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Benefit of doubt, Section 498-A, 304-B IPC set aside

Andhra High Court

Onteru Venkata Subba Reddy
State Of A.P. Rep. By Its Public … on 26 February, 2008

Bench: B P Rao, L N Reddy
JUDGMENT L. Narasimha Reddy, J.

1. These two appeals are directed against the judgment, dated 6.2.2006, rendered by the Court of III Additional District Sessions Judge (FTC), Nellore. A-1 to A-5 were charged with the offence of committing murder of one Onteru Vijayalakshmi, the wife of A-1, on the intervening night of 5/6.12.2001. The second charge was under Section 498-A read with Section 304-B IPC, against A-1 to A-3, A-6 and A-7. In addition to that, A-1 to A-5 were accused of committing the offence punishable under Section 201 IPC, for removing the evidence.The trial court acquitted A-2 to A-5 and A-7 of all the charges. It, however, convicted A-1, of the offences punishable under Section 302, 201 and 498-A IPC. Sentence of imprisonment for life, with fine of Rs. 500/- (in default to suffer simple imprisonment for three months); rigorous imprisonment for two years, with fine of Rs. 300/- (in default to suffer simple imprisonment for two months); and rigorous imprisonment for one year, with fine of Rs. 200/- (in default to suffer simple imprisonment for two months), respectively, were imposed for the offences punishable under the said three provisions. The case against A-6 was split up, since NBW was pending against him. While Crl.A. No. 236 of 2006 is filed by A-1, aggrieved by the conviction and sentence imposed against him, Crl.A. No. 239 of 2008 is filed by the State, challenging the acquittal of A-2 to A-5 and A-7.

2. The case presented by the prosecution before the trial court was:

The marriage of Vijayalakshmi, the daughter of PW-1, was performed with A-1 on 31.10.2001, and thereafter, she was sent to her matrimonial home on 22.11.2001. Gold and cash of Rs. 80,000/- was presented at the time of marriage. On 6.12.2001, an intimation was received by PW-1, to the effect that his daughter was missing from the house of A-1, from the intervening night of 5/6.12.2001. He proceeded to Kovur, the native place of the accused, on 7.12.2001. A-1 and his parents, A-2 and A-3 have informed him that the deceased left in the previous night, with a suitcase, containing golden ornaments and cash of Rs. 700/-. When himself and PW-2 searched the house, PW.1 found the suitcase very much in the house of A-1 to A-3. A report, which is marked as Ex.P- 2, was submitted by PW.1, to the Station House Officer, Kovur, at 1700 hours on 7.12.2001, stating that the deceased was missing. He suspected the involvement of the accused in the same. In the morning on the next day i.e. 8.12.2001, PWs-1 and 2 came to know that a dead body was floating in a well, nearby the village and they identified the same, to be that of the deceased. Another complaint, incorporating these facts was submitted, which is marked as Ex.P-3.

3. On receiving Ex.P-2, crime was registered under Section 498-A IPC and missing of a woman, and after Ex.P-3 was received, the Provision of Law was altered. The dead body was retrieved, inquest, and thereafter, post-mortem were conducted. Certain recoveries are said to have been made, from the house of A-1 toA-3, on the basis of the information furnished by A-1, in the confessional statement. Ultimately, the charges, as referred to above, were framed. All the accused pleaded not guilty. The trial court handed out its judgment, in the manner indicated above.

4. Sri C. Padmanabha Reddy, learned Senior Counsel for the accused, out of whom A-1 figured as appellant in Crl.A. No. 236 of 2006, and others as respondents in Cr.A. No. 239 of 2008, submits that the circumstantial evidence that is relied upon by the trial court is not only weak, but is also totally untrustworthy. He submits that it was the A-1, who first gave the information to the parents of the deceased about her missing, and there did not exist even any scope for suspecting his conduct. Learned Senior Counsel submits that hardly within one month from the date of marriage, the incident took place and the actual stay of the deceased, in the house of the accused, was about 10 days. He contends that the evidence of PW-1 is totally untrustworthy. Learned Senior Counsel further submits that the sole basis, either for the prosecution, or PW-1, to suspect the conduct of the accused, was the information passed on by PW-6, and once the trial court disbelieved the evidence of that witness, there was absolutely no basis to convict A-1, or to reexamine the cases vis–vis the other accused.

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5. Learned Public Prosecutor, on the other hand, submits that there are more circumstances than one, that are adequate, to link all the accused to the occurrence. He contends that factors such as, the marriage between A-1 and the deceased, existence, evidence as to the harassment caused by the accused to the deceased, failure on the part of the accused in reporting to the incident to the parents, leading to suspicion, the recoveries affected, at the instance of A-1 himself, are important and that the explanation offered by the accused about the missing or the subsequent death of the deceased, was false in nature. He contends that the conviction of A-1 by the trial court does not warrant interference and that the evidence on record is sufficient to hold A-2 to A-5 and A-7 also guilty of the said offences.

6. Though we are disposing of an appeal filed by an accused, assailing the conviction, and another filed by the State, challenging the acquittal of some other accused, we are of the view that the discussion, which we propose to undertake, would hold good for both of them.

7. The fact that the deceased was married to the appellant is not in dispute. Her death occurred, within five weeks from the date of the marriage. A-2 and A- 3 are the parents of A-1, and A-4 to A-7 are their close family members. There is some controversy, as to the sequence of events that have taken place, subsequent to the marriage on 31.10.2001. If one goes by the contents of the charge sheet and Ex.P-2, it emerges that after the marriage, Vijayalakshmi was sent to the house of A-1 on 22.11.2001 and remained there, till she was found missing, on the intervening night of 5/6.12.2001. However, the evidence of PW-1 gives an impression, that Vijayalakshmi and A-1 lived together for about 10 days, prior to 22.11.2001. This factum is being referred to, in view of the allegation made by PW-1 that his daughter Vijayalakshmi complained to him that she was subjected to harassment by the accused, in the first spell of her living together.

8. Be that as it may, PW-1 was informed by one of his relations from Badvel at about 12 noon on 6.12.2001, that A-1 has sent an intimation to the effect that the deceased was missing from the preceding night. Soon thereafter, PW-1 has passed on this information to PW-2, his co-son-in-law, on telephone. Both of them have proceeded to Kovur, only on the next day. After verifying the matter, PW-1 submitted a complaint, Ex.P-2, at 5 P.M. on 7.12.2001. He stated that the accused have harassed his daughter and that he does not know what happened to her. PW-5 is a worker in the rice mill at Kovur. At 8 A.M. on 8.12.2001, he is said to have gone to answer calls of nature and sensed bad smell, emanating from a well. When he proceeded to the well, he noticed a female dead body, floating in the water. This information was passed on to the Village Administrative Officer, and they, in turn, proceeded to the well. On receiving this information, PW-1 submitted another complaint, marked as Ex.P-3, narrating subsequent events and suspecting the involvement of the accused. The police, who reached the site, found that a cement block was tied to the legs of the deceased, and that the body was in a putrefied condition. Inquest, as well as post-mortem, were conducted.

9. The evidence of PW-1 is extensive, both in chief and cross-examination. It runs to 17 typed pages. It was elicited through him that his daughter was earlier married to one Yerukula Reddy, and shortly thereafter, the marriage was dissolved. Subsequently, her marriage with A-1 was performed on 31.10.2001. It was also suggested to him that the deceased had an affair with a tractor driver working in the village, and on coming to know the same, the first marriage of the deceased was performed in a hurry, contrary to her will, and after it failed, the second marriage was also performed with A-1, against her wishes. Neither PW-1, nor his co-son-in-law, PW-2, have any direct knowledge about the death of the deceased, except that they received information, hours after she was found missing. So is the case with PW-3. PW-4 is a close relation of PW-1, and he too speaks about the manner in which the marriage of deceased with A-1 came to be performed. It has already been pointed out that PW-5 is the person, who first noticed the dead body.

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10. A perusal of the charge sheet filed by the prosecution reveals that it is based upon the information said to have been furnished by PW-6. This witness is a native of Kovur, residing nearby the house of A-1 to A-3. On the intervening night of 5/6.12.2001, he is said to have noticed that his mother woke up to answer nature calls and that she, in turn, noticed two persons running away on the tank bund. He stated that when his mother raised an alarm crying ‘theives theives’, he came out and noticed that two persons were running on the tank bund. At that time, both of them are said to have noticed A-1 to A-5 taking each other, in front of the house of A-1 to A-3. On enquiry, A-1 to A-3 are said to have informed him that pigs were running on the tank bund and there is nothing to worry about it. The mother of PW.6 was not examined. At about 7.30 A.M. on 8.12.2001, the relations of the deceased are said to have informed him that she was missing. He further stated that when PW-1 narrated the event to him, he told him that the story set up by A-1 to A-3 about the missing of the deceased is unbelievable.

11. The scrutiny of the evidence of this witness reveals that there are several contradictions in it. It has already been pointed out that the dead body was noticed, for the first time, by PW-5 at about 8 A.M. on 8.12.2001. In his chief examination, PW-1 stated that after coming to Kovur on 7.12.2001, he made night halt at Salmanpuram, at his maternal aunt’s house, and they came to Kovur on 8.12.2001 at 10 A.M. There, he was informed that a dead body was floating in the water of Grampanchayat well. If that be the case, the question of PWs-1 and 2, or other relations of the deceased, PW-6, informing him, at 7.30 A.M. on 7.12.2001 about the death of the deceased, does not arise. In the cross- examination of this witness, it was elicited that he had three wives, faced several cases, and that one of his sons, who faced charge of theft, was nabbed at the instance of A-1. Further, PW-1 did not state in his evidence that he has ever met PW-6. For these and other similar reasons, the trial court disbelieved the evidence of PW-6. Learned Public Prosecutor is not able to convince us to take any different view, as regards the evidence of PW-6. Therefore, it becomes difficult for us, to interfere with the acquittal of A-3, A-5 and A-7.

12. Coming to the conviction of A-1, it has to be seen whether there exist the required links, to connect him with the occurrence. As many as five factors were taken into account, by the trial court, in convicting the appellant. Out of 5, two factors, viz; his marriage with the deceased and the missing of latter on 5/6.12.2001, are matters of record, and by themselves, do not constitute the basis for convicting him. The third factor, which has some relevance is about the conduct of A-1, soon after the deceased was found missing. Had it been a case, where he just kept quiet, without informing the parents of the deceased about the missing, till her death was noticed, there would certainly have been strength in the case of prosecution. It is not in dispute that the information about the missing of the deceased was passed on by A-1 himself, to a relation of PW-1 at Badvel, in the morning of 6.12.2001 itself, and through a messenger from Badvel, it reached PW-1 at 12 noon on 6.12.2001. Therefore, it cannot be said that there was any lapse on the part of A-1 in conveying the information. The lapse, if at all, was on the part of PW-1, who has chosen to go to Kovur, the native place of A-1, only in the afternoon on the next day.

13. Another circumstance relied upon by the prosecution is the alleged recovery of jewelry, from the house of A-1. It was urged that though A-1 pleaded that the deceased left the house with a suitcase, containing jewelry and cash of Rs. 700/-, the jewelry was recovered from the house, on the strength of a confessional statement. In this regard, two aspects need to be taken note of. The first is that even according to PW-1, soon after reaching the house of A-1 to A-3 on 7.12.2001, they searched in the house and found the suitcase, intact. They did not feel it necessary to verify whether the suitcase contains any jewelry, in the context of statement of A-1 to A-3 that the deceased left the house with the jewelry and cash. Therefore, the very occasion to undertake search, or for that matter, recovery under Section 27 of the Evidence Act, is meaningless, if not superfluous. Secondly, recoveries affected, under Section 27 would become relevant and important, if only the recovered items were used in the commission of offence. The ornaments, even if recovered from the house of A-1 to A-3, they cannot be said to have been used for strangulation, or drowning of the deceased. Therefore, this circumstance pleaded by the prosecution does not provide any valid link.

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14. The last circumstance relied upon by the prosecution is the alleged false explanation by A-1 about the manner in which the deceased is said to have left the house. In this regard, it may be noticed that before any explanation is branded as false, the prosecution must be in possession of a set of facts, which can be treated as standard or undisputed. It is only when the facts pleaded by an accused are compared with such a standardized set of facts, that an opinion case can be formed, as to the falsity, or truth of the same. For instance, if the medical evidence in a given case discloses that the death of a deceased is on account of burn injuries, and the accused there in offers an explanation to the effect that the death was caused on account of fall, or other reasons, there would emerge a clear case of false explanation. That would be the result of the comparison of an undisputed and standardized set of facts, with the explanation offered by the accused. If there does not exist any standardized fact and the comparison is with another doubtful, or un-established set of facts, a conclusion as to false explanation, cannot be arrived at all.

15. In the instant case, the comparison is between one and the same set of facts, but from different angles. A-1 is said to have stated to PW-1 that the deceased left the house, on the intervening night of 5/6.12.2001, with a suitcase, containing jewelry and cash of Rs. 700/-. This version of PW-1, presented in his chief-examination, is treated as true and standardized, and the same is treated as an explanation from A-1. Deriving support from the alleged recovery of golden ornaments, the explanation offered by A-1 is branded as false. The record does not disclose that A-1 or other accused have ever informed to PW-1 that the deceased left the house with the suitcase, ornaments and cash. Though there is no dispute that it is A-1 himself that informed PW-1 about the missing of the deceased, the self-serving statement of PW-1 about the ornaments, cannot constitute the basis of testing the veracity of explanation of A-1, which itself is in doubt.

16. Apart from the factors referred to above, there are several reasons to doubt the conduct of PW-1. Neither in Exs.P-2 and P-3, nor in his chief- examination, he made any reference to the earlier marriage of the deceased. He has taken one full day, to reach Kovur, after receiving information about the missing of his daughter. Another significant fact is that after the post-mortem was conducted, PW.1 did not choose to receive the dead body, and as a result, it came to be handed over to the Municipality. Reference is made to these facts, only to point out that it is not safe to act upon the evidence of PW.1. The trial court has already discarded the evidence of PW-6. Therefore, nothing reliable exists on record, to connect A-1 to the occurrence, and the whole incident is shrouded in mystery. In such a case, the benefit of doubt, must, naturally be extended to the accused, which we propose to do.

17. In the result, Crl.A. No. 236 of 2006 is allowed, and the conviction and sentence against the appellant (A-1), handed out by the trial court, is set aside. He shall be set at liberty, forthwith, if not required in any other case. The fine amount, if any, paid by him shall be refunded. Crl.A. No. 239 of 2008 is dismissed.

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