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Thursday, January 9, 2014

Sec. 498 A, Sec.304 B and Sec.302 of I.P.C. = Circumstantial evidence -Extra -judicial confession high court negatived - Four portions of house - benefit of doubt possible who strangulated the deceased -Sec.302 I.P.C. not applicable as death occurred in first floor-Sec.498 -A of I.P.C. proved - Death occurred with in 7 years - Presumption comes Sec.304 B of I.P.C. as both are wife and husband living together - Sentence modified from sec.302 I.P.C. to under sec.304 B I.P.C. = Donthula Ravindranath @ Ravinder Rao …Appellant Versus State of Andhra Pradesh …Respondent = 2014 ( January - Vol -1 ) judis.nic.in/S.C./filename=41131

    Sec. 498 A, Sec.304 B and Sec.302 of I.P.C. = Circumstantial evidence -Extra -judicial confession high court negatived - Four portions of house - benefit of doubt possible who strangulated the deceased -Sec.302 I.P.C. not applicable as death occurred in first floor-Sec.498 -A of I.P.C. proved - Death occurred with in 7 years - Presumption comes Sec.304 B of I.P.C. as both are wife and husband living together - Sentence modified from sec.302 I.P.C. to under sec.304 B I.P.C. =

PW14 opined that the  cause  of
death is “shock due to asphyxia  on  account  of  strangulation”.   
The
learned counsel relied upon various passages from  Modi’s  Textbook  of
Medical Jurisprudence in a bid to establish that having regard  to  the
nature of the external injuries on the body of the deceased, the  death
of Jyotsna is  a  result  of  hanging  but  not  strangulation  thereby
creating doubt about the credibility of the prosecution case.

 [1]    We notice from the evidence of doctor that he is of the opinion  that
asphyxia can occur either because of strangulation or  hanging.  Only  by  a
very close scrutiny of the symptoms the  exact  cause  of  asphyxia  can  be
identified.
We must at the outset state that one of  the  five  circumstances
relied upon by the prosecution to establish the guilt of the  appellant
i.e. the alleged extra-judicial confession made by the appellant before
PW9  is  disbelieved  by  the  High  Court.    
Therefore,   only   four
circumstances remain, they are: 
(i) the appellant and the deceased were
husband and wife; and 
(ii) they were living in the same  house.   These
facts are not even disputed by the appellant.  
The  third  circumstance
relied upon by the prosecution is that the deceased was harassed by the
appellant for additional dowry.  
The said  circumstance  is  abundantly
established by the evidence of PW1 to PW4.
The fourth circumstance that the death of Jyotsna in the opinion[1]  of
the doctor was caused by strangulation (we do not  propose  to  examine
the correctness of the opinion) even  if  believed  need  not,  in  our
opinion, lead to the conclusion that it is only the accused who must be
held responsible for such strangulation.  The  building  in  which  the
accused and the deceased were living consists of  four  portions  where
others were also living.


Even if we give the  benefit  of  the  above  mentioned  doubt  to  the
appellant, the appellant cannot escape his liability for a charge under
section 304B IPC which creates a legal fiction.  All the ingredients of
section 304B are satisfied in the  instant  case,  that  the  death  of
Jyotsna occurred within seven years of her marriage the death  occurred
otherwise  than  under  normal  circumstances  and  that  Jyotsna   was
subjected to harassment which amounted to cruelty within the meaning of
section 498A IPC of which charge the appellant is also found guilty  by
both the courts below.

  In the light of the abovementioned circumstances,  the  appellant
in our opinion must be found guilty for an offence under  section  304B
IPC.  He was infact charged at trial for the said offence  though  both
the courts below failed to record any  finding  in  this  regard.   The
offence under section 304B IPC is punishable with the  sentence  for  a
term which may not be less than seven years but  which  may  extend  to
imprisonment for life.  We, therefore,  alter  the  conviction  of  the
appellant for an offence under section 302  IPC  to  an  offence  under
section 304B  IPC  and  reduce  the  sentence  to  the  period  already
undergone (we are informed that the appellant is in jail for  almost  a
decade).  He may be released forthwith if not  required  in  any  other
case.  The judgment under appeal is modified accordingly.

  2014 ( JANUARY - VOL-1 ) JUDIS.NIC.IN / S.C./FILENAME = 41131

                                                      Non-reportable

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.594 OF 2009


Donthula Ravindranath @ Ravinder Rao         …Appellant
            Versus
State of Andhra Pradesh                            …Respondent





                               J U D G M E N T



Chelameswar, J.

1.    This is an appeal against the  judgment  of  the  High  Court  of
Andhra Pradesh in Criminal Appeal No.203 of 2005 dated 5th  June  2007.
By the said judgment, the High Court confirmed the judgment  dated  8th
February 2005 in Sessions Case No.23 of 2004 on the file of the V-Addl.
Sessions Judge (Fast Track Court) at Nizamabad.

2.    The sole appellant herein along with his parents was tried for the
offences under section 304B and 498A IPC.
Apart from that the appellant
herein was tried for an offence under section 302 IPC simplicitor while
all the three persons were charged and  tried  for  the  offence  under
section 302 read with section 109 IPC.  
While the sole appellant herein
was convicted for the offence under section 302 as well as section 498A
IPC, the trial court did not record any finding against  the  appellant
herein insofar as the charge under section 304B IPC is concerned.   
The other two accused were acquitted of all the charges.

3.    Aggrieved by the conviction and sentence, the  appellant  carried
the matter in appeal to  the  High  Court  unsuccessfully.   Hence  the
present appeal.

4.    The wife of the appellant by name Jyotsna died on 21st May  2003.
The deceased Jyotsna  and  the  appellant  married  sometime  in  1998,
therefore, the death of Jyotsna took place within seven years from  the
date of marriage.
The prosecution case rested  on  the  circumstantial
evidence.  
The prosecution relied on five  circumstances  to  establish
the guilt of the appellant herein, they are — 
(i) the deceased and  the
appellant were wife and husband; 
(ii) they  were  living  in  the  same
house; 
(iii) the deceased was harassed by the appellant for  additional
dowry; 
(iv) according to the  medical  evidence  though  the  body  was
allegedly found hanging it was infact  a  case  of  strangulation;  and
lastly an extra-judicial confession was made by A-1 before PW9.

5.    To establish the above circumstances the prosecution examined  as
many as 16 witnesses.  PW1, PW2 and PW4 are the parents and brother  of
the deceased respectively.  PW5 and PW6 are neighbours  and  PW7  is  a
resident of the locality who according to the prosecution saw the  dead
body hanging by a lungi to the roof.  PW14 is the doctor who  conducted
post mortem examination on the dead body on 22.5.2003.    PW15  is  the
Sub-Inspector of Police/Station House Officer attached  to  the  V-Town
Police Station, Nizamabad, Andhra Pradesh, who initially  registered  a
crime under section 304B IPC on the report (Ex.P1) made by PW1.   PWs1,
2 and 4 were examined to prove the factum of harassment  for  dowry  by
the appellant herein.  PW3 is the husband of the sister of the deceased
who was also examined for the purpose of  establishing  the  harassment
for dowry.  Their evidence remains  unimpeached  and  both  the  courts
below believed their version insofar as the appellant is concerned.

6.    PW7 is a resident of the locality where  the  appellant  and  the
deceased  lived.   According  to  the  prosecution,  he  went  to   the
appellant’s house at 8.30 a.m. on the fateful day in order  to  collect
some amount due from A-1.  There he found the  deceased  hanging  by  a
lungi to the roof on the first floor of the building.  With the hope of
saving the life, PW7 disentangled the dead body  and  laid  it  on  the
floor only to find that the lady  was  already  dead.   Thereafter,  he
alongwith the help of another person Bhumaiah  (who  is  not  examined)
shifted the dead body to the ground floor of the building.

7.    According to  the  evidence  of  PW1,  some  unknown  person  had
informed by telephone on the fateful day in the morning hours that  the
deceased was ill.  Thereafter, PW1 passed on the  information  to  PW4,
who was residing in the same town (Nizamabad) as the appellant and  the
deceased, and asked him to ascertain the state of affairs.  Thereafter,
PW1 along with other members of the family rushed to Nizamabad only  to
find the dead body of his daughter.

8.    The learned counsel for the appellant argued  that  there  is  no
iota of evidence to establish that the appellant caused  the  death  of
Jyotsna.  He submitted that even if the offence under section  498A  is
proved in the absence of any  clinching  evidence  that  the  appellant
caused the death of Jyotsna  it  would  not  be  safe  to  convict  the
appellant for the offence under section 302 IPC as the  requirement  of
criminal law is that  the  prosecution  must  establish  the  guilt  of
accused beyond all reasonable doubt and in  a  case  of  circumstantial
evidence  the  chain  of  circumstances  is  so  complete   that   they
collectively point only to the guilt of the accused without leaving any
scope for doubt.    The  learned  counsel  made  elaborate  submissions
impeaching the credibility of the  evidence  of  PW14  the  doctor  who
conducted the post mortem examination.
 PW14 opined that the  cause  of
death is “shock due to asphyxia  on  account  of  strangulation”.   
The
learned counsel relied upon various passages from  Modi’s  Textbook  of
Medical Jurisprudence in a bid to establish that having regard  to  the
nature of the external injuries on the body of the deceased, the  death
of Jyotsna is  a  result  of  hanging  but  not  strangulation  thereby
creating doubt about the credibility of the prosecution case.

9.    On the other hand, the learned counsel for the State argued  that
the concurrent finding of fact  resulting  in  the  conviction  of  the
appellant under section 302 IPC may  not  be  interfered  with  in  the
absence of any illegality in the judgment under appeal.

10.   We must at the outset state that one of  the  five  circumstances
relied upon by the prosecution to establish the guilt of the  appellant
i.e. the alleged extra-judicial confession made by the appellant before
PW9  is  disbelieved  by  the  High  Court.    
Therefore,   only   four
circumstances remain, they are: 
(i) the appellant and the deceased were
husband and wife; and 
(ii) they were living in the same  house.   These
facts are not even disputed by the appellant.  
The  third  circumstance
relied upon by the prosecution is that the deceased was harassed by the
appellant for additional dowry.  
The said  circumstance  is  abundantly
established by the evidence of PW1 to PW4.
The fourth circumstance that the death of Jyotsna in the opinion[1]  of
the doctor was caused by strangulation (we do not  propose  to  examine
the correctness of the opinion) even  if  believed  need  not,  in  our
opinion, lead to the conclusion that it is only the accused who must be
held responsible for such strangulation.  The  building  in  which  the
accused and the deceased were living consists of  four  portions  where
others were also living.


Even if we give the  benefit  of  the  above  mentioned  doubt  to  the
appellant, the appellant cannot escape his liability for a charge under
section 304B IPC which creates a legal fiction.  All the ingredients of
section 304B are satisfied in the  instant  case,  that  the  death  of
Jyotsna occurred within seven years of her marriage the death  occurred
otherwise  than  under  normal  circumstances  and  that  Jyotsna   was
subjected to harassment which amounted to cruelty within the meaning of
section 498A IPC of which charge the appellant is also found guilty  by
both the courts below.

11.   In the light of the abovementioned circumstances,  the  appellant
in our opinion must be found guilty for an offence under  section  304B
IPC.  He was infact charged at trial for the said offence  though  both
the courts below failed to record any  finding  in  this  regard.   The
offence under section 304B IPC is punishable with the  sentence  for  a
term which may not be less than seven years but  which  may  extend  to
imprisonment for life.  We, therefore,  alter  the  conviction  of  the
appellant for an offence under section 302  IPC  to  an  offence  under
section 304B  IPC  and  reduce  the  sentence  to  the  period  already
undergone (we are informed that the appellant is in jail for  almost  a
decade).  He may be released forthwith if not  required  in  any  other
case.  The judgment under appeal is modified accordingly.


                                                          ..………………………………….J.
                                                    (RANJANA PRAKASH
DESAI)

                                                         ...………………………………….J.
                                                 (J. CHELAMESWAR )
New Delhi;
January 06, 2014.
-----------------------
[1]    We notice from the evidence of doctor that he is of the opinion  that
asphyxia can occur either because of strangulation or  hanging.  Only  by  a
very close scrutiny of the symptoms the  exact  cause  of  asphyxia  can  be
identified.

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