Vs. Public Prosecutor, High Court of A.P.  Insc 932 (14 September 2007)
Thakker & P. Sathasivam
APPEAL NO. 243 OF 2007 P. Sathasivam, J.
This appeal has been preferred by the appellant being aggrieved by the judgment
of the High Court of Judicature, Andhra Pradesh at Hyderabad in Criminal Appeal
No. 2339 of 2004 dated 11.10.2006 reversing the order of the acquittal passed
by the II Addl. District and Sessions Judge (FTC), Nizamabad in Sessions Case
No.314 of 1998 convicting and sentencing him to undergo life imprisonment.
case of the prosecution is briefly stated hereunder:- The appellant herein was
the sole accused in Sessions Case No. 314 of 1998 on the file of II Addl.
District and Sessions Judge (FTC), Nizamabad. On 24.01.1997, at about 11.00 a.m., the accused caused the death of his wife - Vanga Vimala
by throttling her neck and in order to screen the said offence, hanged her dead
body to the ceiling fan. The further charge was that the accused was harassing
the deceased for dowry. The father of the deceased was examined as PW 1 and PW
2 is wife of PW 1. The deceased was given in marriage to the accused one year
prior to the date of incident. The accused and the prosecution witnesses are
residents of Gajulapet village. PWs 3 to 6 who are all residents of the same
village deposed about the quarrel between the deceased and the accused
regarding dowry and other matters. The offence took place on 24.01.1997 at
about 11.00 a.m. After coming to know the incident,
PW 1 rushed to the house of the accused and found the deceased her daughter
hanging to the ceiling fan with a new saree. He made a complaint to the police
(Ex. P-1) based on which a crime was registered. Based on the complaint of PW
1, the police took up investigation, noted the scene of offence, conducted
inquest over the dead body of the deceased, sent the dead body for post-mortem
examination, examined the witnesses and recorded their statements. The accused
was arrested on 03.02.1997 and after receipt of the final opinion from the
doctor, who conducted post-mortem examination and after completion of the
investigation, the police laid the charge sheet.
prosecution, in order to prove the guilt of the accused, examined as many as PWs
1 to 14 and marked Ex. P1 to P14. No oral or documentary evidence was adduced
on the defence side. The learned Sessions Judge, by judgment dated 25.04.2003
after finding that the doctor who conducted post-mortem cannot decide
preliminarily that the death was suicidal or homicidal and the prosecution
failed to establish that the accused himself is connected with the death of the
deceased, acquitted the accused under Section 235(1) Cr.P.C. for the offence
under Sections 302, 201 or 304B IPC.
Questioning the correctness of the acquittal of the trial Court, the State
through its Public Prosecutor filed Criminal Appeal No. 2339 of 2004 before the
Andhra Pradesh High Court. The Division Bench, by the impugned order dated
11.10.2006, after accepting the case of the prosecution and considering the
entire circumstances and finding that the prosecution has established the guilt
for offence under Section 302 beyond reasonable doubt sentenced the accused to
undergo imprisonment for life and also to pay a fine of Rs.1,000/-, in default,
to suffer simple imprisonment for 6 months. Challenging the said order of the
Division Bench, the accused has preferred the present appeal before this Court.
heard Mr. I. Venkatnarayana, learned senior counsel for the appellant and Mr. Debojit
Borkakati, learned counsel for the respondent.
only point for consideration in this appeal is whether the prosecution proved
the guilt of the accused beyond reasonable doubt and the High Court is
justified in convicting and sentencing the accused for the offence under
Section 302 I.P.C.
Before analyzing the case of the prosecution, it is relevant to mention that
during the pendency of this appeal, the appellant/accused filed I.A. No. 8289
of 2007 praying for permission to file additional documents, namely,
Annexure-A1 copy of alteration of Section of law filed by the Inspector of
Police before the trial Court on 25.01.1997 and Annexure-A2 copy of the charge
sheet filed by the Sub Divisional Police Officer, Nizamabad.
is seen from the documents - Annexures A1 and A2, the investigating agency,
based on the materials, arrived at a conclusion that the accused Vanga Sriniwas
suspected the character of the deceased and also tortured her for dowry and
when she failed to get the same, the accused murdered her by strangulation and
hanged the dead body to the ceiling fan with an intention to screen the offence
and, therefore, the offence under Section 304B and Section 201 IPC has been
established against the accused. In view of the above facts and circumstances,
the Section of law has been altered from 302 IPC to 304B and 201 IPC.
is not in dispute that the prosecution has not examined eye-witness to the
occurrence. In other words, there is no direct witness who, in fact, saw the
alleged offence. The prosecution case rests mainly on the circumstantial
evidence and let us consider whether the prosecution placed acceptable
materials to substantiate the charges leveled against the accused. It is
pertinent to mention that even after the alteration of charge, both the trial
Court as well as the High Court proceeded with a case as if the charge relates
to Section 302 IPC. As said earlier, the trial Judge mainly based on the
post-mortem report of the doctor acquitted the accused whereas the High Court accepted
the case of prosecution in toto and found guilty accused under Section 302 IPC
and imposed life imprisonment. With this background, let us analyze the case of
the prosecution and the defence of the accused.
The appellant/accused after marriage with the deceased Vanga Vimala were
staying in rented accommodation in H.No.9-8-734 in Gajulapet. The deceased used
to attend the household work of other houses. PW 1, who is the father of the
deceased, in his evidence deposed that after marriage the accused now and then
bring his daughter to his home. The accused was not bearing his wife going to
market and often questioned her while she was speaking with others. He used to
beat her by locking the house. He was demanding dowry and her daughter used to
tell all these whenever the accused brought her to his home. He was harassing
her for money and once gave her poison by mixing it into water, made her to
drink and when she refused; he pressed her throat and made her to consume it.
At the time of the incident, PW 1 was at factory and on receipt of information,
he went to the house of the accused and found her daughter hanging to a fan
with a new saree. It was he who made a complaint to the police. The complaint
is Ex. P-1. PW 2 wife of PW 1 and mother of the deceased also reiterated the
Mr. I. Venkatnarayana, learned senior counsel, by drawing our attention to Ex.
P-1 (complaint to the police), submitted that in the absence of any reference
to dowry demand/harassment, the statement of PW 1 as well as PW 2 before the
Court regarding demand of dowry by the accused is an afterthought and hence the
same was rightly not accepted by the learned trial Judge and the High Court
committed an error in convicting the accused. It is true that though there is no
reference in the complaint about the dowry demand, however, PWs 1 & 2 who are
none else than the parents of the deceased, in their evidence stated about
torture and dowry harassment by the accused. In this regard, it is relevant to
refer to the evidence of other witnesses, namely, PWs 3, 4 and 6. PW 3 is a
resident of Boigally, which is nearby to the vegetable market, Gajulapet.
According to her, on the date of incident, while she was going to the market
she saw the accused and his wife quarrelling with regard to dowry amount.
also heard the quarrels between the accused and his wife and asserted that Vimala
died for not bringing dowry. PW 4, resident of Gajulapet, also reiterated and
asserted that there were quarrels between the accused and his wife over demand
for dowry. Though PW 5, another resident of the same village turned hostile, PW
6, who is also a resident of Gajulapet, deposed before the Court that he
observed on many occasions the accused and his wife quarelling and the accused
demanding her to bring more dowry. The statement of these witnesses i.e. PWs 3,
4 and 6 cannot be lightly ignored when admittedly all of them are residents of
the same village particularly residing in and around the house of the accused.
said earlier, though no specific reference was made to dowry demand in the
complaint, if we consider the entire evidence of PWs 1, 2, 3, 4 and 6 coupled
with other circumstances, we are of the view that the accused harassed the
deceased and threatened her on many occasions for not fulfilling his demand of
dowry. No doubt, he not only threatened her but also doubted her fidelity and
was not able to bear with her when she interacts with others. It is not in
dispute that at the time of occurrence, the deceased and the accused alone were
inside the house. If it is a mere case of suicide, as rightly pointed out by
the prosecution, on seeing the same he could have raised an alarm or even
prevented her, instead he ran away from the scene of occurrence.
is useful to refer to the evidence of PW 8 and PW 9 who are attestors of
inquest report. PW 8 also a resident of Gajulapet, Nizamabad in her evidence
has stated that she along with PW 9 found Vanga Vimala hanging to the ceiling
fan and it appeared the neck of the deceased Vimala was tied with a saree. Both
PWs 8 and 9 expressed that the deceased had not committed suicide but she was
throttled and was hanged to the fan. They also observed that the feet of the
dead body was touching the cot beneath and the saree noose is loose. The above
statement of PW 8 and PW 9 is available in Ex. P-8 which is inquest panchnama.
It is also seen that during the inquest, the above said panchas also opined
that the accused used to suspect the fidelity of the deceased and he used to
beat her. PW 11 - Mandal Revenue Officer deposed that the inquest was held in
his presence and found marks around the neck and ear. In view of the fact that
the accused alone was in the company of the deceased, the evidence of PWs 8, 9
and 11 strengthen the case of prosecution that the deceased died due to
Now let us consider the medical evidence. Dr. R. Balaiah, who conducted
post-mortem on the body of the deceased, was examined as PW 10. According to
him, on 25.01.1997, he received a requisition from MPO, Nizamabad to conduct
autopsy on the body of Vimala. He and Dr. Rama Devi conducted autopsy and found
the following injuries:
Abrasions numbering four in the shape of nail markings vertically placed on the
left side of the neck.
Contusion measuring 2X1 inches on the right side of neck horizontally placed.
Ligature mark around the neck with a gap on the left side behind the ear.
above injuries are anti-mortem in nature. Injury No.1 is caused by nails and
injury Nos. 2 and 3 with a blunt object.
Fracture of hyoid bone right corn.
Fracture of 3,4,5,6,7th ribs on r/s and 4,5,6,7th ribs on the I/s near steno
castle junction. Lungs were congested, heart congested and peritoiral cavity
contains about 200 cc of clotted blood. Intestine and omintum stained with
intestine contused in different places. Liver, Spleen, Kidney are congested.
Uterus stained with blood.
was sent for chemical analysis.
result of analysis is there was no poisonous substance. The FBL report is
is preliminary Post-Mortem Examination report issued by myself and Doctor Smt. Ramadevi.
opinion as to cause of death is Asphysixi due to throttling. The final report
issued by both of us is Ex.P-12.
approximate time of death is 24 36 hours prior to PME."
in his preliminary report Ex. P-11, the doctor has not offered his opinion as
to the cause of death but in the final opinion, he has specifically stated that
the cause of death is "Asphysixi due to throttling". The analysis of
post-mortem report coupled with the evidence of doctor clearly show
of nail marks
over the neck
marks around the neck
of hyoid bone corn and
of 9 ribs right and left sides.
there was a suspicion that the deceased might have been poisoned on account of
the presence of some powder in the glass and a tablet that were present at the
scene of occurrence, in view of FSL report i.e. Ex. P-10, there is no proof to
the effect that the death was due to poison. On the other hand, the evidence of
panchas PWs 8 and 9 coupled with the medical evidence PW 10 as well as the
final report (Ex.P-12) clearly show that the deceased died on account of
The scene of observation report (Ex .P-9) prepared by the investigating officer
show that the house of the accused is located in the middle of other houses. In
view of the medical evidence and in conjunction with the other circumstances,
particularly the undisputed fact that at or about the time of Vanga Vimala's
death, no third person excepting the accused and the deceased, was present in
the house, it will inescapably lead to the conclusion that within all human
probability, it was the accused-appellant and none else, who had murdered the
deceased by strangulating her to death. We have already noted that the accused
alone was inside the house along with his wife, namely, the deceased. As
rightly pointed out by the prosecution, it is not the case of the accused that
any other person was residing with them in the same house particularly on the
fateful day. Further, as rightly pointed out, there was no explanation from the
accused as to when he left the house and came to know about the hanging of the
dead body and it would be right in arriving at a conclusion that he alone was
responsible for the commission of the offence. If we consider all the above
mentioned material circumstances coupled with the medical evidence, it is safe
to conclude that the death of the deceased was on account of strangulation. As
rightly pointed out, there was no possibility of any other person committing
the offence and the accused alone was responsible for the commission of the
offence. In such circumstances, we agree with the contention of the State
counsel that the prosecution placed sufficient evidence to establish the guilt
of the accused beyond reasonable doubt. As observed by the High Court, the
trial Court acquitted the accused only on the simple ground that the doctor,
who conducted post-mortem examination, did not offer cause of death in his
preliminary report, forgetting that in the final report particularly after
receipt of FSL report, the very same doctor has opined that the death was due
to "Asphysixi due to throttling". In the light of the materials
available, the conclusion of the trial Judge cannot be accepted and the High
Court taking into consideration the totality of the circumstances and the
entire materials was right in accepting the case of the prosecution and found the
Mr. I.Venkatnarayana, learned senior counsel, submitted that even if this Court
accepts the prosecution case in view of alteration of the charge, namely, from
Sections 302 to 304B and 201 IPC, the conviction and sentence for an offence
under Section 302 IPC by the High Court cannot be sustained. In the earlier
part of the judgment, we have referred to Annexures A1 and A2 which clearly
show that based on the materials collected the investigating agency altered the
offence from Sections 302 IPC to 304B and 201 IPC. The altered charge has not
been taken note of by the High Court while arriving at a conclusion against the
accused. In the earlier part of our judgment, we have referred to the relevant
materials with regard to demand of dowry, suspicion, harassment and torture by
the accused and the medical evidence as to the cause of death. In view of the
same and in the light of the altered charge memo as one of Section 304B instead
of 302 IPC, it is but proper to convict the accused only under Section 304B IPC
and not under Section 302 IPC as ordered by the High Court. As per sub-section
(2) of Section 304B IPC, the minimum sentence prescribed is 7 years and may
extend to imprisonment for life.
Considering the fact that the alleged occurrence took place on 24.01.1997 and
the appellant/accused undergone the agony for more than ten years, we are of
the view that a sentence of seven years would meet the ends of justice.
we modify the conviction and sentence imposed by the High Court; instead the
appellant/accused is convicted under Section 304 B IPC and impose a sentence of
seven years rigorous imprisonment.
the result, the appeal is allowed in part subject to the above modification.