Md.Raheem , Md.Baba And 2 Others v. The State Of Ap., Rep By Pp

THE HON'BLE SRI JUSTI CE C. PRAVEEN KUMAR AND THE HON'BLE SMT JUSTI CE T. RAJANI CRI MI NAL APPEAL No.3 4 0 of 2 0 1 2 JUDGMENT: (per Hon'ble Sri Justice C. Praveen Kumar) A1 to A3 in SC.No.612 of 2010 are the appellants herein. They were tried for the offences punishable under Sections 302 read with 34,s 498-A of the Indian Penal Code and Section 4 of Dowry Prohibition Act.

2.

Vide judgment dated 13.07.2011 the learned IV Additional Sessions Judge, Karimnagar, convicted all the three accused for the offences punishable under Sections 302 read with 34 and 498-A IPC while acquitting them under Section 4 of Dowry Prohibition Act. All the three accused were sentenced to undergo imprisonment for life and to pay fine of Rs.2,500/ - each in default to undergo rigorous imprisonment for one year for the offence punishable under Section 302 IPC and they were also sentenced to undergo rigorous imprisonment of two years and to pay fine of Rs.1,000/ - each in default to undergo simple imprisonment for a period of six months for the offence punishable under Section 498-A IPC. 3.

The substance of the charge against accused is that on the intervening night of 08/ 09.12.2009 at Kothapalli village, all the accused with a common intention, strangulated deceased No.1 and her elder son D2 aged 6 years with a nylon rope and set the bodies on fire. 4.

The facts in issue are as under:

P.W.1 is the mother of D1 while P.Ws.2 and 3 are the brothers of D1. A1 is the brother-in-law, A-2 is the mother-in-law and A-3 is

the sister-in-law of D1. D2 is none other than the son of D1. About 8 years prior to the incident, the marriage of D1 was performed with the brother of A1. After marriage, both of them lived together for only one month and thereafter, the husband of D1 left to Saudi Arabia. It is said that, a year later, he returned to India. The material on record shows that out of the wedlock two children were born to them. Three years thereafter, the husband of D1 left for Saudi Arabia. It is stated that A1 to A3 were harassing D1 to bring Rs.50,000/ -. D1 is said to have informed P.W.1 that she is unable to reside there ands wanted to come to her residence. It is said that unable to bear the harassment, D1 came to the house of P.W.1 and started staying with her.

At that time, A3 came and questioned D1 as to how she came without making the payment of demanded amount of Rs.50,000/ -. A2 and A3 also came there and informed to D1 that her husband is returning from Saudi Arabia and that she should make herself available in their house. Believing the same, D1 is said to have gone to the house where the harassment continued for not bringing the demanded amount.

D1 informed P.W.1 that all the three accused were harassing her for fulfilling the demand of Rs.50,000/ -. P.W.1 advised her to be patient till arrival of her husband. Later, D1 made a call from the coin box informing that her phone was snatched away by accused and on the next day Sarpanch informed P.W.1 that D1 and D2 were set on fire. Immediately, thereafter, sP.W.1 went to Kothapalli village and saw the dead body of D1 and all the rubbish thrown on the body. When they enquired with the neighbours, they informed that they do

not know about the incident. Their youngest grandson Sohail informed P.W.1 that D1 and D2 were strangulated by A1 to A3 and then set the house on fire.

Based on the above information, P.W.1 lodged a report before P.W.16, the SI of Police, on 09.12.2009 at 3.00 PM. Basing on the report given by P.W.1, a case in Cr.No.383 of 2009 came to be registered for the offences punishable under Sections 498-A, 302 read with 34 IPC and Section 4 of Dowry Prohibition Act, which is filed as Ex.P9. After recording the statement of P.W.1, the Investigating Officer proceeded to the scene of offence where he recorded the statements of P.Ws.2 to 6 and also prepared a panchanama of the scene and rough sketch, which are placed on record and form part of crime record details, Ex.P5. Later, he also got the scene of offence photographed through P.W.6 and also conducted inquest over the dead bodies of deceased 1 and 2, Exs.P3 and P4 are the inquest reports of D1 and D2 respectively. Later, the two bodies were sent for post-mortem examination.

P.W.15, who was working as Civil Assistant Surgeon, Government Hospital, Karimnagar conducted post mortem on bodies of the deceased on 10.12.2009 and issued Exs.P7 and 8, post mortem examination reports. According to him, the cause of death was due to strangulation with asphyxia. According to him, both the bodies were burnt to the extent of 100% and that they could not mention the percentage of burns. He further stated that he could not observe any bone including the thyroid bone, as the entire body was burnt.

On 10.12.2009, P.W.18 took up investigation and recorded the statements of P.Ws.7 to 11, arrested the accused on 11.12.2009 and recorded confessional statement of A1 in the presence of P.Ws.13 and

14. He also recorded the confessional statement of A3 in the presence of same panchas.

Thereafter, P.W.17, the CI of Police, took up the investigation and after completing the investigation, filed the charge sheet, which was taken on file as PRC.No.33 of 2010 on the file of the Additional Judicial Magistrate of First Class, Karimanagar.

On appearance of the accused, the copies of the documents were furnished as contemplated under Section 207 of the Criminal Procedure Code and later, the case was committed to the Court of Sessions under Section 209 Cr.P.C. On committal, the case came to be numbered as SC.No.612 of 2010 on the file of the IV Additional Sessions Judge, Karimnagar.

On appearance of the accused, the charges referred to earlier came to be framed, read over and explained to the accused, to which the accused pleaded not guilty and claimed to be tried. In support of its case, the prosecution examined P.Ws.1 to and got marked Exs.P1 to P9 and M.O.1.

After completion of the prosecution evidence, the incriminating circumstances against the accused in the evidence of witnesses was put to them, to which they denied. But, however, the accused did not adduce any oral or documentary evidence on their behalf. Believing the evidence of P.Ws.1 to 2 and P.Ws.4 and 5 and basing on the circumstances relied upon by the prosecution; the Court below

convicted the accused. Assailing the same, the present appeal came to be filed.

3.

Learned counsel for the appellants mainly submits that there is absolutely no evidence to show that A1 to A3 were present in the house at that time of the incident. He further submits that the evidence of P.Ws.4 and 5, which is sought to be relied upon by the prosecution, would show any amount of doubt as to when the tin shed, where the deceased were living, got fire. He further submits that there is no reason for A3 to be present in the house, since she is married and living separately. Pointing out the discrepancies in the prosecution evidence, the learned counsel contends that the Court below erred in convicting the accused for the offence punishable under Sections 302 and 498-A IPC.

4.

On the other hand, the learned Public Prosecutor would contend that the fact that the deceased were brought to the house, stands established in the evidence of P.Ws.1, 4 and 5. He took us through the evidence of the witnesses to show that the accused were present in the house and that they are responsible for the incident in question. 5.

In view of the rival contentions, the question that arises is whether the Court below was justified in convicting the accused under Sections 498-A and 302 IPC.

6.

It is to be noted that there are no eye witnesses to the incident and the case rests on the circumstance of the deceased being present in the house of the accused and died due to asphyxia.

P.W.1 is none other than the mother of the deceased. In her evidence, she deposed that about 8 years ago the marriage of D1 took place with the brother of A1. Initially, her husband lived with D1 and thereafter, he left for Saudi Arabia. Later, he returned to India and stayed at Kothaplli for three years, during which time, they were blessed with two children. After three years, the husband of D1 left to Saudi Arabia and since then, the accused were subjecting D1 to harassment, by demanding her to get additional dowry of Rs.50,000/ -. According to P.W.1, the D1 came to her house unable to bear the harassment in the hands of the accused. It is said that A3 came to her house and scolded the deceased as to how she came there without paying Rs.50,000/ -.

Thereafter, A2 and A3 came to her house and asked D1 to come to their house since her husband was coming to Indian. After going there, D1 was subjected to lot of harassment, which was informed to P.W.1 over phone. However, P.W.1 asked D1 to be patient till the arrival of her husband. The evidence of P.W.2 also, in verbatim, is similar to the evidence of P.W.1. In the cross-examination, it was suggested to P.W.1 that the version given by her to the Magistrate is different to what she stated in the chief examination.

It was suggested to her that two months after the marriage, D1 came to Nirmal along with her husband and both of them lived for one month and thereafter, the husband of D1 left to Saudi Arabia and two years thereafter, he returned to Nirmal and lived in a rented house at Nirmal for four years where the two children were born and thereafter, he went to Saudi Arabia. After the husband of D1 left to Saudi Arabia, A1 and A2 came to the house of P.W.

Kothaplli to take D1 and her children. However, she stated that she does not remember whether she stated the above facts before the Magistrate. It was, however, elicited in the cross-examination of P.W.1 that D1 was living in a tin shed in the first floor in the house at Kothapalli and the steps to it are from outside and by climbing them one can reach the first floor. It is further elicited that there was no lock and key to the said shed. Her evidence further disclosed that the Sarpanch informed her about the death of the deceased at 6 AM, pursuant to which, she reached Kothaplli by 1 PM and by that time, the police, the sarpanch and neighbours were present. The suggestion, that she never informed about the harassment, was denied. 7.

Coming to the evidence of P.W.2, it was elicited in the cross-examination that her version is also to the effect that the youngest grandson of P.W.1, by name Sohail, informed P.W.1 that both the deceased were strangulated by A1 to A3 and then set them on fire. She also admits that the deceased was living in a tin shed in the first floor and the steps to it are from outside. According to her, by climbing them one can reach the first floor and there was no lock and key to the said shed. She also verbatim gives the answers, stating that the sarpanch informed them at 6 AM and by 1 PM they reached Kothapalli and by that time, the police, sarpanch and neighbours present, as stated by P.W.1. Her evidence in chief is verbatim similar to what was deposed by P.W.1.

8.

But one fact, which is to be noted here, is that both the witnesses in their evidence disclosed that after reaching the house of D1, their youngest grandson, Sohail, informed them about the manner

in which the incident took place but strangely, the said Sohail was not examined and no explanation is forthcoming as to why the prosecution did not choose to examine him. He would have been the best person to speak to the manner in which the incident took place. Further, the evidences of P.Ws.1 and 2 would show that the place where the two deceased were living was accessible from outside and there was no lock to the said premises.

9.

P.W.3, who is the elder brother of P.W.2, also gives evidence on the same lines as that of P.W.1 and exactly identical to P.Ws.1 and 2. So is the cross-examination. Hence, we feel it may not be necessary to repeat the said evidence. But, however, one thing, which requires to be mentioned, is that, in his cross-examination, P.W.3 admits that during eight years of the matrimonial life of D1, she lived for six months in two spells at Nirmal, with her children and her husband. 10.

P.Ws.4 and 5 are the neighbours. P.W.4, in his evidence, deposed that during 2009, when he was returning from some function at 11 PM, he noticed smoke emanating. He then proceeded to the spot and informed the fire station, whereby he was informed to stand on the main road. All the neighbours opened Grampanchayat water and controlled the fire. Then, they saw D1 and her son burnt. In the crossexamination, it was elicited that the entire stock of furniture was burnt along with the deceased. Later Police came there. A1 to A3 and Sohail were present and stated that it may be 8 PM.

The evidence of P.W.4, in our view, appears to be inconsistent. In the chief examination he stated that at 11 PM he saw the smoke

emanating from the spot whereas in the cross-examiantion, he deposes about the entire stock of furniture being burnt along with D1 and her son and that A1 and A3 were present at 8 PM, which is not the case of the prosecution at all. In the chief examiantion, P.W.1 never spoke about the presence of A1 to A3 in the house by that time. Coming to P.W.5, in his evidence, he stated that on 09.12.2009, while he was returning from Mazhid, he saw some flames in house of the deceased at about 5.30 AM; then, he along with neighbours poured water for controlling the fire. They saw two dead bodies at that place. The evidence of P.W.5 runs contra to what P.W.4 has stated. While P.W.4 speaks about seeing the flames at about 11 PM in the night, the arrival of the police and seeing the two dead bodies in the night itself, strangely, P.W.

5 speaks about seeing the flames at about 6.30 AM on the next day. Definitely, it cannot be said that the said house was continuously in flames from 11 PM in the night till 6.30 AM on the next morning, more so, when the neighbours poured water for controlling the fire and the fire station personnel were put on alert. 11.

P.W.7, in his evidence, deposed that the marriage of D1 took place 8 years prior to the date of the incident. There were disputes between D1 and her husband and in view of the same, D1 was kept at her parent's house and her husband left to Saudi Arabia. The accused brought the deceased from Nirmal and placed her in a tin roof portion in the upstairs of their house. They saw some flames in the morning and tried to extinguish fire by pouring water. His evidence clearly shows that after D1 was brought to Kothapalli, she was kept in a tin roof portion in the upstairs of the

house of the accused making it clear that the deceased was living separately from the accused.

P.W.8, in his evidence, states that on 09.12.2009 at about 6.30 AM, he saw a fire engine extinguishing fire, which fact was not stated by him to the police. P.W.9, who is a neighbour, in his evidence, deposed that his house is situated adjacent to the house of the accused and that there were disputes between D1 and her husband. They saw some flames in the morning and tried to extinguish fire by pouring water. So is the version of P.Ws.10 and 11. 12.

From the evidence, which we have referred to above, it is clear that there is no positive evidence on record to show that A1 to A3 were present in the house at the time of the incident. Apart from that, the evidence on record is not clear as to when the incident in question took place. While the charge sheet states that the deceased was burnt to death in the intervening night of 08/ 09.12.2009, the evidence of P.W.4 is to the effect that at 11 PM itself he saw smoke emanating from the house and he claims to have informed the fire station about the same. A reading of the cross-examination of P.W.4 indicates that the entire furniture was burnt along with both the deceased by 11 PM itself. Coming to the evidence of P.Ws.5 and 8 to 11, reveals that the flames were emanating from the house even at about 6.

30 AM, in other words, they saw the flames coming out from the tin shed at 6.30 AM. If really the tin shed was in flames by 8 PM as stated by P.W.4; P.Ws.9 and 10, who are neighbours living in adjacent houses to the house of the accused, would have informed the police about the smoke emanating from the house of the accused.

that there is material discrepancy as to when the incident in question took place, which goes to the root of the matter. 13.

Coming to the question of presence A1 to A3, as observed by us, that none of the witnesses spoke about the presence of the accused in the house on that day or the deceased and the accused living in one house. On the other hand, the evidence P.Ws.2 and 3 would show that the husband of D1 returned from Saudi Arabia and took a house at Nirmal, where they lived before he left to Saudi Arabia. In fact, A3 was married and no evidence is adduced by the prosecution to show as to whether she was really present in the house on that day. Further, the answers elicited in the evidence of P.Ws.

1 to 3, would show that after the deceased was taken by the accused, she was kept in a tin roof portion in the first floor, which was not having any lock and key to the door and one can reach the tin shed by stairs from outside and which permits only one person at a time. From the answers given by P.Ws.1 to 3, coupled with the evidence of P.W.7, who was a resident of the said place, it clearly discloses that the deceased was living in a tin roof in the first floor, which was not having proper door lock and was having independent access. So possibility of a stranger entering the house and committing the offence cannot be ruled out.

14.

Now the question is whether the accused are responsible for the death of the deceased or whether all or one of them is responsible, even if any of them were present. In order to test this, it is useful to refer to the evidence of P.Ws.1 to 3. In their chief examiantion, they deposed that A2 and A3 informed them that the husband of D1 was

returning from Saudi Arabia and asked D1 to join them at their house. But P.W.1, in the cross-examination, excludes the presence of A3. According to her, only A1 and A2 came to her house in the month of November 2009 and informed that her son-in-law is coming to Kothapalli to take away the deceased and her children.

That being the position, the case of the prosecution that all the three accused were present and responsible for the death of the deceased has to be doubted, more importantly, as to whether A3 was present in the house on that day.

15.

That being the position, the question as to whether all the three accused can be connected with the incident in question. Strangulation could have been done by anyone of the accused or A1 and A2 or A2 and A3 or by only one of the accused. When there is no positive evidence on this aspect, we feel that it may not be safe to convict all the three accused. As stated by us earlier, the best witness, to prove the entire case, would have been the youngest grandson of P.W.1, by name Sohail, who is said to have informed about the manner in which of the incident took place, after P.Ws.1 to 3, went to their house. For reasons best known, the prosecution has not placed on record the evidence of the eye witness. In view of the above finding, we feel that it is a case where benefit of doubt can be extended insofar as conviction under Section 302 IPC is concerned. 16.

Coming to the offence punishable under Section 498-A IPC, the evidence on record would show that A1 to A3 harassed and ill-treated the deceased demanding her to get additional dowry of Rs.50,000/ -. The said fact is also spoken to by P.Ws.1 to 3. In fact,

their evidence shows that consequent upon the harassment and ill-treatment meted out to the deceased, A1 to A3 also came to their house and made a demand. Hence, the finding of the Court below convicting the appellants/ accused for the offence punishable under Section 498-A IPC is sustainable.

In the result, the criminal appeal is allowed in part, the conviction and sentence recorded against the appellants - accused in SC.No.612 of 2010 dated 13.07.2011 on the file of the IV Additional District and Sessions Judge, Karimanagar for the offence punishable under Section 302 IPC are set aside and they are acquitted of the same. However, while upholding the conviction recorded against the appellants - accused for the offence punishable under Section 498-A IPC, the sentence imposed on them by the trial Court is reduced to the period already undergone by them. M.O.1 shall be destroyed as per the direction of the trial Court.

As a sequel, the miscellaneous applications, if any pending, shall stand closed.

__________________ C. PRAVEEN KUMAR, J __________ T. RAJANI, J July 17, 2018 DSK