P. Pramod @ Shankar vs State of A.P.

Bilal Nazki, J.—The appellant has been convicted u/s 302 I.P.C and sentenced to life imprisonment. A fine of Rs.1000/- has also been imposed, in default of payment of fine he has to suffer simple imprisonment for six months. The allegation on the basis of which charge has been framed against the appellant-accused was that, on 4th March,1997 at about 10.00 hours at Danavaigudem village he caused the death of Santhoshimatha by throwing her into N.S.P canal water and thereby committed an offence punishable u/s 302 IPC. He pleaded not guilty and claimed to be tried. 10 witnesses were examined and 8 documents were exhibited.

The case of the prosecution was based on a report given by Annabathula Vijaya (PW1) on 4-3-97 at 1900 hours. In her complaint she stated that, in the month of March, 1992 she had married one Iqbal who was working in FCI godowns, Khammam. He was transferred to Srikakulam and she accompanied him. At Srikakulam her husband had developed illicit relations with another woman and neglected her and therefore she returned to her parents'' house and at that time she was pregnant. Subsequently she gave birth to a child who was named Santoshimatha. After her birth she herself developed illicit relations with the accused and the same was known to her parents who were against her relations with the accused. On the Vinayakachavithi day the accused went to her parents and requested them to give him the complainant Annabathula Vijaya in marriage. Her mother refused and beat the accused. Thereafter on one day the accused took her to his house where he expressed that the child became an obstacle in their marriage. On 4-3-97 at about 0900 hours while she was at her house the accused came and asked her, with evil motive to kill the deceased, to come to Pandurangapuram along with her daughter Santhoshimatha. He engaged an auto and after boarding the auto he told her that they would go to Danvavaigudem to have discussions. After passing Danavaigudem park, near Railway bridge under N.S.P. canal they got down and sent back the auto. After that the accused asked her to follow him to N.S.P canal bund to have a talk and after they reached the canal bund the accused suddenly threw her daughter into the flowing water saying that the deceased had become an obstacle to their marriage. When she tried to resist, the accused kicked her on her stomach and threatened her with dire consequences. She got down from the canal bund and came to Khammam on a tractor and informed the incident to her mother. Then she and her mother went to her father. All of them went to N.S.P canal where the child was thrown. They went along the canal searching for the child and when they reached UPH colony they came to know that a child was brought out while floating in the water and she was taken to Headquarters hospital. Then they went to the hospital where they found the child dead.

P.W.1 is the complainant. She stated whatever she had stated in her report to the police. She stated that, she got acquaintance with the accused about 2 months prior to the death of her daughter. One day the accused had come to their house and asked her mother to permit him to marry the witness. Her mother was against such marriage. She asked the accused not to come to their house. The accused threatened to kill the witness and her daughter. After three days he again came and requested the witness to come to his house as his mother was sick and bedridden. The accused was living at Pandurangapuram of Kammam town along with his mother. On his request, at 9.00am she accompanied him to his house along with her child. He took an auto and stopped the auto near the bridge of N.S.P canal. She asked him as to why he had brought her to canal instead of taking her to his house. He said that he wanted to marry her. Then he forcibly took her child from her and threw the child into the canal where there was flowing water. She was not allowed to go and rescue her child. He kicked her. She was afraid that he would kill her also. Therefore, she ran away from his clutches. She went to the Rural police station, Khammam and lodged a complaint. Ex.P1 was the complaint. In the cross-examination she stated, as per muslim customs and rites Nikha was performed between him and her husband Iqbal. She had not changed her name after she married Iqbal. The marriage had been performed at the house of sister of Iqbal at Hyderabad. Her marriage with Iqbal was first marriage. She had again married one Mahesh and she was presently his wife. Mahesh was a Taxi Driver. Iqbal was visiting her parental house now and then prior to marrying her. Iqbal was residing in a house on rent which was nearer to the house of her parents. Her parents had given their consent for marrying Iqbal. She had stayed for 5 months with Iqbal at Srikakulam when Iqbal was transferred to Srikakulam. The accused was also their neighbour. He was a scavenger by profession. Their acquaintance started when the accused started coming to their house. Along with her mother she used to go to the house of the accused to work as a servant. She was paid Rs.60/- for cleaning the house and keeping it in order. She stated that there was no illicit intimacy between her and the accused.

P.W.2 is the mother of P.W.1. She stated that she was selling eatables to children studying in convent school. She was in the house on the date of death of her grand daughter. The accused was sitting under a tree near her house and after some time he left along with his daughter and grand daughter. That was Tuesday and the time was 10.30am. By about 1.00pm her daughter alone came to the house and when she enquired from her about her daughter she told that the accused had killed her. After her husband came for meals she, her daughter and her husband went to the police station and lodged the report. The accused had proposed to marry her daughter and she had told him that it is not possible as he belong to a different caste. On Vinayaka chavithi day he had come in a drunken condition to her house and stated that if he was not allowed to marry P.W.1 he would kill them. At about 1.30pm she saw the dead body of her grand daughter in Government hospital.

P.W.3 is a chance witness. He stated that three years before he saw a girl being swept in the flowing water. On that day he was coming from Pandurangapuram to Khammam town. It was about 1.00pm. He stated that there was a bridge over the N.S.P canal branch before reaching Khammam. Water was flowing in the canal. He saw several people had gathered on the bridge. Nobody could venture to enter the stream and save the girl. He knew swimming therefore he jumped into the water and brought back the child from the stream. Another passerby who was going on a bicycle stopped and he tried to give first aid by pressing on the stomach of the child for vomiting the water. That person was Kapilavoya Ravinder who was an LIC agent. The witness noticed that the girl was still alive. She vomited water. After that, Ravinder took the girl to Headquarters hospital, Khammam on his motor cycle. Another muslim gentleman also accompanied him. Fifteen days after that he was called to police station and he was examined. He could identify the girl who was saved from canal. He identified the photographs of the girl Ex.P2 to P4.

P.W.4 is a witness to the panchanama with regard to scene of offence and P.W.5 is a witness to the inquest. P.W.6 is photographer who took the photographs of the deceased. P.W.7 is a witness who along with Ravinder took the deceased to the hospital. He stated that on the day of occurrence he and Ravinder were going to Yellandu on a motor bike. That motor bike was owned by Ravinder. People had gathered at NSP canal. They stopped their motor cycle to see what had happened. One Venkateswarlu saved the girl from the water in the canal. Ravinder gave first aid to the girl by pressing her stomach. Water came out from the mouth of the girl. They took the girl on the motor cycle to the Government hospital, Khammam. The doctors declared her dead. They left the girl at the hospital. Next day morning he was taken to police station where his statement was recorded.

P.W.8 is the police constable who recorded the statement of P.W.1. P.W.9 is the C.I of Police, Khammam Rural police station who investigated the matter. P.W.10 is the Assistant Surgeon who conducted the postmortem. The cause of death according to the doctor was asphyxia due to drowning.

The only eye witness to the occurrence is P.W.1 whose evidence has been narrated herein above but certain aspects of the statement are to be taken into consideration. The learned counsel for the appellant submits that, according to this witness on the day of occurrence she was taken from her house at 9.00am and they reached the canal and then the accused threw the child into the water. So, it must have happened somewhere between 10.00 and 11.00am although the witness had not stated any time in her statement. She did not say in her statement that she along with her father and mother searched for the baby, but in her report to the police i.e., Ex.P1 she had stated that after going back to her house she along with her mother and father searched for the baby in the water and on not finding her they had gone to the police station. In Ex.P1 she had categorically stated that, after she came back to her house she, her father and mother had gone to the canal bund and searched for the deceased. In this report also she had stated that the child was thrown into the water at 10.00am in the morning but the report was lodged at 7.00pm in the evening. The learned counsel submits that, it is unbelievable that if her child was thrown into running water of a canal at 10.00am in the morning P.W.1 could have waited upto 7.00pm to file a report. Therefore, a doubt is created about the genuineness of the report and also about the credibility of the witness. The learned counsel further states that, according to P.W.2 her daughter came back to her house at 1.00pm, that also is not believable and according to that witness P.W.1 along with accused and the child had left the house at 10.30am whereas P.W.1 stated that they had left the house at 9.00am. In any case, the learned counsel submits that, even if they had left at 10.30am even then she should have come back much earlier than 1.00pm. Neither the father nor the mother stated that they had gone to canal bund to search for the child. The second aspect to which attention of this Court has been drawn by the learned counsel for the appellant is that, according to the evidence of P.W.1 the deceased was thrown by the accused into the water at 10.00am, the body was seen floating by the witnesses at 1.00pm. He submits that within three hours the body would not float. P.W.3 who had recovered the body from the water had categorically stated that it was 1.00pm when he entered the canal and recovered the body. The learned counsel submits that, according to Taylor in his book Principles and Practice of Medical Jurisprudence, 13th Edn., at p.300;

"The recovery of an immersed body:

After drowning has occurred, the body usually sinks and then may reappear after a variable period of time. The time interval depends on:

the nature of the water - salt or fresh;

the specific gravity of the body;

the rate of putrefactive change.

It may be recalled that according to the principle of Archimedes, a body in water will experience a buoyant force equal to the weight of water it displaces. Also the specific gravity of the body relates the weight and volume of the body to that of the water. The specific gravity of the human body is very close to that of water. Small variations, therefore, have considerable effect on the buoyancy.

He also refers to Modi''s Textbook of Medical Jurisprudence and Toxicology, 21st Edn. at p.220.

"Length of time the body was in water:

Normally the human body is slightly heavier than fresh water and immediately the person becomes unconscious, sinks and goes down to the bottom unless there is some obstruction in between or there is a strong upward current in the water. Owing to putrefaction and formation of gases all bodies sooner or later again come up to the surface, it is much quicker in warm water than cold. Usually the sunk body comes to the surface a little distance away from the site of drowning, however, the current, its speed and the tide in sea water are some of the factors."

He submits that it is not possible that a body would float only after 3 hours of its drowning. He relies on a judgment of Supreme Court in Kavita vs. State of T.N (1) in this regard. But, without going to such an issue, at present we are convinced that the accused could have not been convicted on the basis of evidence on record. P.W.3 who recovered the body and P.W.7 who took the deceased to hospital stated that when she was brought out of the water she was still alive. P.W.3 had felt that the girl was alive and after Ravinder (not examined) gave first aid she had vomited out water and then she had been taken to hospital. This is even corroborated by P.W.7. But, when they reached hospital she was declared dead. So, if the deceased was alive between 1.00 and 1.30pm when she was brought out of water one could not believe that she had been thrown into the water at 10.00am. In the postmortem report the Doctor found "Both lungs swollen as frothy fluid coming out from cut section of both lungs". According to Modi''s Medical Jurisprudence and Toxicology(20th Edition) mostly in drowning persons die with asphyxia because after drowning water gets into the lungs and it gets churned up with air and mucus and produces a fine froth which blocks the air vesicles. According to Modi also it is in minutes that death is caused after drowning and it would not take hours. At page-165 of Medical Jurisprudence and Toxicology(20th Edition) Modi describes the fatal period as under;

"Fatal period - Asphyxia supervenes within two minutes after complete submersion, and the heart stops in two to five minutes afterwards. It has been found from observations that even expert divers cannot hold their breath under water for two minutes continuously. Hyperventilation as a means to prolong underwater swimming may induce unconsciousness. Death is almost sure after complete submersion for five minutes, unless water was prevented from entering the lungs on account of vagal inhibition or syncope caused at the time of the fall. Such cases are possible of resuscitation even after an immersion of ten to twenty minutes. Even divers with special underwater breathing apparatus may also die of myocardial infraction and brain damage as a result of air emboli due to increased alveolar pressure from faulty breathing technique while coming upto the surface."

For these reasons, we feel that benefit of doubt should have been given to the accused.

We accordingly allow the appeal, set aside the conviction and sentence and acquit the accused-appellant. He shall be released forthwith if not needed in any other case.