayed for two months in her parental house and thereafter went to her in-laws house on an assurance given by A.2 that she will be taken care of well. However, she again came back to her parents‟ house, during which time A.1 along with one Jeevaratnam (brother-in-law) came to the house and took the deceased assuring the well-being of the deceased. After the Sankranthi Festival i.e., on 04.02.2012, P.Ws.1 and 2 got information about the death of the deceased initially from one G. Krishna and later through A.1 that the dead body of the deceased was found in the kitchen room of one Jeevaratnam. The law was set into motion by lodging a report with the Police.
13. The question now is, whether A.1 can be held responsible to the death of the deceased in the house of one Jeevaratnam?.
14. As urged, the main argument advanced by learned Counsel for the appellant is that there is no evidence to show 11 CPK, J & Dr.KMR, J Crl.A.No.31 of 2015 that A.1 and the deceased were living together in the house of Jeevaratnam. He further submits that things would have been different, had Jeevaratnam been examined by the prosecution. It is not the case of the prosecution that Jeevaratnam was not alive or available, but for the reasons best known to them, Jeevaratnam was not examined. No reasons are forthcoming for not examining the said Jeevaratnam or arraying him as an accused since the dead body was found in his house. Keeping these circumstances in the background, we shall now proceed to deal with the case on hand.
Regarding Cause of Death:-
15. P.W.10 is the doctor, who conducted autopsy over the dead body of the deceased on 05.02.2012 between 9.00 and 11.00 A.M. She noticed a ligature mark on the anterior aspect on the left side of the neck. After receiving the RFSL report, she opined that the death was due to cardiac respiratory arrest due to strangulation.
16. Learned Counsel mainly submitted that the version of the prosecution that the A.1 hanged his wife and then made it appear to be a case of suicide, is absolutely false. According to him, it is practically impossible to believe that A.1 alone would have hanged the deceased either after killing her or while she was alive, more so, when the other accused 12 CPK, J & Dr.KMR, J Crl.A.No.31 of 2015 are acquitted. But, there is no evidence available on record to show the dead body was found hanging to the ceiling. The evidence of Investigating Officer only shows that the saree of the deceased was found hanging from the wooden beam. Even, P.W.6-V.R.O., who went to the scene of offence only speaks about the saree hanging to wooden beam in the house of Jeevaratnam.
17. Learned Counsel mainly stresses on the contents of Column No.XV of the inquest report to show that the deceased died by hanging herself with the saree to the beam of back yard room of the house. But, however the concluding portion of the Column No.XV of the inquest report states that the accused killed the deceased, as additional dowry demanded by them was not brought by the deceased.
18. P.W.5 in his evidence deposed that the deceased was hanged to death in the house of Jeevaratnam by all the accused. It would be appropriate to extract the same from the evidence of P.W.5, which reads as under:-
"About 2 years ago the deceased was hanging to death in the house of Jeevaratnam by all the accused. Police examined me."
The evidence of P.W.5 in our view runs contra to the evidence of other witnesses. While P.Ws.1 to 4 nowhere speak about seeing the deceased hanging, the evidence of P.W.5 is to the effect that the deceased was hanging to death in the house of Jeevaratnam by all the accused.
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19. It is well established that inquest is conducted only to know the cause of death of the deceased and the inquest report contains the gist of statement of the witnesses recorded at the time of inquest. It is not a substantive piece of evidence. Further, the inquest report cannot by itself be made the basis to either acquit or convict the accused. Learned counsel submits that though the prosecution case is that accused is said to have killed the deceased and then hanged her with a saree to the ceiling, but, none of the prosecution witnesses speak about the same (except P.W.5 who deposed as if all the accused hanged the deceased to death). But, however, the Charge Sheet as well as the third charge framed against the accused show that after killing the deceased the accused hanged her to a saree to simulate suicide with an intention to screen the offenders from legal punishment, for which no legal evidence has been adduced.
20. Relying upon the judgment of the Apex Court in R. Rajendra Nair vs. State of Kerala1, learned counsel for the appellant submits that it is impossible to believe that A.1 alone would have hanged the deceased to ceiling (in view of acquittal of A.2 to A.5). The situation in Rajendra Nair was that there was positive evidence to show that the appellant therein along with his brother hanged the deceased wife while she was alive. Since the brother of the appellant therein was 1 1997 (2) ALD (Crl.) 685 SC 14 CPK, J & Dr.KMR, J Crl.A.No.31 of 2015 acquitted, the Court found that it is difficult to believe that the accused alone would have hanged a living person. In the instant case though the Charge Sheet and the averments in the charge speaks about the accused hanging the deceased to a beam after strangulating her, but the evidence of P.W.5 adduced to that effect is totally contra. Having regard to the above, the judgment in Rajendra Nair's case supports the plea of the appellant that it is impossible for A.1 alone to hang a living person, when others are acquitted. Be that as it may, the question now is, whether the accused is responsible for the death of the deceased?
21. In order to substantiate the same, the Prosecution relied upon the extra-judicial confession made by A.1 before P.W.6. It is well established principle of law that an extra- judicial confession is a weak piece of evidence and the same should be made voluntarily and truthful. The extra-judicial confession can be accepted and be made the basis for conviction, if it passes the test of credibility. The same should inspire confidence and the Court should find out whether there are cogent circumstances on record to support it. [Sk. Yusuf vs. State of West Bengal, reported in 2011 (11) SCC 754; and Pancho vs. State of Haryana, reported in 2011 (10) SCC 165]. After analysing the judgments on 15 CPK, J & Dr.KMR, J Crl.A.No.31 of 2015 the said subject, the Hon‟ble Supreme Court in Sahadevan and another vs. State of Tamil Nadu2 observed as under:
"16. Upon a proper analysis of the above referred judgments of this Court, it will be appropriate to state the principles which would make an extra-judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused:
(i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.
(ii) It should be made voluntarily and should be truthful.
(iii) It should inspire confidence.
(iv) An extra-judicial confession attains greater credibility
and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.
(v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.
(vi) Such statement essentially has to be proved like any other fact and in accordance with law.
22. Keeping in view the principles laid down, it is now to be seen whether the extra-judicial confession made by A.1 before P.W.6 can be accepted. It is no doubt true that P.W.6 is a V.R.O. of Pathapatnam and also incharge V.R.O. of Peddamallipuram Village. The evidence on record show that he acted as panch for the scene of offence and also as a panch for the inquest proceedings in this very case. That being the position whether P.W.6 can be treated as 2 (2012) 6 SCC 403 16 CPK, J & Dr.KMR, J Crl.A.No.31 of 2015 independent witness or in other words whether it is possible to believe that the accused would have gone and made a statement before a person who was with the Police right from the date of incident. The issue somewhat identical to this case came up for consideration before the Bench of this Court, to which one of us was a party, in Morigondi Sampurna vs. State of Andhra Pradesh3. In paragraph 27 of the said judgment, the Division Bench while considering the evidence of P.W.15-V.R.O., who acted as a mediator to the observation of scene, inquest report and also seizure for M.O.5, held that in such circumstances it would be difficult to believe that A.1 who is the stranger could have gone and made a statement before him admitting his guilt.
23. As observed earlier, Courts should be careful in acting on the extra-judicial confessions, as it is a weak-piece of evidence, which requires corroboration in all material particulars, more so when it is made before a person who acted as panch witness to the Police proceedings in the very same case. Taking into consideration, the law laid down in the judgments referred to above, we feel that it is not safe to rely on the extra-judicial confession made by A.1 before P.W.6, more so, having regard to the admissions elicited in the cross-examination of P.W.6 that he is neither a friend nor relative of A.1 and A.1 never approached P.W.6 or had any 3 2019(2) ALD (Crl.) 688 AP 17 CPK, J & Dr.KMR, J Crl.A.No.31 of 2015 acquaintance with him coupled with he acting as panch witness to Police proceedings in this case.
24. The second circumstance relied upon by the Prosecution is that the accused along with the deceased was living in the house of Jeevaratnam on the date of offence. It is to be noted here that Jeevaratnam is related to the accused and on one occasion, A.1 along with Jeevaratnam came to the house of P.W.1 for taking the deceased. The evidence on record shows that A.2, A.3 and A.4 were living in the same village where Jeevaratnam was living. About four to five houses intervene in between the house of A.2 and A.3 and the house of Jeevaratnam. P.W.1 in his examination in chief nowhere speaks about the deceased and A.1 living in the house of Jeevaratnam. On the other hand, his evidence shows that after the marriage, the deceased has gone to the house of the accused to lead marital life. Both of them lived happily for two months and thereafter disputes arose between them because of harassment by all the accused for money. The evidence of P.W.1 also discloses that on receiving intimation about the death of the deceased, they went to the house of Jeevaratnam and found the deceased lying in the kitchen room of the house of Jeevaratnam.
25. Learned Public Prosecutor relied upon certain admissions in the cross-examination of P.W.1 to show that 18 CPK, J & Dr.KMR, J Crl.A.No.31 of 2015 A.1 and the deceased were staying in the house of Jeevaratnam. It would be appropriate to extract the said portion, which is as under:-
"I do not L.W.18-Subbarao. There are two daughters to A.5-Dhanalaxmi and I have seen there her children, but I do not know their ages. The A.5 Dhanalaxmi staying her husband and children separately but in the same village. There are about 4 or 5 houses in between the house of A.2 and A.3 and the house of Jeevaratnam. Except for sleeping during nights A.1 was staying along with his parents in the same house."
26. The answers elicited in the cross-examination of P.W.1 do not disclose that A.1 and the deceased were living or sleeping in the nights in the house of Jeevaratnam. He only states that there are about 4 or 5 houses in between the house of A.2 and A.3 and the house of Jeevaratnam. Except sleeping during nights, A.1 was staying along with his parents in the same house. By this, learned Public Prosecutor wants the Court to infer that A.1 and the deceased were sleeping in the house of Jeevaratnam. If really, both of them were sleeping in the house of Jeevaratnam, nothing prevented the Public Prosecutor to recall P.W.1 and get a clarification on the answer given by him, after all he is the prosecution witness and definitely the Prosecutor could have recalled him for clarification at any time, which was not done. Further, if really they were sleeping in the house of Jeevaratnam, the deceased would 19 CPK, J & Dr.KMR, J Crl.A.No.31 of 2015 have informed P.W.1, but no such information was ever furnished to P.W.1.
27. On the other hand, P.W.2, who was the mother of the deceased, in her evidence categorically says that the accused and the deceased while living in the house of the accused, all the accused were harassing the deceased for additional dowry. When the son of the deceased died, P.W.2 along with other family members went to the house of the accused where she was informed about the suffering of her grandson and the accused not taking the son of the deceased to the hospital. Her evidence is silent as to whether the accused and the deceased were living in the house of Jeevaratnam. If really the deceased was living in the house of Jeevaratnam, the deceased would have definitely informed the same to her, as the deceased is said to have called P.Ws.1 and 2 even on 02.02.2012 and complained about harassment for additional dowry in the hands of the accused. But, there is no whisper about the deceased living in the house of Jeevaratnam.
28. In the cross-examination, learned counsel for the accused elicited that P.W.2 failed to mention the quantum of dowry amount demanded by the accused as additional dowry. It was further elicited that P.W.2 does not know where actually the deceased died. To a suggestion that the deceased did not die in the house of Jeevaratnam was 20 CPK, J & Dr.KMR, J Crl.A.No.31 of 2015 denied. To a suggestion that A.1 got separated from his parents and brothers and also partitioned the property was denied. It would be appropriate to extract the relevant portion, which reads as under:-
"....It is true that I did not state to Police what was the quantum of amount demanded by the accused as additional dowry. It is true that A.2 to A.4 are living in one house but not in the house of Jeevaratnam. It is not true to suggest that the deceased was always statying with us at one house most of the times after her marriage. It is not true to suggest that the accused never harassed the deceased and never beat her and never demanded her to bring additional dowry. It is not true to suggest that I did not state to police that Gali Krishna informed us that the deceased died at the house of Jeevaratnam.
I do not know where the actually the deceased died. It is not true to suggest that dying of the deceased at the house of Jeevaratnam is false. It is not true to suggest that A.1 got separate from his parents and brothers and their properties were also partitioned....."
Even, the answers elicited by the learned counsel for the accused in the cross-examination of P.W.2, which the learned Public Prosecutor wants to take advantage of, do not establish that A.1 was living in the house of Jeevaratnam. At the most, the admissions would establish that A.2 to A.4 were not living in the house of Jeevaratnam.
29. Coming to the evidence of P.W.4, she in her evidence deposed that she was one of the person who were present at the time of fixing the alliance between the A.1 and the deceased. In the cross-examination, she admits that A.1‟s house is situated to the West of her house and on East of her 21 CPK, J & Dr.KMR, J Crl.A.No.31 of 2015 house is the house of Chigulla Laxminarayana, and to the East of the said Laxminarayana‟s house is the house of one Chigulla Subbarao. According to her, there were rumours in the village that the deceased used to go to burial ground where her son was cremated. She admits that she used to see the deceased going to burial ground. She further admits that A.1 never stayed in the house of Subbarao along with the deceased at any time. She further admits that in the absence of deceased, A.1 used to stay in the house of his parents. She further admits that she has not heard any disputes between the deceased and A.1 and they were living on proper terms. It would be appropriate to extract the relevant portion, which is as under:-
"There were rumours in the village that the deceased used to go to burial ground where her son was cremated. It have also see to go her to burial ground. The A.1 never stayed in the house of Subbarao along with his wife at any time. It is true that in the absence of deceased Laxmi. A.1 Kiran Kumar used to stay in the house of his parents. I hae not heard any disputes between the deceased and A.1 and they were living on proper terms."
From the evidence of this witness, it does not establish that the deceased and A.1 were living in the house of Jeevaratnam. Infact, there is no reference to Jeevaratnam in the evidence of P.W.4 and A.1 and the deceased staying in the house of Jeevaratnam. On the other hand, P.W.4 while referring to the name of one Subba Rao states that A1 and 22 CPK, J & Dr.KMR, J Crl.A.No.31 of 2015 deceased never stayed in the said house. The importance of the said answer will be dealt shortly.
30. In so far as the evidence of P.W.5, he is also a resident of Koikundam Village, who knows the accused, deceased and P.Ws.1 and 2. He acted as an elder to the marriage. In the cross-examination, he admits that the house of Jeevaratnam is 10 houses away from the house of A.2 and A.3 and the deceased and all the accused were residing together in the same house. It would be appropriate to extract the relevant portion, which reads as under:-
"The house of A.2 and A.3 is situated about 10 houses away from the house of Jeevaratnam. The deceased used to go to her parents' house on the occasions of festivals. All the accused and deceased was residing together in same house."
31. At this stage, it would be appropriate to refer the evidence of P.W.6 who was working as V.R.O. at Pathapatnam and who acted as a panch for the scene observation report and inquest. He, in his cross- examination admits as under:-
"It is true that in Ex.P2 report the scene of offence was observed at the house of Chigulla Subbarao. It is true that in Ex.P3 inquest report it is written that the inquest was held at the Varandah of the house of Chigulla Subbarao. I know the house of Chigulla Subbarao. It is true there are two houses between the houses of Jeevaratnam and Chigulla Subbarao. Witness volunteers that Chigulla Subbarao was temporarily staying at the house of Jeevaratnam and for that reason it was mentioned like that."23
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32. A reading of the evidence of P.W.6 gives a totally different picture. According to him, the scene of offence was observed at the house of Chigulla Subbarao and in Ex.P3- inquest report it was mentioned that the inquest was held in the house of Chigulla Subbarao. According to him, there are two houses between the house of Jeevaratnam and Chigulla Subbarao. Witness volunteers and states that Chigulla Subbarao was temporarily staying in the house of Jeevaratnam and for that reason it was mentioned like that. Neither Jeevaratnam nor Chigulla Subbarao were examined by the prosecution. No explanation is forthcoming for the same. The answers elicited in the cross-examination of this panch witness, show as if, everything happened in the house of Chigulla Subbarao. Realising the mistake, he adds "as Chigulla Subbarao was staying in the house of Jeevaratnam it was mentioned like that". Nowhere in evidence, it has come on record that Chigulla Subbarao was staying in the house of Jeevaratnam. Therefore, it is clear from the above evidence that the prosecution is not coming forward with the true version of the case.
33. The answers elicited from the cross-examination of witnesses would create a doubt as to (1) whether really the death occurred in the house of Jeevaratnam, (2) No evidence has been adduced to show A.1 was in the house of Jeevaratnam on that day, as he used to stay with his 24 CPK, J & Dr.KMR, J Crl.A.No.31 of 2015 parents [P.W.1 & 2 evidence], (3) All the accused and the deceased were staying in the same house [P.W.5.]. (4) whether the death was in the house of Chigulla Subbarao or in the house of Jeevaratnam since the inquest was conducted in the varandah of the house of Chigulla Subbarao [P.W.6.]. (5) There is no evidence on record to show that Chigulla Subbarao was staying in the house of Jeevaratnam, to establish that the place where the dead body is found, is that of the house of Subbarao though it is the house of Jeevaratnam. (6) No explanation is forthcoming from the Prosecution as to why Jeevaratnam and Chigulla Subbarao were not examined. Had they been examined, there would have been a clear picture about involvement of A.1.
34. Ergo, the evidence on record show that A.1 never stayed in the house of Chigulla Subbarao at any time and on the other hand he used to stay in the house of his parents (P.W.4). The admission in evidence of P.W.1 that A.1 used to live with his parents in the absence of deceased, does not lead to an inference that A.1 and the deceased were living in the house of Jeevaratnam when she was with A.1 moreso when the other evidence on record disclose that all the accused were living together. Having regard to all the circumstances and in the absence of evidence to show that on the date of offence A.1 was in the house of Jeevaratnam 25 CPK, J & Dr.KMR, J Crl.A.No.31 of 2015 or in the house of Chigulla Subbarao, (If really, Chigulla Subbarao was staying in the house of Jeevaratnam) (no evidence to that effect) we feel that it may not be safe to convict the accused on the basis of this evidence which does not conclusively establish involvement of A.1 for the offences punishable under Sections 302, 201 I.P.C.
35. It is no doubt true that death took within seven years of the marriage. Even assuming that there is evidence with regard to demand for additional dowry and harassment for not bring the same, but when the involvement of A.1 in the cause of death is doubtful or that the deceased committed suicide due to harassment for dowry and when the body is not found in the house of accused and there being no evidence that it was A.1 who shifted the deceased to the house of Jeevaratnam after the incident, the conviction under Section 304-B IPC also cannot be sustained. However, having regard to the evidence of P.Ws.1 and 2 the conviction and sentence imposed under Section 498-A IPC and Section 4 of D.P. Act are upheld.
36. Accordingly, the Criminal Appeal is allowed in part. The conviction and sentence, recorded against the appellant/A.1 in the Judgment dated 05.01.2015, in Sessions Case No.66 of 2013 on the file of Principal District and Sessions Judge, Srikakulam, for the offences punishable 26 CPK, J & Dr.KMR, J Crl.A.No.31 of 2015 under Sections 302, 304-B, 201 IPC, is set aside and the accused is acquitted for the said offences. However, the conviction and sentence imposed for the offences punishable under Section 498-A IPC and Section 4 of D.P. Act against the appellant/A.1 is confirmed. Consequently, the appellant/A.1 shall be set at liberty forthwith, if he is not required in any other case or crime. The fine amount, if any, paid by the appellant/A.1 for the offences punishable under Section 302 and 201 IPC shall be refunded to him.
Consequently, miscellaneous petitions, if any, pending shall stand closed.
_______________________________ JUSTICE C. PRAVEEN KUMAR __________________________________ DR. JUSTICE K. MANMADHA RAO Date: 01.02.2022 MS 27 CPK, J & Dr.KMR, J Crl.A.No.31 of 2015 THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR AND THE HON'BLE DR. JUSTICE K. MANMADHA RAO CRIMINAL APPEAL NO.31 OF 2015 (per Hon'ble Sri Justice C. Praveen Kumar) DATE: 01.02.2022 MS