Mudawath Chander vs State Of Ap.,

Heard Smt.G.Jaya Reddy, learned counsel for appellant - Accused No.1 and Sri Muthyala Muralidhar, learned Additional Public Prosecutor appearing on behalf of the respondent – State.

This appeal is filed to set aside the judgment dated 18.12.2013 passed in S.C.No.325 of 2010 by the V Additional Metropolitan Sessions Judge (Mahila Court) at Hyderabad (for short, ‘the trial Court’).

Vide the aforesaid judgment, the trial Court convicted the appellant for the offences punishable under Sections - 302 and 498 –A of IPC and Section 4 of the Dowry Prohibition Act, and sentenced to suffer imprisonment for life.

The case of the prosecution is as under:

This is a case of dowry harassment and committing of murder of the deceased/wife by the appellant/husband. The marriage of A.1 with the deceased was performed 5 years prior to the date of the incident i.e. 10.10.2009. They are blessed with two female children. According to the prosecution, A.1 harassed the deceased demanding additional dowry and also suspecting fidelity. He has also harassed the deceased on the ground that she gave birth to two female children. Panchayat was also held, wherein it was decided that the parents of the deceased shall pay an amount of Rs.50,000/- to A.1 towards additional dowry. Accordingly, P.W.2-brother of the deceased had paid an amount of Rs.30,000/- out of the agreed amount of Rs.50,000/- and balance amount shall be paid shortly. Even then, A.1 started harassing the deceased on the ground that they have not paid balance amount of Rs.20,000/- and killed her by throttling and escaped with the baby aged 4 months.

To prove the said facts, prosecution has examined P.W.1-cousin of the deceased, P.W.2-brother of the deceased, P.W.3-owner of the house and circumstantial witness, P.W.5-neighbour of the appellant/A.1 and circumstantial witness. P.W.4 is the witness before whom A.1 made extra judicial confession. P.W.6-one of the elders who participated in the panchayat. P.W.7-Panch witness for the scene of offence and rough sketch etc. P.W.8-Panch witness for inquest and P.W.10-the panch witness for confessional statement– cum – seizure panchanama of the accused. P.W.9 is the Doctor who conducted autopsy over the dead body of the deceased. P.W.11 is the Mandal Revenue Officer, who conducted inquest, P.W.13 is the Investigating Officer who conducted investigation in the said case. On consideration of the entire evidence both oral and documentary, the trial Court convicted the appellant/A.1 for the aforesaid offences and imposed sentence of life imprisonment whereas acquitted the A.2 to A.5. Challenging the said judgment, the appellant/A.1 preferred the present appeal.

Smt. G.Jaya Reddy, learned counsel for the appellant sought to set aside the impugned judgment on the following grounds:-

i. There is no eye witness to the incident.

ii. Entire case rests on the circumstantial evidence.

iii. The circumstances relied upon by the prosecution are not forming complete chain.

iv. There is break of chain with regard to the circumstances relied upon by the prosecution.

v. There are serious contradictions in the depositions of the prosecution witnesses, more particularly, among PWs.1 to 4.

vi. The prosecution failed to prove motive.

vii. Even P.W.9-Doctor who conducted autopsy over the dead body of the deceased gave his opinion (Ex.P.9) stating the cause of death is asphyxia ligature strangulation.

viii. The prosecution failed to examine any of the neighbours of the accused and the deceased. They have not even examined co-tenant of the A.1. Prosecution also failed to prove the alleged harassment of the deceased demanding additional dowry beyond reasonable doubt. None of the witnesses spoke about demand of dowry and harassment meted out by A.1 on the deceased. Even then, without considering the said aspects, the trial Court convicted the appellant/A.1.

Whereas, Sri Muthyala Muralidhar, learned Additional Public Prosecutor would contend that both the P.Ws.1 and 4 specifically deposed about the dowry harassment of the deceased by the appellant/ A.1. Even as per the depositions of P.W.3-owner of the house, P.W.5-neighbour of the deceased, on the date of incident also i.e. 10.10.2009 also there was a quarrel between the appellant and the deceased. A.1 being the husband of the deceased failed to intimate anybody including parents, brother of the deceased or neighbours or to the Police with regard to the alleged suicide committed by the deceased. P.W.2 specifically deposed about holding panchayat, wherein it was decided that the deceased parents have to pay an amount of Rs.50,000/- and as per the said agreement P.W.2- brother of the deceased has paid an amount of Rs.30,000/- as first installment and he was also agreed to pay balance amount shortly. The prosecution also proved the motive. The appellant started demanding additional dowry and started suspecting fidelity of the deceased. He also harassed the deceased on the ground that she gave birth to two female children. Though there is no direct evidence, the trial Court recorded conviction relying on circumstantial evidence. The circumstances formed into a complete chain. The impugned judgment is a reasoned one and it does not require interference by this Court in the present appeal.

As discussed supra, to prove guilt of the accused, prosecution has examined P.W.1, the President of Uppuguda, who is cousin of the deceased. He specifically deposed that on 10.10.2009 at around 3.00 or 3.15 P.M., P.W.2 informed him through telephone that the deceased was killed by A.1 and requested P.W.1 to visit A.1’s house and to make an enquiry. Immediately, he went to the house of A.1 and found that the door was bolted from outside. He opened the latch and found the deceased on ground with her tongue protruding outside and articles in the room were scattered. He observed the ligature mark on the neck of the deceased. A.1 was absent when he visited the house of the A.1. He enquired with P.W.3-owner of the A.1’s house who in turn told him that there was some quarrel in the morning between the deceased and A.1 and he observed A.1 going out of the house with baby in the hands and sometime thereafter, he came back to the house with milk packet and again he had seen A.1 going with the child. Thereafter, P.W.1 lodged a complaint (Ex.P.1) with Police.

Nothing contra was elicited during the cross-examination of the P.W.1. However, referring to the cross-examination of P.W.1, Smt. G.Jaya Reddy, learned counsel for the appellant would submit that the P.W.1 during cross-examination categorically admitted that in Ex.P.1 complaint, he did not mention as to when he went to the house of A.1, he found the door was bolted from outside, he opened the same, found the deceased on the ground and the articles in the room were scattered.

It is relevant to note that the complaint is not an encyclopedia, it is only a First Information Report. However, in his deposition, P.W.1 deposed the said aspects.

P.W.2, brother of the deceased, deposed about the harassment made by A.1 demanding additional dowry. He has also deposed about the panchayat held in his native village Mailaram. The elders in the panchayat decided that the parents of the deceased shall pay an amount of Rs.50,000/- towards additional dowry and he has paid an amount of Rs.30,000/- out of agreed amount of Rs.50,000/-. Thereafter, both the A.1 and deceased shifted to Hyderabad. He received phone call from Village when he was at his workplace informing him that A.1 killed the deceased. Thereafter, he informed P.W.1, his cousin over phone requesting him to go to the A.1’s house and make enquiry. He also went to the house of A.1 and found the deceased was laid on rug in the room. He observed the tongue of the deceased was protruding out of the mouth and also observed throttling marks. A.1 was absent in the house. P.W.3, owner of the house, informed him that the appellant/A.1 went away with baby. He was informed that some quarrel took place between A.1 and deceased in the morning of the same day of the incident.

During cross-examination, he admitted that he arrived at the scene of offence at about 4.00 P.M.

P.W.3-owner of the house deposed that A.1 was his tenant for two months. The deceased/wife of the A.1 joined with him 15 days prior to the incident. A.1 was tenant of the single room with a partition for kitchen. They were having two children. On the date of incident, he went to the room of the A.1 in the morning for collecting rents. There was a verbal quarrel between the wife and the husband. Observing the said quarrel, he did not ask for rent and left from there. In the evening hours, owner of the neighbouring house telephoned him and informed about the arrival of the police at his house.

Referring to cross-examination of P.W.3, Smt. G.Jaya Reddy, learned counsel for the appellant would contend that during cross-examination, P.W.3 categorically admitted that one of the tenants by name Sandhya was working in the cloth shop, used to reside along with her mother and children. Her duty hours are from 10.30 A.M. to 6.00 P.M. Therefore, the evidence of P.W.5 that she heard quarrel between the A.1 and the deceased etc., are unbelievable and she is a planted witness.

P.W.5 Co-tenant of A.1 stated that on 10.10.2009 she heard some quarrel between the A.1 and the deceased from the morning onwards. In the evening at about 6 to 7 P.M., some persons came to the portion of A.1 and found the deceased died. It is relevant to note that the incident was occurred on 10.10.2009 and P.W.1 gave her evidence in Court on 05.02.2013 i.e. after 2 ½ years. Therefore, minor contradictions with regard to timing in a matter like this can be ignored. In the light of the said specific evidence of P.W.5, the contention of the learned counsel for the appellant that P.W.5 is a planted witness cannot be believed.

P.W.4-wife of cousin of the deceased deposed about A.1 demanding additional dowry, conducting a panchayat, payment of additional dowry and that sending the deceased along with the A.1 to Hyderabad. She visited the house of the deceased who in turn informed her that A.1 did not change his behavior and continue to harass her demanding additional dowry and also suspecting her character. She accompanied P.W.2 to the house of the deceased on the date of incident and found the deceased died by that time. A.1 was not there in the house. On the next day, A.1 came to her house along with the children and dropped the minor child there and confessed that he committed murder of the deceased.

It is relevant to note that during cross-examination, P.W.4 admitted that on the next day of the incident, A.1 came to her house along with minor child, handed over the child, intimated to her that he killed the deceased and leaving the child there, he went away. Nothing contra was elicited from her cross-examination.

Smt. G.Jaya Reddy, learned counsel for the appellant would submit that the P.W.5 during cross-examination categorically admitted that she has not seen any physical abuse between A.1 and the deceased in their portion, she did not know the internal affairs of the deceased and A.1 since they joined recently. But she has admitted that she heard sound of bolting the door by A.1. Therefore, according to learned counsel for the appellant, the evidence of P.W.5 cannot be believed and she is a planted witness. But during cross-examination, nothing was elicited from her evidence. In fact, she has specifically deposed about the aforesaid facts in her chief examination itself. Therefore, the contention of the learned counsel for the appellant cannot be accepted.

P.W.6 is the elder who participated in the panchayat conducted with regard to the disputes between the families of the deceased and A.1, wherein P.W.2 and parents of P.W.2 agreed to pay an amount of Rs.50,000/- and that P.W.2 has already paid an amount of Rs.30,000/-. Nothing contra was elicited from him during the cross-examination.

P.W.7 is the panch witness for recovery of M.O.1 plastic mat, M.O.2-towel, M.O.3-black bag, M.O.4-steel Chembu, M.O.5-white colour shawl (Lungi), M.O.6-Saree, M.O.7-Plastic Bucket and M.O.8-Blanket. He also deposed about the Police obtaining his signature on the identity slips affixed to M.Os. 1 to 8. Panchanama (Ex.P.2) for the scene of offence was conducted and he was signed on it. Ex.P.3-rough sketch which contains his signature.

P.W.8 is the panch witness for inquest. He deposed about conducting of inquest and recording of Ex.P.4 inquest panchanama which contains his signature.

P.W.9 is the Doctor who conducted autopsy over the dead body of the deceased and according to him, he found the following injuries:-

“1) A Ligature mark of 17cm length present over middle part of back and right side of neck, transversely placed. The mark started 8cm below the right mid mandibular point passed backwards on to the nape of week 7cm below right ear and terminated 8 cm below and behind the left angle of the Mandible. Ligature mark reddish brow with varying width of 2-3 cm present, interrupted, no evidence of pattern. Abraded contusion (2x1cm) present over the left side of the neck 6cm below the left ear lobe. All abrasions are red in colour. Diffuse contusion of the strap muscles on both sides of neck below the ligature mark. Hyoid intact. Fracture isthonus of Thyroid present

2) An Abrasion ½ x ½ cm tip of middle finger.

3) An Abrasion 3 x ½ cm on outer aspect of middle of right arm”

He has issued Ex.P.5-post-mortem report and on receipt of FSL report dated 31.10.2009, he had issued Ex.P.6 - opinion. According to him, the cause of death of the deceased is ‘Asphyxia ligature strangulation’. However, during cross-examination, he has admitted that in case of hanging also the ligature marks can be present and seen. Immediately after conducting the post mortem examination, he has not given any opinion till receiving FSL report. Referring to the same, learned counsel for the appellant would submit that the deceased committed suicide, but the said contention cannot be accepted in view of the specific evidence of P.W.9-Doctor and also the nature of the injuries. In fact, P.W.1 also observed about the ligature marks.

P.W.10 is the panch witness for confession-cum-seizure panchanama. M.O.9 is stove, M.O.10 is milk packet and M.O.11 is vessel. He has signed on Ex.P.8. Nothing contra is elicited from him.

P.W.11 is Deputy Tahsildar who deposed about conducting of inquest and Ex.P.4 is the inquest report. P.W.12 is photographer. P.W.13 is Investigating Officer.

Referring to cross-examination of P.W.13, learned counsel for the appellant would contend that P.W.13 categorically admitted that he did not obtain any document to show the said house belongs to the P.W.3, he has not examined neighbours of P.W.3. He has not examined other family members of P.W.5. Therefore, his evidence cannot be believed as P.W.3 did not conduct investigation properly.

As discussed supra, the prosecution has examined P.W.3-owner of the house and P.W.5-neighbor and co-tenant. Therefore, the contention of the learned counsel for the appellant that prosecution failed to examine any other independent witness including family members of P.W.5 cannot be accepted, more particularly when there is specific evidence of P.W.3 and P.W.5 corroborating with the prosecution case.

In Ex.P.8 confession – cum – seizure panchanama, the appellant herein confessed that he felt he had committed grave offence and picked up the baby from swing. She was crying. It is her feeding time. He picked up the baby from swing as she was crying since it was her feeding time. But mother is dead and no milk is available from her breast. He took the baby and came out at about 4.00 P.M. and bolted the door from outside. The same was seen by two neighbouring tenants and also the house owner. He brought a milk sachet. The said version is in corroboration with that of P.Ws.1 to 5.

It is also relevant to note that learned III Additional Metropolitan Magistrate, Hyderabad, recorded the statement of P.W.4 under Section 164 of Cr.P.C. wherein also she stated the aforesaid stated facts.

The aforesaid stated facts would reveal that there is no direct evidence, or eye witness. The entire facts rest on circumstantial evidence. It is settled law that conviction can be recorded basing on the circumstantial evidence, if the circumstances relied upon by the prosecution forms complete chain and the said principle is also held by the Apex Court in Sharad Birdhichand Sarda Vs. State of Maharashtra (1984) 4 SCC 116 and the golden principles or the panchasheel of proving of a case based on circumstantial evidence has been laid down which are as follows:-

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature and tendency,

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so compete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

The said principle was followed by various High Courts and reiterated by the Apex Court in catena of decisions.

In the light of the aforesaid principle, it is relevant to note that the circumstances/events relied upon by the prosecution forms complete chain. As deposed by P.Ws.1, 2, 4 and 6, the marriage of the deceased with A.1 was performed about 5 years prior to the incident i.e. 10.10.2009. A.1 demanded additional dowry. Panchayat was held wherein P.W.2 and his parents have agreed to pay an amount of Rs.50,000/- to A.1 towards additional dowry out of which an amount of Rs.30,000/- was paid. He has to pay Rs.20,000/-. A.1 and the deceased blessed with two female children. Thus, according to the P.W.1, A.1 harassed the deceased, demanded additional dowry and suspected her character on the ground that she gave birth to two female children. Thus, the prosecution proved the said aspects beyond reasonable doubt by examining P.Ws.1 to 4 and 6. Thus, prosecution also proved the allegations of motive and dowry harassment.

The prosecution has examined P.W.3-owner of the house. P.W.5 co-tenant of the house who specifically deposed that there was a quarrel between the A.1 and deceased on the morning of the day of incident. P.W.1 also found that the house was bolted from outside. He opened the latch and found the deceased on the ground with her tongue protruding outside. It is a clear case of homicide but not suicide. Nothing contra was elicited from them during their cross-examination. Thus, the prosecution has proved the quarrel between A.1 and the deceased on the day of incident beyond reasonable doubt.

P.W.9 who conducted autopsy over the dead body of the deceased also gave his opinion with regard to injuries on the body of the deceased and cause of death. Therefore, the circumstances relied upon by the prosecution formed a complete chain. There is no break of chain as alleged by the appellant/accused.

During trial, the defence taken by the appellant is that the deceased committed suicide. A.1 being the husband did not report the said fact neither to the neighbours, relatives of the deceased, his relatives, parents nor to police. In fact, he absconded along with the younger daughter aged 4 months who is on breast feeding. He went to the house of P.W.4 along with the baby, dropped the baby there and confessed before her that he committed murder of his wife and went away. Though the extra judicial confession is weak piece of evidence, it can be relied upon as one of the circumstances. Nothing contra was elicited from her during the cross-examination to disbelieve the said extra judicial confession made by A.1. Therefore, it can be used as a circumstance. On consideration of the said aspects only, the trial Court convicted the appellant herein.

Referring to the circumstances relied upon by the prosecution, the trial Court gave specific finding with regard to the motive, harassment and the offence committed by A.1. The impugned judgment is reasoned one and well considered. It does not require any interference by this Court in the present appeal. Therefore, the present appeal is liable to be dismissed.

In the result, the Criminal Appeal is dismissed. The Conviction and sentence imposed by the trial Court vide Judgment dated 18.12.2013 against the appellant/A.1 is hereby confirmed. The appellant/accused was released on bail on 04.01.2022. Therefore, the appellant/accused is directed to surrender before the trial Court within one month from today, for serving the remaining sentence. In case, the appellant fails to surrender, the trial Court shall take steps to secure the presence of accused in accordance with law for serving the remaining sentence.

As a sequel, the miscellaneous applications, if any, pending in the appeal shall stand closed.