Hyderabad v. Kandi Swamy and two others

JUDGMENT: (Per the Hon’ble Sri Justice Raja Elango) This appeal is filed by the State against the judgment and order of acquittal dated 20-07-2006 passed by the IV Additional District and Sessions Judge (Fast Track Court), Siddipet in S.C No. 6 of 2006. The prosecution story, as narrated during the course of trial, briefly stated, is as under: A-1 is the husband of Pushpa (hereinafter referred to as ‘the deceased’), A-2 is the mother of A-1 and A-3 is the brother of A-1. All of them are residents of Kasulabad Village of Mirdoddi Mandal. The marriage of A-1 was performed with the deceased at Kasulabad Village around five years prior to the incident. The mother of the deceased died in her young age. Bhoomavva who is the paternal aunt of the deceased adopted her and performed her marriage. At the time of marriage, Rs.1.00 lakh in cash, apart from household articles worth Rs.1.00 lakh were given as dowry. A-1 and the deceased lived happily for two years. Thereafter, A-1 being the husband and A-3 being the brother of A-1 started harassing the deceased physically and mentally demanding additional dowry of Rs.1.00 lakh. They have also threatened that in case their demand is not fulfilled, A-1 would marry another woman. The deceased informed the same to her aunt. In spite of the harassment, the deceased attended to the household work. As she failed to bring additional dowry amount A-1 to A-3 decided to kill the deceased one way or other. On 25-10-2004 at 4.00 p.m., A-1 to A-3 and the husband of A-2 harassed the deceased, tortured her and throttled her to death. In order to give colour that it was a suicidal death, they poured kerosene on the dead body and set fire. On coming to know about the death, Pampiri Mallesham (PW 1) and other relations rushed to the village and on observing that the death of the deceased was not suicidal, they presented a report on 26-10-2004 at 1.00 p.m., to the S.I of Police, P.S. Mirdoddi, who in turn registered a case under Section 302 read with 34 IPC and Sections 3 and 4 of Dowry Prohibition Act, 1961 against A-1 to A-3 and the husband of A-2, and issued F.I.R. He examined PW 1 and gave a requisition to PW 10 - the Mandal Revenue Officer, Mirdoddi to hold inquest over the dead body of the deceased. PW 12 - the Circle Inspector of Police, Siddipet Rural, who was in-charge of Thoguta Circle, took up investigation. He visited the scene of offence conducted panchanama at the scene of offence under Ex.P-15, prepared a rough sketch under Ex.P-16 and got the scene photographed in the presence of mediators. One yellow colour empty plastic can, one burnt blanket piece, black colour pant and wheat colour full hand shirt of the accused were seized from the scene. On completion of inquest, the body was sent to post mortem examination to hospital at Siddipet. PW 11 – Civil Assistant Surgeon at Area Hospital, Siddipet who conducted post-mortem examination of the deceased issued Ex.P-12 report opining that the death was due to shock-subdural haemorrhage as a result of head injury. During the course of investigation, PW 13 arrested A-1 and A-3 on 01-11-2004 and produced them for judicial remand. A-2 and her husband A-4, who were absconding, surrendered before Judicial Magistrate of First Class, Siddipet on 23-11-2004 and they were remanded to judicial custody. A-4 died while he was in judicial custody in District Jail, Sangareddy on 02-12-2005. The investigation disclosed that A-1 to A-3 and the husband of A-2 having received sufficient dowry amount at the time of marriage, started harassing the deceased for additional dowry and ultimately beat her, as a result, she died and later all of them set fire to her body and as such all the accused are liable for punishment. The Investigating Officer on completion of investigation, laid the charge sheet against the respondents - accused before the learned Judicial First Class Magistrate, Siddipet who registered it as PRC No. 31 of 2005 and later committed to the Court of Sessions. On committal, the learned Sessions Judge, Medak at Sangareddy registered the same as S.C No. 6 of 2006 and made over to the learned IV Additional District and Sessions Judge (Fast Track Court), Siddipet who framed the charges against the accused for the offences under Section 302 read with Section 34 IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961 and alternatively charge under Section 304-B was framed against the accused and explained the same to them in Telugu. The accused pleaded not guilty and claimed to be tried. To substantiate the guilt of the accused, on behalf of the prosecution PWs 1 to 13 were examined, Exs.P-1 to P-16 were marked and MOs 1 to 6 were produced. On behalf of the defence, no witness is examined and no document is marked. After closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C on the incriminating evidence. They denied the same and according to them, the death of the accused was by way of suicide. The learned Sessions Judge after analysing the oral and documentary evidence acquitted the respondents - accused. Questioning the same, the present appeal is filed by the State. Heard the learned Public Prosecutor and the learned counsel appearing for the respondents – accused. Among the 13 witnesses examined by the prosecution, except PWs 3, 10, 11 and 13 all other witnesses turned hostile. It is the case of the prosecution that in connection with demand for additional dowry, the respondents – accused tortured her and throttled her to death. To substantiate the same, the prosecution examined PWs 1 to 3 who are the close relatives of the deceased. PWs 1 and 2 turned hostile, as they have not stated anything in connection with the demand of dowry or regarding the said incident. PW 3 even though stated that he came to know that the death of the deceased was due to demand for additional dowry, he admits in the cross examination that he is not directly aware of the same. Further the deceased never visited the house of PW 3. In such a situation, his evidence also cannot be taken into consideration. Learned Public Prosecutor mainly contended that the post mortem certificate reveals that the death of the deceased was due to subdural haemorrhage because of the head injury and further contended that the prosecution proved that the death is homicidal in nature. It is true that the evidence adduced by the prosecution established the fact that the death of the deceased is homicidal in nature, but at the same time, PW 11, the doctor who conducted the post mortem examination of the deceased has not stated whether the burn injuries are ante mortem or post mortem in nature. Further, she admits in the cross examination that she has not noted any injury in the post mortem report. Thus, the prosecution miserably failed to substantiate that the death was due to subdural haemorrhage. In the absence of any admissible evidence to connect the accused with the crime, interfering with the judgment of the trial Court may not be proper. The prosecution claims that once the death is proved to be homicidal in nature, it is the duty of the accused to rebut the presumption since they are also charged for the offence under Section 304-B IPC. It is true that the death is proved to be homicidal in nature, hence, the burden shifts to the accused to rebut the same, but unfortunately in the case on hand, the doctor in her evidence has not stated whether the burn injuries are ante mortem or post mortem. Further, there is no evidence to substantiate that at the time of occurrence i.e., at 4.00 PM the accused were also present in the place of occurrence. In the circumstances, the Court cannot presume against the respondents – accused. Thus, we are of the view that the judgment and order passed by the learned trial Judge is not perverse in nature and there is no need to interfere with the same. In case of appeal against acquittal, it is well settled that when the entire evidence is pointing towards the guilt of the accused and there is only one possibility i.e., accused is the person who committed the offence, then the appellate Court can interfere with the order of the trial Court. When two views are possible on the basis of the evidence and one which is in favour of the accused was considered by the trial Court, there is no need to interfere with the order of the trial Court. In view of the same, the present appeal fails and the same is dismissed accordingly. A. GOPAL REDDY, J 05-07-2011 RAJA ELANGO, J