Mohamad Yacub vs State of A.P. and Another

P.S. Narayana, J.—Heard Mr. Kanaka Raju, Counsel representing the appellant-A1 and Mr. Mohd. Osman Shaheed, Additional Public Prosecutor.

Mr. Kanaka Raju, the learned Counsel representing the appellant-A1 had raised an objection that in view of the fact that the appellant-Al was charged u/s 302, IPC, without a charge u/s 304-B, IPC, convicting the accused u/s 304-B, IPC cannot be sustained, and since offence u/s 304-B, IPC is not a minor offence when compared with the offence u/s 302, IPC, without there being a charge, the conviction itself is not sustainable. The learned Counsel placed strong reliance on Sadala Bhadriah v. State of A.P. 2000 (1) ALT (Cri) 47 (A.P.) and Sohal Lal @ Sohan Singh and Others Vs. State of Punjab,

The learned Additional Public Prosecutor had taken this Court through the factual matrix and also would contend that this appears the view of the Apex Court too. The learned Additional Public Prosecutor also placed reliance on Sadala Bhadriah v. State of A.P. (supra), Sangaraboina Sreenu v. State of Andhra Pradesh 1998 (1) ALT (Cri.) 20 SC, Sangaraboina Sreenu v. State of Andhra Pradesh 2 (1997) CCR 45 (SC) : 1997 (4) S 214 and Afzauddin Ansary v. The State 2 (1997) CCR 228 : 1997 (2) Cri 53,

The Inspector of Police, Anakapalle Circle, filed charge-sheet in Crime No. 305 of 1997 of Anakapalle. Town Police Station against A1 and A2 for the offence u/s 302, IPC.

The case of the prosecution is that A1 and A2 are brothers. One Shammi Munnisa Begam is a resident of Kancharapalem in Visakhapatnam. Her daughter Munneera was married with A1 about six years ago. At the time of marriage, a sum of Rs. 3,000.00 in cash, one wrist watch and six Annas of gold ring were given to the first accused besides some gold articles presented to the said Munneera. For about one year after the marriage, A1 and his wife lived peacefully. They were blessed with one son by name Bahadur and a daughter by name Jasmin who are minors of tender age. A1 used to harass his wife demanding for money. About one year ago, the mother Shammi Munnisa Begam had presented 1/2 tola gold chain to the said Munneera. A1 was also harassing by demanding Munneera to get the said gold chain. About four months back, the said Munneera visited the house of her mother Shammi Munnisa Begam and requested her to give Rs. 5,000/- since A1 was demanding and harassing by beating for the amount. Further the said Munneera visited the house of her mother about fifteen days ago requesting to give her Rs. 3,000/- as A1 was threatening with dire consequences unless she gives that amount to him.

While so, on 22.9.1997, A1 and A2 came to the house. A1 slept along with his family members, whereas A2 slept in the rear side of the room. At about 3.00 a.m. A1 caught hold of the legs and hands of Munneera, whereas A2 sat on her chest and pressed her mouth and nose with a cotton pillow and thereby caused her death. The incident was witnessed by Bahadur, who is the son of A1 and the deceased. The incident was informed in the morning by the said Bahadur to one Konathala Adi Venkataratnam and others. On information given by one Mohammad Jilani of Anakapalle, Shammi Munnisa Begum along with others came to Anakapalle and found Munneera lying dead. On inquiry, the said Bahadur informed them that A1 and A2 killed his mother Munneera and went away. On the early hours of 23.9.1997, one Shaik Rokiyabee had seen A1 and A2 going from the house of the deceased Munneera. On a report given by Shammi Munnisa Begum, the Sub-Inspector of Police, Anakapalle Town Police Station, registered the same as a case in Crime No. 305 of 1997 under Sections 498-A and 306, IPC. Subsequently, it was altered into Section 304-B, IPC. The Medical Officer after conducting autopsy on the dead body of the deceased Munneera, issued post-mortem examination report wherein he opined that the deceased died of asphyxia due to smothering. Basing on that information, the section of law was altered into Section 302, IPC. A1 was arrested on 27.9.1997 who made a disclosure statement in the presence of one Budda Veerunaidu and Rayavarapu Gangaraju. A2 was absconding ever since the offence.

The charge-sheet was taken on file under Sections 302 and 304-B read with Section 34, IPC, the same was numbered as P.R.C. No. 3 of 1998 on the file of the Additional Munsif Magistrate, Anakapalle and the same was committed to the Court of Session, Visakhapatnam and, in turn, the same was made over to the District and Sessions Judge, Visakhapatnam. Ultimately, a charge u/s 302, IPC had been framed as against the appellant-A1. The said charge reads as hereunder :

"That you and your brother Mohammad Ismail, on or about the 23rd day of September, 1997 at about 3 a.m. in your house situated in Konathala Venkatareddy Gari Street, Nidanam Doddi, Anakapalle, did commit murder by intentionally or knowingly causing the death of your wife Mohammad Munneera, by catching hold of her legs and hands while your brother Ismail pressing her mouth and nose with a cotton pillow by sitting on her chest, and thereby committed an offence punishable u/s 302 of the Indian Penal Code and within my congnizance."

The evidence on record, in brief, is as hereunder:

(i) P.W. 1 is mother of the deceased-Munneera. She stated about the marriage of her deceased-daughter with A1, presentation of cash of Rs. 3,000/-, gold ring, wrist watch and other articles at the time of marriage. She also stated about the demand made by A1 for money subsequently and harassment made by A1 to the deceased. She also stated that on 23.9.1997 one person by name Jilani who is examined as P.W. 7 came to Visakhapatnam and informed about the death of her daughter Munneera. Thereupon, P.W. 1, P.W. 5, P.W. 6 and others went to the house of the deceased. On inquiry, one Bahadur who is no other than the son of the deceased stated that his mother was killed by the A1 and A2. Thereupon, P.W. 1 gave Ex. P-1 report to the Police.

(ii) P.W. 2 is Mohammad Bahadur aged 5 years. He is the son of A1 and the deceased Munneera. He stated that his mother and A1 used to quarrel. His senior paternal uncle pressed his mother with a pillow.

(iii) P.W. 3 stated that the deceased and A1 are residing by the side of her house in Anakapalle. Both the deceased and A1 were having disputes and, therefore, not living amicably. About one year ago at about 4 a.m., she found A1 and A2 going hurriedly from the house of Al. At that time she was going to answer calls of nature. Later when she returned home, P.W. 4 who is the landlady of the house, wherein the deceased and A1 were residing, informed that there was no response from the said Munneera. Thereafter, they went to the deceased Munneera, but there was no response from her. P.W. 2 was stating in Urdu. As she does not know Urdu, she called P.W. 8 who is Urdu knowing woman. P.W. 2 stated to P.W. 8 that A1 caught hold of the legs of the deceased and A2 pressed with a pillow on the face of the deceased.

(iv) P.W. 4 stated that herself, P.W 3 and P.W. 8 when asked P.W. 2 as to what had happened to his mother, P.W. 2 stated that A1 and A2 killed his mother. A1 caught hold of her legs and A2 pressed the face of the deceased with a pillow.

(v) P.W. 5 is mother of P.W. 1. The deceased Munneera is her granddaughter. On being informed by P.W. 7, herself, P.W. 1 and the daughter-in-law of P.W. 5 went to Anakapalle. When they asked, P.W. 2 about the incident. P.W. 2 told them that A1 caught hold of the legs of the deceased and the brother of A1 pressed the deceased by laying a pillow. According to this witness, there were disputes between the deceased and A1 and A1 used to demand for dowry.

(vi) P.W. 6 is daughter-in-law of P.W. 5. The husband of P.W. 6 and P.W. 1 are related as brother and sister. She also stated about the presentation of dowry and other articles at the time of marriage to Al. She also stated about the information of the death of Munneera and proceeding from Visakhapatnam to Anakapalle. When questioned, P.W. 2 stated to them, A1 caught hold of the legs of the deceased and the brother of A1 pressed on the face with a pillow.

(vii) P.W. 7 is a resident of Anakapalle. He found A1 and A2 going on the road leading to Pendurthi at about 5 a.m. On 23.9.1997 at 8.00 a.m., he came to know Munneera died. Then, he went to Visakhapatnam and informed the same to P.W. land others. P.W. 2 stated to them that A1 caught hold of the legs of his mother and the other accused pressed his mother with a pillow.

(viii) P.W. 8 is a resident of Anakapalle. The deceased Munneera used to stay in the street next to her street On being sent word by P.W. 3, she went to P.W. 3. P.W. 8 knew Urdu language. She asked P.W. 2 in Urdu, the cause of death of his mother. P.W. 2 stated that there was an altercation between his mother and A1 and his senior paternal uncle killed his mother.

(ix) P.W. 9 stated that he knew about the marriage of the deceased with A1. According to him, there were disputes between A1 and the deceased as the deceased used to complain. After coming to know, the said Munneera died, he visited their house. P.W. 2 stated that his mother was killed by his father and his uncle.

(x) P.W. 10 stated that he drafted Ex. P-1 report to the dictation of P.W. 1.

(xi) P.W. 11 stated that she acted as Inquest Panchayatdar over the dead body of Munneera. She opined that the deceased''s death is homicidal.

(xii) P.W. 12 is one of the mediators in whose presence police seized two pillows and one cotton blanket, which are marked as M.Os. 1 to 3 respectively, fn his presence, an observation report was prepared by the police, wherein he also signed.

(xiii) P.W. 1.3 is a photographer at Anakapalle. He has taken three photos of the dead body. Exs. P-4 to P-6 are the photos with negatives.

(xiv) P.W. 14 is Sub-Inspector of Police, who registered Ex. P-1 report given by P.W. 1 as a case in the above crime under Sections 498-A and 306 of IPC. He submitted the original First Information Report to the concerned. He gave requisition to Mandal Executive Magistrate, Anakapalle to conduct inquest over the dead body. Subsequent investigation was made by the Inspector of Police.

(xv) P.W. 15 is Civil Assistant Surgeon of Community Health Centre, Anakapalle. On 23.9.1997, after receiving the requisition from Mandal Revenue Officer, Anakapalle, post-mortem examination was conducted on the dead body of Munneera on 24.9.1997 along with Dr. S. Ratnamma, who is another Civil Assistant Surgeon. He is of the opinion that the deceased died of asphyxia due to smothering, 30 to 40 hours prior to post-mortem examination. Ex. P-8 is post-mortem certificate According to him, death is possible, if a pillow is pressed on the face by which action of respiration will be restrained.

(xvi) P.W. 16 is Mandal Revenue Officer, Anakapalle. He received the requisition marked as Ex. P9 from Station. House Officer, Anakapalle (Town) Police Station to conduct the inquest over the dead body of the deceased Munneera. Thereupon, he summoned the Inquest-Panchayatdars and recorded the statements of the blood relations of the deceased Munneera. The Panchayatdars opined that the death is unnatural and homicidal.

(xvii) P.W. 17 is Inspector of Police, Anakapalle. He stated that on receiving express First Information Report" in the above crime, he visited the scene of offence, found the deceased Munneera, secured the presence of P.Ws. 1, 3 to 5 and others, prepared an observation report and seized M.Os. 1 to 3. He also prepared rough sketch, got photographed the scene of offence and subsequently altered the section of law to 304-B, IPC from Sections 498-A and 306, IPC. According to him, the deceased died within seven years after the marriage. On his requisition, post-mortem examination was conducted over the dead body of the deceased after inquest. Further investigation was taken up by P.W. 18. Later he filed charge-sheet.

(xviii) P.W. 18 stated that on receiving express memo in the above crime along with First Information Report, he visited the scene of offence and supervised the investigation made by P.W. 17. On 27.9.1.997, he examined P.W. 8 and recorded her statement. He arrested the accused at Sabbavaram junction in the presence of mediator and brought hint to Anakapalle.

On appreciation of the evidence of P.Ws. 1 to 18. Exs. P1 to P. 11, Ex. D1 and M.Os. 1 to 3, the learned Judge found the accused not guilty for the offence u/s 302, IPC and recorded an acquittal, but convicted the appellant-accused for the offence u/s 304-B, IPC. It is needless to say that the learned Judge framed the charge only u/s 302, IPC and not u/s 304-B, IPC. In Sadala Bhadriah case (supra) at paragraphs 8 and 9, it was held that:

"The learned Counsel appearing for the appellant submits that, u/s 304-B, IPC there is a presumption of committing an offence and this presumption imposes a responsibility on the accused to discharge the onus that he was not responsible for the suicide of the wife, A duty is cast on the accused u/s 113-B of Evidence Act. But, since he was not in know of the fact that he is being charged u/s 304-B, IPC, therefore, he had at no point of time got any chance to show that he was innocent. Even the questions put to the accused-appellant while he made statement u/s 313, Cr.P.C. were with regard to an offence u/s 302, IPC. The learned Public Prosecutor however states that, in terms of Section 222, Cr.P.C. the Court can convict a person of an offence which is minor in comparison to the one for which he has been tried. This argument does not hold good in view of the fact that Section 304-B, IPC is not a minor offence than an offence u/s 302, IPC, Section 304B, IPC carries life imprisonment which is the punishment carried u/s 302, IPC and the punishment of less than seven years is minimum. Similar question was considered by the Supreme Court in Sangaraboina Sreenu Vs. State of Andhra Pradesh, , in which a person who had been charged u/s 302, IPC was eventually convicted u/s 306, IPC. The Supreme Court found it to be illegal. This is a small judgment of Supreme Court which is reproduced below:

The appellant was put up for trial before the Sessions Judge, Warangal for uxoricide. The accusation against him was that on May 15, 1987 at or about 9.30 p.m. he poured kerosene oil on the body of his wife and set her on fire. The Trial Court convicted the appellant u/s 302, IPC, but in the appeal preferred by him the High Court set aside his above conviction and convicted him u/s 306, IPC. The above judgment of the High Court is under challenge in this appeal.

This appeal must succeed for the simple reason that having acquitted the appellant of the charge u/s 302, IPC which was the only charge framed against him, the High Court could not have convicted him of the offence u/s 306, IPC. It is true that Section 222, Cr.P.C. entitles a Court to convict a person of an offence which is minor in comparison to the one for which he is tried but Section 306, IPC cannot be said to be a minor offence in relation to an offence u/s 302, IPC within the meaning of Section 222, Cr.P.C. for the two offences are of distinct and different categories. While the basic constituent of an offence u/s 302, IPC is homicidal death those of Section 306, IPC are suicidal death and abatement thereof.

For the foregoing reason the appeal is allowed and the conviction of the appellant u/s 306, IPC is set aside. The appellant who is an bail, is discharged from his bail bonds.''

The sentence u/s 306, IPC is only 10 years whereas the sentence u/s 304-B, IPC is life and the Courts are not empowered to sentence a person convicted under this offence for a period less than seven years. Therefore, in my view an offence u/s 304, IPC is no less a serious offence than an offence u/s 302, IPC as far as the punishment is concerned."

Reliance also was placed on Sohan Lal @ Sohan Singh case (supra), wherein it was held that--

"Abetment is a substantive offence and failure to frame charge u/s 109, IPC would cause prejudice to the accused and in a bride burning case accused - husband was charged only u/s 304-B, IPC. Hence his conviction under Sections 300 and 109, IPC liable to be set aside."

In view of the legal position, since the appellant-A1 was charged only u/s 302, IPC, but convicted and sentenced u/s 304-B, IPC, the said conviction and imposition of sentence cannot be sustained, and accordingly, the same are hereby set aside.

Accordingly, the criminal appeal is hereby allowed. The bail bonds of the appellant-accused shall stand cancelled.