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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 alongwith 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.

———————–
8

 

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