The State of a.P., Rep by Pp., Vs Ulavala Venkateswara Rao and 3 Others

THE HON’BLE SRI JUSTICE K.SREENIVASA REDDY CRIMINAL APPEAL No.692 of 2008

JUDGMENT:

This Criminal Appeal is preferred by the State against the Judgment dated 13.04.2007 passed in SC No.401 of 2003 by the learned II Additional Assistant Sessions Judge, Guntur whereby and whereunder the respondents herein/A.1 to A.4 was found not guilty of the offences punishable under Sections 306, 506 and 420 IPC, accordingly, they were acquitted of the said charges.

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Case of the prosecution, in brief, is as follows.

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One Thota Yesu Rajyam (hereinafter referred to, as „the deceased) is elder daughter of P.W.1 and L.W.2-Koteswaramma. P.W.1 was a Carpenter. A.4, who is none other than brother of A.1, was residing backside of house of P.W.1 in Kattavari Street, Old Guntur. A.2 and A.3 are parents of A.1. The deceased stopped her studies nearly two years prior to the incident, after completing 8^th class, when P.W.1 came to know that the deceased and A.1 fell in love. Later, the deceased was doing household work in home. A.1 lured her under the illusion of love and the deceased also fell in love with A.1. When A.1 refused to

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marry her two months prior to the incident, the deceased, vexed with her life, tried to commit suicide by hanging, but the same was prevented by P.W.1, who was informed about the reason for her attempt. Thereafter, P.W.1 started searching for a good alliance for her. 10 days prior to the incident, the deceased brought pesticide bottle to house, but having noticed the same, P.W.1 removed the bottle from the house. When P.W.1 approached the S.I. of Police and requested him to perform marriage of the deceased with A.1, he was not inclined to do so as the deceased was a minor. In the year 2003, P.Ws.2 to 6 approached A.2 and A.3 in the house of A.4 and requested to perform marriage of A.1 with the deceased, for which A.2 to A.4 replied that they had no knowledge of the love affair and refused to perform the marriage. A.1 informed the elders that he was interested to marry another girl. On the date of the incident i.e. 11.3.2003 at about 2.00 PM, while P.Ws.1 to 6 and L.W.2-Koteswaramma were discussing in the verandah of the house of P.W.1 about settling the marriage issue, the deceased, under the apprehension that A.1 would not marry her, went into kitchen room, poured kerosene over her body and set fire. On hearing her cries, P.Ws.1 to 6 rushed to the kitchen, P.W.2 broke open doors of the room and found the

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deceased in flames. They poured water on her and took her outside the room. At that time, the deceased informed the witnesses that the accused threatened her to kill P.W.1 if she reveals the love affair to others. The deceased was shifted to Government General Hospital, Guntur.

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On 11.3.2003, P.W.10-Magistrate recorded Ex.P6-dying declaration of the deceased. After receipt of hospital intimation, P.W.13 visited the hospital, recorded statement of the deceased and registered a case in crime No.39 of 2003 of Old Guntur police station, for the offences under Sections 420, 506 and 309 IPC under Ex.P12-FIR. During the course of investigation, he recorded statements of other witnesses, visited the place of incident, seized the material objects, prepared rough sketch of the scene of offence and got it photographed. On 17.3.2003, on receipt of death intimation Ex.P14, he altered the Sections of law to Sections 420, 506 and 306 IPC, issued altered FIR Ex.P15, visited the hospital, conducted inquest on the dead body of the deceased in the presence of mediators under Ex.P4-inquest report, sent the dead body for post mortem examination, and after completion of investigation and receipt of relevant documents, filed the charge sheet against A.1.

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The learned VI Additional Munsif Magistrate, Guntur took cognizance of the case against the accused for the offences punishable under Sections 306, 506 and 420 IPC and registered the case in PRC No.24 of 2003. As the offence punishable under Section 306 IPC is exclusively triable by the Court of Session, the learned Magistrate, after complying with the due procedure prescribed under law, committed the said PRC to the Court of Session, Guntur. The said case was numbered as SC No.401 of 2003 and thereafter the same was made over to the Court of the II Additional Assistant Sessions Judge, Guntur for disposal according to law.

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On appearance of the accused, charges under Sections 306, 506 and 420 IPC were framed against A.1, contents of the charges were read over and explained to him in Telugu, for which he pleaded not guilty and claimed to be tried.

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During trial, in the course of examination-in-chief of P.W.1, A.2 to A.4 were added as accused in the Sessions Case. After furnishing documents to them and after framing charges against them, trial was proceeded with. On behalf of the prosecution,

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PWs.1 to 13 were examined and Exs.P1 to P15 were got marked, besides material objects M.Os.1 to 3.

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After closure of the prosecution evidence, accused were examined under Section 313 Cr.P.C., explaining the incriminating material found against them in the evidence of prosecution witnesses, for which they denied.

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On behalf of the accused, no oral evidence was adduced, but Exs.D1 to D8 were got marked.

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The learned Assistant Sessions Judge, on appreciation of entire oral and documentary evidence on record, found the accused not guilty of the offences punishable under Sections 306, 506 and 420 IPC, accordingly, acquitted them of the said charges, vide impugned judgment. Aggrieved by the said judgment passed by the learned Assistant Sessions Judge, State preferred the present Criminal Appeal.

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Learned Additional Public Prosecutor submitted that from the evidence of material prosecution witnesses P.Ws.1 to 6 and the recitals in Ex.P6-Dying Declaration recorded by P.W.10Magistrate, the prosecution is able to establish the ingredients of

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the offences punishable under Sections 306, 506 and 420 IPC against the accused as the deceased committed suicide in view of refusal of A.1 to marry her, but the learned Assistant Sessions Judge, failed to appreciate their evidence in proper perspective and erred in acquitting the accused of the aforesaid charges. Hence, he prayed to set aside the impugned judgment and convict the accused.

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On the other hand, learned counsel appearing for the accused submitted that in order to attract the offence under Section 306 IPC, it is essential that all the ingredients of Section 107 IPC have to be satisfied. According to him, there should be intentional aiding and instigation to drive the woman to commit suicide, but going by the record, the essential ingredients of Section 107 IPC have not been satisfied. He emphasized that it is the parents of the deceased, who were opposing for marriage between the deceased and A.1, and the portions of statements of P.Ws.1 to 7 under Section 161 CrPC, marked as Exs.D1 to D8, clearly go to show that the accused were willing for marriage between A.1 and the deceased, after she attains majority. He submits that there is no dishonest intention from the inception so

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as to attract the offence of cheating, and also there is no threat by A.1 to the deceased. He submitted that the learned Assistant Sessions Judge has rightly acquitted the accused and the same does not warrant any interference by this Court.

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Heard. Perused the record.

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Now, the point for determination is whether the prosecution is able to establish its case against the accused beyond reasonable doubt for the charges levelled against him and whether the impugned judgment needs any interference by this Court ?

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This is an appeal against an Order of acquittal. There is a presumption available under law that an accused is presumed to be innocent unless contrary is proved. That presumption of innocence is further strengthened by an order of acquittal passed by the trial Court. In dealing with the appeals against acquittal, though this Court has full power to re-appreciate the evidence, at the same time, it would be slow in interfering with the order of acquittal because presumption available under law is further strengthened by the order of acquittal. Unless there are substantial or compelling reasons, this Court will not ordinarily disturb the findings of the trial Court. If the trial Court has given

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any perverse finding, then it can be a ground to interfere with the order of acquittal. Similarly, if admissible evidence has not been taken into consideration or inadmissible evidence has been looked into for the purpose of arriving at a particular finding, then also it can be said to be a compelling reason to interfere with the same.

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On this aspect, it is pertinent to refer to a decision in Harbans Singh & another v. the State of Punjab¹ , wherein it was held as follows: (para 8)

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“The question as regards the correct principles to be applied by a Court hearing an appeal against acquittal of a person has engaged the attention of this Court from the very beginning. In many cases, especially the earlier ones, the Court has in laying down such principles emphasized the necessity of interference with an order of acquittal being based only on „compelling and substantial reasons‟ and has expressed the view that unless such reasons are present in an Appeal, Court should not interfere with an order of acquittal (Vide Suraj Pal Singh v. The State, 1952 SCR 193: (AIR 1952 SC 52); Ajmer Singh v. State of Punjab, 1953 SCR 418: (AIR 1953 SC 459). The use of the words, „compelling reasons‟ embarrassed some of the High Courts in exercising their jurisdiction in appeals against acquittals and difficulties occasionally arose as to what this Court had, meant by the words „compelling reasons‟. In later years the Court has often avoided emphasis on „compelling reasons‟ but nonetheless adhered to the view expressed earlier that before interfering in appeal with an order of acquittal a Court must examine not only questions of law and fact

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1 AIR 1962 SC 439

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in all their aspects but must also closely and carefully examine the reasons which impelled the lower courts to acquit the accused and should interfere only if satisfied, after such examination that the conclusion reached by the lower court that the guilt of the person has not been proved is unreasonable.”

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In the case on hand, the prosecution mainly relied on the evidence of P.Ws.1 to 7 and recitals in Ex.P6-dying declaration recorded by P.W.10-Magistrate. It is the evidence of material prosecution witnesses that A.1 and the deceased fell in love and as A.1 failed to marry the deceased, she committed suicide on the fateful day by pouring kerosene and litting fire to her. The learned Magistrate, who recorded dying declaration of the deceased was examined as P.W.10. A perusal of the recitals in Ex.P6-Dying Declaration goes to show that while the deceased was studying in Yadava High School, A.1 developed love towards her for the last two months prior to the incident and he used to pick her up from Old Guntur park and drop her at School by bicycle, and her parents were not aware of the same. It is further clear that when her maternal uncle saw both of them and questioned A.1, A.1 stated to her maternal uncle that he would marry the deceased, and when her parents came to know about the affair, they discontinued her studies, and in this regard, a quarrel ensued between parents of the deceased and the parents

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of A.1 and they went to police station, wherein, about two days prior to the incident, A.1 and his parents told that A.1 would not marry her, and hence, she poured kerosene and set fire to herself.

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1^st charge against the accused is for the offence under Section 306 IPC. If any person commits suicide, the person abetting the commission of the said act is punishable under Section 306 IPC. In order to attract „abetment‟ mentioned in Section 306 IPC, it is essential that all the ingredients of Section 107 IPC have to be satisfied. Under Section 107 IPC, a person is said to have abetted doing of a thing when he –(i) instigates that person to do that thing; (ii) engages with one or more other person or persons in any conspiracy for the doing of that thing; or (iii) intentionally aids, by any act or illegal omission, the doing of that thing. Under Explanation (2) to Section 107 IPC, whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act.

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In the present case, there is no instigation or conspiracy, to abet the deceased to commit suicide. As far as clause (iii) of Section 107 IPC is concerned, which deals with intentional aiding, by any act or illegal omission, the doing of that thing, even accepting the case of prosecution, expressing disinclination to marry, in the facts and circumstances of the present case, does not amount to intentionally aiding the person to commit suicide. In fact, there was no dishonest intention at the inception on the part of A.1 to deceive the deceased. As per the recitals in Ex.P6dying declaration, initially A.1 and the deceased were in love and A.1 assured her to marry, and A.1 also stated to maternal uncle of the deceased that he would marry the deceased. However, it is the parents of the deceased, who discontinued her studies, after they came to know about the love affair.

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Admittedly, the deceased was minor at the relevant point of time of the incident. It is the case of the prosecution that the deceased and A.1 were in love with each other and A.1 refused to marry her with the influence of A.2 to A.4, and in view of the same, she committed suicide. A perusal of Exs.D1 to D5 and D7 and D8, which are portions of statements of P.Ws.1 to 7 under

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Section 161 CrPC, go to show that the accused were willing for marriage between A.1 and the deceased, however, in view of the fact that the deceased was a minor at that time, they assured to perform the marriage after she attains majority. The said portions were confronted to P.W.13-investigating officer, who is maker of statements, and he stated that the said statements were given by the witnesses to him. The said statements are quite contrary to the case of the prosecution. Therefore, in view of the said statements, there is any amount of ambiguity in the prosecution version that the accused refused for marriage of the deceased with A.1.

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Further more, the incident happened in the house of parents of the deceased. The accused persons were not present at the time of the incident. The said act alleged against the accused would not attract the ingredients of clause (iii) of Section 107 IPC. In the circumstances of the case, failure of A.1 to marry the deceased and failure of A.2 to A.4 to perform marriage of the deceased with A.1, would not attract clause (iii) of Section 107 IPC. A perusal of the entire evidence on record goes to show that the essential ingredients of Section 107 IPC have not been

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satisfied in order to attract the offence under Section 306 IPC. In

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a criminal trial, however intriguing may be facts and circumstances of the case, the charges made against the accused must be proved beyond all reasonable doubts and the requirement of proof cannot lie in the realm of surmises and conjectures. Further, there is no evidence on record to show that the accused threatened the deceased at any point of time. Therefore, this Court has no hesitation to hold that the prosecution failed to establish the ingredients to constitute the offences punishable under Sections 306, 506 and 420 IPC against the accused beyond reasonable doubt. The impugned judgment passed by the learned Assistant Sessions Judge is on correct lines and there are no compelling or substantial reasons to interfere with the impugned Order of acquittal passed by the trial Court. The Criminal Appeal is devoid of merit and the same is liable to be dismissed.

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20. Accordingly, the Criminal Appeal is dismissed, confirming

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the Judgment dated 13.04.2007 passed in SC No.401 of 2003 by the learned II Additional Assistant Sessions Judge, Guntur.

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As a sequel thereto, the miscellaneous petitions, if any,

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pending in this Criminal Appeal, shall stand closed.