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Judgment
Radhakrishna Rao, J.—These two appeals arise out of the judgment of the learned III Additional Sessions Judge, East Godavari at Kakinada in S.C. No. 316 of 1991, whereby the learned Addl. Sessions Judge acquitted A.1 of the offence punishable u/s 302 of the Indian Penal Code and convicted and sentenced him to undergo rigorous imprisonment for 1 1/2 years and to pay a fine of Rs. 200/- in default to suffer Simple Imprisonment for ten days for the offence punishable u/s 498A, I.P.C., and acquitted A.2 of the offences punishable u/s 302 and 498A of the Indian Penal Code.
Crl. A. No. 223 of 1992 is filed by A.1 against his conviction and sentence for the offence punishable u/s 498A, I.P.C. while Crl.A. No. 778 of 1992 is filed by the State against the acquittal of A.1 and A.2 for the offence punishable u/s 302 of the Indian Penal Code.
There were four accused in the Sessions Case before the learned Addl. Sessions Judge A.4 died during the pendency of the case and the case against him abated. A.3 has been discharged. Therefore, the learned Sessions Judge framed charges against A.1 and A.2.
There were the charges against A.1 and A.2. The first charge is that prior to 15-11-1990 and on 15-11-1990. A.1 and A.2 subjected Anisetti Lakshmi, the deceased who is the second wife of A.1, to cruelty by harassing and ill-treating her and put her to mental torture as to cause danger to her life and thereby committed the offence punishable u/s 498A I.P.C. The second charge against them is that on or about 15-11-1990 at about 9.00 p.m. at the house of the accused at Gollaprolu village committed the murder of the deceased by strangulating her throat and therefore liable for punishment under S. 302, I.P.C.
The case of the prosecution, in brief, is as follows : The deceased and the accused are residents of Gollaprolu. A.2 is the mother of A.1 and the deceased is the wife of A.1. Two years prior to 15-11-1990, A.1 married the deceased Lakshi as his second wife. Two months prior to that marriage, A.1''s first wife committed suicide. Through his first wife A.1 begotted two children and through the deceased A.1 was blessed with one female child A.1 and A.2 are harassing and ill-treating the deceased by picking up quarrels on the plea that she is not looking after the two children of A.1 through his first wife. The deceased used to mention her difficulties to her brothers and relative and they used to console her. On 15-11-90, the accused harassed and ill-treated the deceased both physically and mentally. On that day, the deceased went and reported to P.W. 5 who is a distant relative about the harassment and ill-treatment of accused and requested P.W. 5 to inform the same to her brothers. She was given food at the house of P.W. 5 on the afternoon and thereafter she was sent to her house by consoling her. The deceased came to the house at 4 p.m. on 15-11-90. On the night of 15-11-90, the accused in furtherance of their common intention of murdering the deceased conspired a plan and at about 9 p.m. all the accused murdered the deceased by strangulating her throat and created a drama as if the deceased committed suicide and sent persons to Kandrakota to inform her brothers about the death of the deceased. On receipt of information, the brothers of the deceased along with their relatives went to Gollaprolu to the house of the accused and found the dead body of the deceased laid in the front yard of the house. P.W. 1, Reddi Gangarao brother of deceased observed some injuries on the body of the deceased and suspecting that there was some foul play by the accused, he lodged a complaint (Ex. P.1) in the Gollaprolu Police Station on 16-11-90 at 7 a.m. which was registered as Cr. No. 100/90 u/s 174, Cr.P.C. The S.I. of Police then went to the scene of offence. He held inquest over the dead body in the presence of P.W. 11 between 9 a.m. and 12 noon and he examined P.W. 1, P.W. 3, P.W. 4, P.W. 5 and P.W. 9. Thereafter the body was sent for post-mortem examination to Kakinada. P.W. 12 who was working as Professor in Forensic Medicine, Rangaraya Medical College at the relevant time, conducted post-mortem certificate and issued Ex. P.8 post-mortem certificate. He opines that the cause of death is due to asphyxia due to ligature strangulation. He found seven injuries on the body of the deceased. In Ex. P.21 inquest report also some injuries are indicated. After the receipt of post-mortem certificate P.W. 14 altered the section of law into Ss. 302 and 201, I.P.C. and altered F.I.R. Ex. P.11 was issued. Thereafter, P.W. 17, the Deputy Superintendent of Police, Peddapuram took over the investigation in the case. P.W. 16 the Circle Inspector of Police arrested A.1 on 29-11-90. A.2 to A.4 surrendered before the Court. A charge-sheet was filed under Sections 302 and 498A, I.P.C. read with Section 34, I.P.C.
In support of its case, the prosecution has examined P.Ws. 1 to 17 and marked Exs. P.1 to P.15. As already stated A.3 was discharged while A.4 met natural death during the pendency of the sessions case.
Out of the witnesses examined, P.Ws. 4, 5, 6, 7 and 10 did not support the prosecution case and they turned hostile. P.Ws. 1 and 2 are the brothers of the deceased and P.W. 3 is the co-son-in-law of A.1. P.W. 8 is the nephew of A.1 and P.W. 9 is the brother of A.2. P.W. 10 is the brother-in-law of A.1. P.W. 11 is the inquest panchayatdar.
On a consideration of the evidence on record, the learned Judge found that A.1 and A.2 are not guilty for the offence u/s 302, I.P.C. He also found A.2 not guilty for the offence u/s 498A I.P.C., as P.W. 5 also has not complained anything about the overt acts that were attributed to A.2. However, the learned Judge found A.1 guilty of the offence punishable under S. 498A I.P.C.
When Crl. Appeal No. 778 of 1992 filed by the State came up for admission before a learned single Judge on 4-8-92, the appeal so far as against A.2 is concerned was dismissed and the appeal so far as A.1 is concerned was admitted. Therefore, we are now concerned with the offences punishable u/s 302 and 498A I.P.C. against A.1.
P.W. 1 the brother of the deceased who came to the house of A.1 after he was informed about the incident noticed some injuries on the body of the deceased. The inquest panchayatdars who were present at the time of inquest also found injuries on the neck, below chin portion, chest portion, left shoulder below and on the right side chest and they opined that she might have committed suicide by hanging or might have been killed. The purpose of inquest is to the extent of eliciting the fact whether the death is natural or unnatural or homicidal. The inquest report given an idea about the possibility of the cause of the death. The inquest report does not rule out the possibility of deceased having been ill-treated and killed.
P.W. 12 the doctor who conducted post-mortem examination found the following injuries on the dead body of the deceased.
"1. An obliquely placed abrasion of 14 x 2 cms. is present on front left part and left side of upper part of neck. It is reddish brown in colour, without any pattern, just below the angle of lower jaw.
An oblique abrasion of 9 x 1 cms. is present extending from the middle part of injury No. 1 downwards and towards front left part of neck, reddish brown in colour without any pattern.
Four linear small abrasions of each 1/2 cm. in length x 1/8 cm. are present on right side upper part of the neck at the angle of lower jaw region. It is reddish brown in colour.
Abrasion of 2 x 1 cms. present on right side middle part of the neck and reddish brown in colour.
An oblique abrasion of 1 1/2 x 1/4 cms. is present on inner aspect of left breast nipple region and reddish brown in colour.
An abrasion of 1 1/2 x 1/2 cms. is present on right breast nipple region and reddish brown in colour.
An abrasion of 1 1/2 x 1/2 cms. is present on back of left ankle region and redish brown in colour."
According to P.W. 12, the cause of the death is due to asphyxia due to ligature strangulation. According to him, injuries 5, 6 and 7 can be caused in the struggle and injury No. 1 cannot be caused by hanging. According to him, there is a distinction between hanging and death by strangulation. When P.W. 12 was examined by Court, he categorically says that the death is due to strangulation and there is no question of hanging and the abrasions on the body indicates the resistance offered by the deceased. Therefore, the evidence of P.W. 12 rules out the possibility of death by hanging and the death is due to strangulation. The seat of the injuries found on the body also indicate that the death is due to strangulation. On a consideration of the above, we are of the view that it is a case of death by strangulation. P.W. 1 and other relations were informed by the accused that the deceased committed suicide by hanging due to stomach pain. But this story put up by the accused has been falsified by the medical evidence. Therefore, we hold that the death is homicidal in nature.
So far as the offence u/s 498A, I.P.C. is concerned, the answers that were elicited from P.Ws. 1, 2 and the hostile witness P.W. 5, a resident of the same village, made us to feel that the cruelty as stated in general terms which ultimately resulted in the death has been brought out. P.W. 1 clearly stated that A.1 used to cruelly beat the deceased. P.W. 5 to whose house the deceased had gone prior to the incident on the date of offence stated that the deceased informed her that there were some disputes between her and A.1. It must be remembered here that in the case of the death of the first wife we cannot say under what circumstances she committed suicide and whether A.1 is responsible for the same. Sensitive ladies may commit suicide even for small disputes. So, we cannot definitely say whether A.1 alone is responsible for the death of the first wife. But, when a similar incident took place in the case of the second wife also, within a short space of time, immediately after the second marriage, the Court has to take a close scrutiny about the conduct of the person and the circumstances leading to the death. The 1st wife is alleged to have committed suicide. Now the 2nd wife is also alleged to have committed suicide by hanging, which was, however, falsified by the medical evidence. Therefore, a doubt throws about the conduct of the accused No. 1. On a consideration of the evidence of P.Ws. 1, 2 and 5, we are of the view that an offence u/s 498A has been made out and we are not inclined to interfere with the conviction and sentence made by the learned Sessions Judge for the said offence.
Though we have held that the death is homicidal in nature since, there is no direct or circumstantial evidence to show that the accused-appellant is the person who caused the death of the deceased by strangulation, an offence u/s 302, I.P.C. could not be brought out against A.1, though the medical evidence of P.W. 12 and the post-mortem certificate shows that the death was due to strangulation. So we have to find out under what section of law the accused can be convicted.
P.Ws. 4, 5, 6, 7 and 10 have turned hostile as there will be a natural tendency for them to support the local people as against the deceased who belongs to a different village. The natural tendency of these witnesses will be to support the accused party as they will have to face each other in the village daily and as there will be no necessity for them to face the relations of the wife who belongs to a different village. Since these witnesses have exhibited their natural conduct of supporting the local people i.e. accused in a case like this, it cannot be said that they have made a false version before the police and they gave a real version before the trial Court. They have given a false version in the trial Court in order to see that the accused are released. P.W. 8 and another are the persons who informed P.W. 1 and other relations. P.W. 8 states that they went in a taxi to the house of P.W. 1 and informed about the death of the deceased. P.W. 1 was informed that the death was due to pain. P.W. 8 states that the deceased committed suicide on account of stomach pain. P.W. 9 also states that he was informed by A.2 that the deceased hanged herself as she was unable to bear the stomach pain. But there is no evidence to show that the deceased has been suffering from stomach pain. No material has also been placed to show that she underwent treatment. Only persons having chronic stomach pains will have the tendency of committing suicide. But, in this case, there is no evidence to show that the deceased is a chronic patient of stomach pain. Further, the deceased was blessed with a child and normally a woman who was having a small baby will not entertain the idea of committing suicide even if she was suffering from any pain. Therefore, in the absence of any evidence to the effect that the deceased committed suicide on account of the stomach pain the plea of the accused cannot be accepted. P.W. 1 who came to the house of A.1 after the receipt of information about the death, found injuries on the body. According to P.W. 12, some injuries might have been caused during the resistance that was offered by the deceased during strangulation. Therefore, the deceased might have been strangulated in the house itself. No incriminating material objects used in the commission of the offence are available in the house, as the inmates of the house are none other than the accused. During the inquest also abrasions were noticed. The above circumstances coupled with the medical evidence, it is clear that the accused gave a false version to P.W. 1 and other relations that the death was by hanging due to pain. They mislead the relations and others about the cause of the death of the deceased, suppressing the real cause of the death of the deceased in order to escape from the legal punishment that may likely to arise on account of the death of the deceased. P.W. 5 clearly state that the deceased came to her house and they had some talk and deceased informed that there were some disputes between A.1 and herself, that A.1 and herself are cooking separately and that she would go away to her parents house two days later. So, the persons who are having knowledge about the death is only the inmates of the house and when they suppressed the real thing it can be inferred that they are having knowledge about the death and they deliberately and purposefully want to mislead the public in general and the relations of the deceased in particular. Therefore, we fell that it is a case of clear screening of the offence of murder. Where there is no possibility of outsiders entering the house of the accused, naturally the inmates of the house alone must be held to have the knowledge about the death of the deceased. Therefore, where the prosecution has failed to substantiate the charge u/s 302 of the Indian Penal Code and where the accused have misled the relations of the deceased and others that the deceased committed suicide by hanging and whereas the medical evidence indicates that the death was due to strangulation and not on account of hanging, this Court feels that even though the charge u/s 302 I.P.C. failed on account of the hostile nature exhibited by some of the prosecution witnesses on account of their local interest and affinity, the Court can convict the accused for the offence u/s 201, I.P.C. for screening of the offence of murder. It is a well settled proposition that where a charge u/s 302, I.P.C. has been framed and where the prosecution has failed to prove the same and where screening of offence has been made out and the accused person has got knowledge about the death and purposely misled the police and public, conviction u/s 201, I.P.C. can be made even without framing a charge. Though the medical evidence shows that the death was due to strangulation, since there is no evidence to establish that the accused appellant is the person who is responsible for the strangulation, we are unable to convict the accused appellant for the offence u/s 302, I.P.C., though we have held that they had the knowledge about the death of the deceased. Since the body was in their possession they might be aware of the cause of the death and since A.1 purposefully screened the offence by misleading the relations that the deceased committed suicide by hanging due to pain, in order to escape from legal punishment, he is liable to be convicted for the offence u/s 201, I.P.C. Further, the 1st wife of the accused is alleged to have committed suicide and now the second wife is also died under suspicious circumstances. This clearly throws a doubt as to the conduct of A.1. In view of the settled proposition stated above, we convict the accused No. 1 appellant for the offence punishable u/s 201, I.P.C. even in the absence of framing a chare for the said offence.
We, therefore, confirm the conviction and sentence imposed by the learned Additional Sessions Judge to suffer Rigorous Imprisonment for a period of one and half years and to pay a fine of Rs. 200/- in default to suffer simple imprisonment for ten days for the offence punishable u/s 498A, I.P.C. As far as the acquittal of A.1 for the offence u/s 302, I.P.C. is concerned, the judgment of the learned Addl. Sessions Judge is confirmed. But, A.1 is found guilty for the offence punishable u/s 201 of the Indian Penal Code and he is convicted and sentenced to undergo Rigorous Imprisonment for three years and he is also sentenced to pay a fine of Rs. 500/- (Rupees five hundred only) in default to suffer Simple Imprisonment for one month. Both the sentences on A.1 shall run concurrently.
The Crl. Appeal No. 223/92 filed by the appellant (A.1) is dismissed. Crl. Appeal No. 778/92 filed by the State is allowed in part.
Order accordingly.