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IN THE COURT OF THE PRINCIPAL ASSISTANT SESSIONS JUDGE::
KAKINADA
PRESENT: Dr. N. Sreenivasa Rao
PRL. ASSISTANT SESSIONS JUDGE.
Tuesday, 22nd day of August, 2023
SESSIONS CASE No. 82/2023
Complainant State: Represented by the Sub Inspector of Police, I Town L&O Police Station, Kakinada
Name of the Accused A.1Vaidani Satish Kumar. A.2Vaidani Anjaneyulu @ Anji.
Offences charged Under Section 306 r/w 34 of Indian Penal Code
Plea of the Accused Pleaded not Guilty
Name of the Police Station andCr. No.147/2021 of I Town L&O Police station, crime Number Kakinada.
Finding of the Judge Found not guilty for the offence u/sec.306, 306 r/w 34 and section 509 of IPC.
Sentence of Order In the result, the accused A1, A2 are not found guilty of the offences punishable under Section 306, 306 r/w 34 respectively and Section 509 of
Indian Penal Code, and they are acquitted
Under Section 232 of the Criminal Procedure
Code. The accused A1, A2 are set at liberty forthwith. The bail bonds and sureties of the accused A1, A2 shall be in force for a period of 6 months Under Section 437(A) of the Criminal
Procedure Code. The case property MO.2 chlorpyriphos empty poison bottle and the unmarked non-valuable property, if any, shall be destroyed after the lapse of appeal time if no appeal is pending. The case property M.O1,
MO3 and M.O4 mobile phones shall be returned to the concerned after lapse of appeal time if no appeal is pending. If the concerned parties are not claimed, they are directed to 2 dispose according to law after lapse of appeal time if no appeal is pending. The office is directed to transmit the entire case property to the committal court immediately for taking further steps.
The court, considering the material on record, recommends the Hon'ble District Legal
Services Authority, Rajamahendravaram, East
Godavari District, to examine the case for compensation under Section 357-A of The Code of Criminal Procedure under the Victim
Compensation Schemes to the family members of the deceased Pemmadi. Devi.
Prosecution conducted by Additional Public Prosecutor
Defence conducted by Sri P. Prasanna Kumar
This case comes before me for a final hearing in the presence of learned
Addl. Public Prosecutor for the Prosecution and Sri P. Prasanna Kumar, the learned Advocate for the A.1 and A.2 and upon perusing the material papers on record and having stood over for consideration, this Court delivered the following:-
:: J U D G M E N T::
The Sub Inspector of police, I Town L&O Police Station filed the charge sheet in Cr. No.147/2021 for the offence punishable under Section 306 r/w 34 of Indian
Penal Code (hereinafter referred as IPC) against the A.1, A.2 and the learned III
Additional Judicial First Class Magistrate, Kakinada, as per law, committed this
case vide PRC No.62/2022 to the Hon'ble Sessions Division and Hon'ble Session
Court made over the same to this court to dispose of the same according to law.
2. The Case of the prosecution in short are as follows:
The Sub-Inspector of Police, I Town L& O Police Station filed charge sheet against A1, A2 alleging that the marriage of deceased Pemmadi Devi is performed with LW1 Pemmadi Vijaybhaskar and they blessed with two children and the LW1 3 doing as carpenter and that they are residing in a rented house at Maridammapeta,
Jagannadhapuram, Kakinada. It is further alleged that the deceased Pemmadai
Devi moved closely with A1 for which the wife of A1 placed the dispute before her parents and they admonished accused A1 and the deceased.
3.It is further alleged that on 18-07-2021, the deceased and LW1 altercated in regard to shifting their rented house and on the same day the deceased consumed insecticide poison and thereon the LW1 shifted her to GGH, Kakinada. Further as per the case record on 18-07-2021 on receipt of MLC intimation from GGH,
Kakinada, the LW 15 Ch. Narasimharao, ASI 810 of their police station visited the
GGH, Kakinada secured the presence of deceased P. Devi, recorded her statement and that while undergoing treatment, the deceased P. Devi died at GGH, Kakinada on 20-07-2021.
4.Further basing on the statement of P. Devi, the LW15 registered a case in
Crime No.147/2021 of I Town L & O PS under section 174 Cr.PC. Thereon he secured the presence of PW1 at the police station and recorded his statement.
Thereafter he visited the scene of offence situated at the house of PW1, deceased P.
Devi at Maridammapeta, Jagannadhapuram of Kakinada along with mediators
PW6, LW10 and LW11 Kolli Siva observed the scene and prepared scene observation report. He also prepared rough sketch of the scene and got photographed the scene of offence. He also seized MO.2 bottle from the scene of offence under the cover of mediators report. There he secured the presence of PW2
O. Satyavathi, LW3 B. Kamaraju examined them and recorded their statements.
5.Further the LW15 visited mortuary GGH, Kakinada and there he conducted inquest over the dead body of the deceased P. Devi in the presence of same mediators, blood relatives of the deceased. There he secured the presence of PW3,
LW5 Chekka Srinu, PW4 Chekka Veerababu and LW7 A. Ramana examined them and recorded their statements. Thereafter the dead body of the deceased shifted to mortuary, GGH, Kakinada and got conducted PM examination over the dead body of the deceased through PW8 and thereon he handed over the dead body of the deceased to the PW1, his relatives.
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6.It is further alleged that on 06-09-2021, at the time of cleaning the house of the deceased they found the mobile phone of the deceased in her steel almira and on seeing the contents of the said mobile phone, they found chatting and voice record in the mobile phone of the deceased and they found that A1, A2 are responsible for the death of the deceased by way of abetting her to commit suicide.
They also found a conference call between mobile numbers of A1, A2 and the deceased dated 14-07-2021 wherein the deceased asked the accused A1 as “nenu avarito padukunnanu naku mugguru maridigarulu vunnaru, varilo avarito padukunnano cheppali”. On that A1 replied that “ adi neekey teligali nuvvu avaridagga padukunnavo nakemitelusu”. Then the deceased said that “ Maridigaru antenaku kodukulato samanam”. On that A1 insulted the deceased as “ aamate neeku suitavvadu”. On that the deceased asked A2 as “ chuseva anji, satish ala mataladunnado”. On that the A2 replied that “ me iddari godavalo nannu lagavaddu”. On that A1 insulted the deceased as “Nuvvu pativratala mataladavaddu”. Later when the deceased kept her mobile phone on hold, the accused A1, A2 continued their conversation by way of insulting the deceased thinking that the deceased disconnected her mobile.
7.In that conversation, the A1 asked A2 as “neeto padukunnatu oppokovachukada, inka pativratala mataladutundi, ninna manam mataladukunnam kada, mee iddarimadhya emigarigindi. On that A2 replied as “Naku senkaakkindante nenu deenini podichesi jailki velipotanu”. On that A1 replied that “nipani cheputara nuvvu okkasari vesi vadilinchukunnavu, nenu vadilinchukolekapotunnanu”. On the same day at 10.14 pm, A1 made chatting with the deceased as “Todameeda cheyyavesi ruddite denginchukunnavu, madam meeru super, vaya varasa leda kojjadana”. Further the A1 made chatting with the deceased with his mobile number 9912112486 to the mobile number of the deceased bearing
No.6305710298 on 15-07-2021 at 1.47 pm in which A1 insulted the deceased as
Neeku vayi varasa leda kojjadana, bokudana, neevu okkadiki puttivunti naku call cheyyaddu. Further on the same day at 2.29 pm, the A1 insulted the deceased as “ bokulanga, pativatalaga natinchaku, peddapuram boku dabbulaku deginchukutaru, nuvvu dulekki denginchukunnavu, neelanti bokumundalakosam bangaram lanti na pellani dooramchesukunnanu”. Further on the same day at 2.50 pm the A1 insulted 5 the deceased “ Nuvvu manishiva, nuvvu Adadaniva, sontha maridi Anajaneyulu oppukochalu, Nuvvu tappu chesavani. While they were discussing about the messages, the deceased informed to LW8 S. Jyothi about harassment of the A1, A2 towards deceased and the deceased informed with her that she will died due to insult caused to her by A1, A2 and LW8 console the deceased.
8. Further on 09-09-2021, while P.W.9 was present in the police station, he received further police report along with MO.1 smart phone, Ex.P3 compact disc, six printed sheets from PW3. Basing on the above report, documents, MO.1 cell phone, he had altered the section of Law from section 174 Cr.P.C to section 306 r/w 34 of IPC and submitted altered memo to all the concerned and the original altered memo to the court. There he examined PW3 and recorded her statement.
9. Further on 10-09-2021, he visited the scene of offence observed the same, he secured the presence of PW1, PW2, LW3 P. Kamaraju, LW5 Ch. Srinu, PW4, LW7
A. Ramana and PW5 examined them and recorded their statements. Thereafter he secured PW7, LW13 G. Siva Surya Lakshmi to the police station, in their presence he examined MO1, Ex.P3 and for the said occurrence mediators report were drafted under Ex.P7. He had opened the MO.1 cell phone with the pass word i.e, 686868 given by PW5 and gone through the messages, voice call record received from A.1 with mobile No.9912112486 (jio sim) and they are similar to information present in Ex.P3 compact disc, printed documents. Further the A2 used the mobile number i.e., Jio sim number 6300503740, the deceased used Jio sim number 6305710298.
10. Further on 13-09-2021, on credible information he secured the presence of
PW7, LW13 G. Siva Surya lakshmi, proceed to the house of the accused A1 bearing house D.No.48-3-18, Kamalavari street, Golilapeta, Jagannadhapuram,
Kakinada and there they found A1, A2. There the accused A1, A2 confessed about the committing of the offence and the same is reduced into writing under Ex.P8 mediators report. He also seized the cell phones of A1, A2 under the cover of same mediators report. Thereafter he sent the A1, A2 to Judicial remand by following due procedure and got remanded them. Thereafter he send the mobile phones of the 6 deceased, A1, A2 to nodal officer, Telecom department, Kakinada and they confirmed that the MO1 cell phone used by the deceased P. Devi, MO3 cell phone used by A1, MO4 cell phone used by A2.
11. Further on 28-03-2022, he received final opinion from RFSL, Vijayawada and basing on the said report the PW8 opined that the death of the deceased P. Devi occurred due to consumption of chlorpyriphos an insecticide poison. After completion of investigation in all respects, he filed charge sheet in this case against
A1, A2 for the offence punishable under section 306 r/w 34 of IPC.
12. On perusal of the contents of the charge sheet coupled with other material documents in the record, the learned III Additional Judicial First Class Magistrate,
Kakinada took cognizance of the offence under section 306 r/w 34 of Indian Penal
Code and the same is numbered as P.R.C.No.62/2022 and as per law committed the matter to the Hon'ble Sessions Division U/Sec.209 of Criminal Procedure Code (herein after referred as Cr.P.C) and Hon'ble Session Court made over the same to this court to dispose of the same according to law.
13. Thereafter on securing the presence of the A.1 and A.2 and on hearing the learned Addl. Public Prosecutor and defence counsel, the A.1 and A.2 were examined under section 228 of Cr. P.C. and on his denial about committing of offence, framed the charge for the offence punishable Under Section 306, 306 r/w 34 of IPC against the A.1 and A.2 respectively. The contents of the charge are read over and explained to them in Telugu, to which the accused pleaded not guilty and claimed to be tried. Hence this court proceeded with the trial.
14. During the course of the trial, the Prosecution examined PW1 to PW.9 and got marked Ex.P-1 to Ex.P-17 and M.O1 to 4. During cross examination of P.W.2,
Ex.D.1 and D.2 marked. After the closure of prosecution side evidence, the A.1 and A.2 were examined under section 313 Cr.P.C. The incriminating evidence deposed by the prosecution witnesses was read over and explained to the A.1 and
A.2 in Telugu, to which they denied the truth of the entire evidence. During 313
Cr.P.C examination the A.1 and A.2 stated that they did not commit any offence 7 and they are falsely implicated in this case. The accused persons further reported that there is no defence evidence on their side.
15. The learned Additional P.P. and the learned defence counsels for accused persons submitted oral arguments. Perused the material in the record and considered the evidence of PW1 to PW9 coupled with documents, Ex.P-1 to Ex.P- 17, MOs 1 to 4 and Ex.D1, D2.
16. The point for determination is: Whether the conduct of the A.1 and A.2 falls within the ambit of Section 306, 306 r/w 34 and 509 of The Indian Penal
Code, 1860 respectively and whether the prosecution proved their guilt beyond reasonable doubt?
Point Answered: To substantiate the case of the Prosecution, they examined
PWs.1 to 9. Among them, PW1-P.Vijaybhaskar who is husband of deceased P.
Devi has said that his marriage with the deceased A. Devi took place in the year 2006 and theyblessed with two children. At present his elder daughter is aged about 15 years and his son is aged about 13 years and they are going to school. He is doing carpenter work and during the time of the incident relating to this case, they used to reside in a rented house as his own house is not in fit condition to live.
He further said that the incident relating to this case took place on 18-07-2021 and on the said day at about 10.30 am some altercation took place in between himself, his wife and he requested his wife to shift to their own house as he is not able to pay the rent due to non-availability of sufficient carpentry work to which his wife not accepted as their own house is very small and suggested to shift another rented house. In connection with, altercation took place between himself, his wife and after some time he went out and thereafter at about 12.30 noon, he came back to their house and found his wife in unconscious condition in the house. Then he sprinkled water upon the face of his wife and upon question she said that she had consumed poison which is used for controlling the pest and again she became unconscious. Immediately, he shifted her in an auto to the GGH, Kakinada for treatment. There doctors treated her and while undergoing treatment she died on 20-07-2021.
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17. P.W.1 further said that after the death of his wife at GGH, Kakinada, he gave report at I Town L & O PS, Kakinada. Ex.P1 is the report given by him to the I
Town L & O PS, Kakinada. After her death, the police conducted inquest and after completion of PM examination, the dead body of his wife handed over to them and as their rental house owner did not allow the dead body of his wife, they completed the final rituals of his wife at his in laws house. Thereafter, on 06-09- 2021 while they were vacating the rented house, the LW8 Jyothi found the ‘oppo’ company smart phone belongs to his wife in the iron shelf in between the clothes.
Thereon the LW8 S. Jyothi opened the cell phone and found call list, voice messages, chat messages and the same are shown that the said conversations took place between A1, A2 and his deceased wife and they are taken place three days prior to consumption of poison by his deceased wife. In the said conversation the
A1, A2 used filthy language against his wife and they assassinated character of his wife and filthy language used by A1, A2 are in voice messages, chat messages.
18. P.W.1 further said that after noticing the above they had handed over the said smart phone of his deceased wife to the I Town L & O PS, Kakinada along with report. After noticing all the conversations above, they came to conclusion that due to harassment, character assassination of the deceased by A1, A2, she consumed pest poison and thereafter died. MO1 is the smart phone ( Oppo company), MO2 is the chlorpiriphos empty poison bottle are marked.
19.Further the prosecution testified PW2 O. Satyavathi who is maternal aunt of deceased P. Devi and she said that the incident relating to this case took place at about 2 years back on one day at the rented house of the deceased P. Devi and
PW1. On the said day at about 12.30 noon, the PW1 informed to her that the deceased consumed pest poison. Then she, others rushed to their house and shifted the injured to GGH, Kakinada and while undergoing treatment, she died in the hospital in two days after the incident. Thereafter the police visited the GGH,
Kakinada and recorded her statement.
20. P.W.2 further said that as the rented house owner did not allow the dead body of the deceased, they completed her final rituals at her parents’ house. After 9 two months of the incident, she, PW1 went to vacate the rented house and at that time the LW8 Jyothi found MO1 cell phone in iron shelf in between the clothes.
The LW8 Jyothi opened the cell phone of the deceased, found voice messages, whatsapp messages, wherein they found the accused A1, A2 used filthy language against the deceased Devi and they assassinated the character of the deceased.
Thereafter her sister LW4 Nookaratnam gave report at I Town L & O PS, Kakinada and also handed over MO1 cell phone to them.
21. Further prosecution testified PW3-Chekka Nookaratnam who is mother of deceased P. Devi and she said that the incident relating to this case took place at about 2 years back on one day at the rented house of the deceased P. Devi and
PW1. On the said day at about 12.30 noon, the PW1 informed to her that the deceased consumed pest poison. Then she, others rushed to their house and shifted the injured to GGH, Kakinada and while undergoing treatment, she died in the hospital in two days after the incident. Thereafter the police visited the GGH,
Kakinada and recorded her statement.
22.Further P.W.3 stated that as the rented house owner did not allow the dead body of the deceased, they completed her final rituals at their house. Two months after the incident, she, PW2, LW8 Jyothi went to vacate the rented house and at that time the LW8 Jyothi found MO1 cell phone in iron shelf in between the clothes. The LW8 Jyothi opened the cell phone of the deceased, found voice messages, whatsapp messages wherein they foundthat the accused A1, A2 used filthy language against the deceased P. Devi and they assassinated the character of the deceased. Thereafter she gave Ex.P.2 report dt:09-09-2021 at I Town L & O PS,
Kakinada and also handed over MO1 cell phone to them.
23. Further prosecution testified PW4-Chekka Veerababu who is brother of the deceased P. Devi and he said that the incident relating to this case took place at about 2 years back on one day at the rented house of the deceased P. Devi and PW1 at Maridammapeta, Jagannadhapuram, Kakinada. Fifteen days prior to the incident, on one day the wife of A1 came to the house of the PW1 and made galata stating that the deceased P. Devi talking with A1 in phone and in that connection his 10 parents admonished the deceased P. Devi. Further on the said day of incident some altercation took place in between PW1 and his wife P. Devi in connection with shifting from rented house to own house and thereafter the PW1 left the house.
Thereafter at about 2.00 pm, his mother informed to him that the deceased consumed pest poison. Then he, others rushed to GGH, Kakinada and while undergoing treatment, she died in the hospital in two days after the incident.
24.The P.W.4 further said that as the rented house owner did not allow the dead body of the deceased, they completed her final rituals at their house. Two months after the incident, his mother, PW2, LW8 Jyothi went to vacate the rented house of
PW1, deceased and at that time the LW8 Jyothi found MO1 cell phone in iron shelf in between the clothes. The LW8 Jyothi opened the cell phone of the deceased, found voice messages, whatsapp messages wherein they found that the accused A1,
A2 used filthy language against the deceased P. Devi and they assassinated the character of the deceased. Thereafter, PW3 gave report at I Town L & O PS,
Kakinada and also handed over MO1 cell phone to them.
25. Further the prosecution testified PW5-Sandadi Jyothi who is younger sister of the deceased P. Devi and she said that the incident relating to this case took place on 18-07-2021 at the rented house of the deceased P. Devi and PW1 at
Maridammapeta, Jagannadhapuram, Kakinada. On the said day at about 1.00 pm her mother informed that the deceased consumed pest poison and admitted in
GGH, Kakinada. Then she, others rushed to GGH, Kakinada and while undergoing treatment her sister P. Devi died in GGH, Kakinada while undergoing treatment.
26. The P.W.5 further said that initially on enquiry they came to know that the
PW1 and deceased used to altercate in regard to shifting from rented house to their own house at Gowrisankarpeta, Kakinada as PW1 unable to pay the rent due to non-availability of work. In that connection on the said day of incident also the
PW1, the deceased altercated and thereafter the PW1 went outside. Thereon the
PW1 vexed with her life and consumed pest poison. Accordingly she stated the same before the police on 20-07-2021.
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27. The P.W.5 further said that after completion of all ceremonies of deceased at their parents’ house on 06-09-2021 she, PW1 to PW3 went to the rented house of
PW1, deceased to clean and vacate the same. While doing so when she is set righting the clothes of the deceased, she found MO1 cell phone in between the clothes of the deceased in iron shelf. Then she opened the said cell phone and found voice recordings, whatsapp messages and call records. On observing the voice recordings dt. 14-7-2021 in between 1-30 pm to 1.40 pm, the conference call took place in between the deceased and both the accused. In the said conference call at first the deceased questioned the A1 stating that “Naku Mugguru
Maridigarulu vunnaru, nenu avarito padukunnano nuvvu cheppali” to which the A1 stated that “ Adinakuamitelusu neke teligali avaridaggara padukunnavo”. Then the deceased asked A2 who is in conference call stating that “angi chusava satish ela mataladutunnado” to which the A2 stated that “Nakuemitelusu me iddarigodavallo nannu lagavaddu”. Thereafter the deceased kept her phone on hold and on that presuming that the deceased is not in conference call, the A1 said with A2 stating that “prativratala mataladuthundi neeto padukunnattu oppukovachu kadara”. Then the A2 stated with A1 stating that “Nakukanaka sanka ekkindante nenu devini podichivesi jailku vellipotanu”.
28. The P.W.5 further said that she also noticed the A1 is having whatsapp chat with the deceased on 15-7-2021 from 1.40 pm onwards stating that “oppukovachukada maridigarito pandukunnavani, todameedi cheyyavesi ruddite padukuntava maridigarito” and also in the same way the A1 had also send several other messages with filthy language and they are having in the MO1 cell phone.
29.The P.W.5 further said that on observing the above said voice, other messages, her mother PW3 gave report at I Town L & O PS, Kakinada and also handed over MO1 cell phone for necessary action. After gone through the contents of MO1 cell phone, they had opined that the deceased died by consuming pest poison due to harassment made by A1, A2 as stated above and died thereafter.
They also handed over CD of voice messages, printed copies of chat messages to the police along with MO1 and the same was got done by her. Ex.P3 is the CD along with six printed sheets were marked.
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30. Further prosecution testified PW6-Syed Sahul Ameer who acted as one of the mediator and he said that on 20-07-2021 at about 11-30 a.m., at the request of I
Town L&O P.S., Kakinada he, L.W.10-Nagaraju visited the house of the deceased at Maridamma peta, Kakinada observed the scene in the presence of police and seized MO.1 bottle at the scene of offence. Police also photographed the scene of offence. For the said occurrence, the police drafted mediators report on which, he,
L.W.10 were signed. Ex.P.4 is the scene observation report dt:20-07-2021 at 11-30 a.m.
31. The P.W.6 further said that on the same day at about 1 p.m., police conducted inquest over the dead body of the deceased P. Devi at Mortuary, GGH, Kakinada in the presence of himself, L.W.10, L.W.11-K.Siva. For the said occurrence, the police prepared inquest panchanama on which he, L.W.10 and L.W.11 signed as witnesses. They opined that the deceased died due to consuming poison. Ex.P.5 is the inquest panchanama dt:20-07-2021 at 1 p.m. At the mortuary police got photographed the dead body of the deceased. Ex.P.6 is consisting of four positive photographs.
32. Further prosecution testified PW7-K.Lova Murthy who is VRO of JK Puram,
Kakinada and he said that on 10-09-2021 at about 2 p.m., at request of I Town
L&O P.S., police, Kakinada, himself, L.W.13-G.Siva Surya Lakshmi went to I
Town L&O Police Station, Kakinada. There in their presence the SI of Police, I
Town L&O PS., Kakinada connected the MO.1 cell phone to the computer through a cable wire and heard the voice recordings, perused the chat messages and call list in the cell phone of the deceased. For the said occurrence mediators report is drafted by him and he mentioned the details of their observations in regard to the contents of M.O.1 cell phone, other aspects in mediators report. The contents of the voice recordings, chat messages are in the nature of assassinating the character of the deceased by the A.1 and A.2. Ex.P.7 is the mediators report dt:10-09-2021 at 2 p.m., he, L.W.13 and others were signed on Ex.P.3, Ex.P.7 mediators report.
33. The P.W.7 further said that on 13-09-2021 at about 11 a.m., himself and
L.W.13 along with I Town L&O police, Kakinada on credible information visited the house of A.1 and there police found A.1, A.2 and arrested them. The A.1 and 13
A.2 voluntarily confessed about committing of offence and for the said occurrence, he prepared another mediators report. Police seized the cell phones of A.1, A.2 from their possession which were used for commission of offence. Ex.P.8 is the mediators report dt:13-09-2021 at 11-30 a.m. M.O.3 is the Realme cell phone of
A.1, the M.O.4 is the Vivo cell phone of A.2.
34.Further prosecution testified PW8-Dr.P.Uma Maheswararao Professor,
RMC, Kakinada and he stated that on 20-07-2021 he received requisition from
SHO, I Town L&O P.S., Kakinada for conducting PM examination upon the dead body of the deceased Pemmadi Devi and that he conducted PM examination on the dead body of the deceased and send the viscera of the deceased for examination and issued Ex.P.9 preliminary report. After receipt of Ex.P.10 RFSL report he gave
Ex.P.11 final report wherein he opined that the cause of the death of the deceased P.
Devi was due to consumption of ‘Chlorpyriphos’ insecticide poison.
35.Further prosecution testified PW9-B.Vinay Pratap the then SI of Police, I
Town L&O PS, Kakinada and he said that on 18-07-2021 on receipt of MLC intimation from GGH, Kakinada, the LW 15 Ch.Narasimharao, ASI 810 of their police station visited the GGH, Kakinada secured the presence of deceased P. Devi, recorded her statement. He further said that he can identify the signature and handwriting of LW15. Ex.P12 is the MLC intimation received from GGH,
Kakinada by LW15. Ex.P13 is the statement of deceased P. Devi while undergoing treatment, the deceased P. Devi died at GGH, Kakinada on 20-07-2021.
36. The P.W.9 further said that basing on Ex.P13 statement, the LW15 registered a case in Crime No.147/2021 of I Town L & O PS under section 174 Cr.PC.
Thereon he secured the presence of PW1 at the police station and recorded his statement. Thereafter he visited the scene of offence situated at the house of PW1, deceased P. Devi at Maridammapeta, Jagannadhapuram of Kakinada along with mediators PW6, LW10 and LW11 Kolli Siva observed the scene and prepared scene observation report. He also prepared rough sketch of the scene and got photographed the scene of offence. He also seized MO.2 bottle from the scene of offence under the cover of mediators report. Ex.P14 is the FIR in Cr.No.147/2021,
Ex.P15 is the rough sketch of the scene were marked. There he secured the 14 presence of PW2 O.Satyavathi, LW3 B.Kamaraju examined them and recorded their statements.
37. The P.W.9 further said that thereafter the LW15 visited mortuary GGH,
Kakinada and there he conducted inquest over the dead body of the deceased P.
Devi in the presence of same mediators, blood relatives of the deceased. There he secured the presence of PW3, LW5 Chekka Srinu, PW4 Chekka Veerababu and
LW7 A. Ramana examined them and recorded their statements. Thereafter the dead body of the deceased shifted to mortuary, GGH, Kakinada and got conducted PM examination over the dead body of the deceased through PW8 and thereon he handed over the dead body of the deceased to the PW1, his relatives.
38. The P.W.9 further said that on 28-07-2021, the LW15 received PM examination report of the deceased from PW8 and he also sent preserved visera to the RFSL, Vijayawada for examination and for report. Further investigation in this case took up by him and he had verified investigation of LW15, found it on correct lines. On 09-09-2021, while he was present in the police station, he received further police report along with MO.1 smart phone, Ex.P3 compact disc, six printed sheets from PW3. Basing on the above report, documents, MO.1 cell phone, he had altered the section of Law from section 174 Cr.P.C to section 306 r/w 34 of IPC and submitted altered memo to all the concerned and the original altered memo to the court. Ex.P16 is the altered memo dt.09-09-2021 is marked.
There he examined PW3 and recorded her statement.
39. The P.W.9 further said that on 10-09-2021, he visited the scene of offence observed the same, he secured the presence of PW1, PW2, LW3 P. Kamaraju, LW5
Ch. Srinu, PW4, LW7 A. Ramana and PW5 examined them and recorded their statements. Thereafter he secured PW7, LW13 G. Siva Surya Lakshmi to the police station, in their presence he examined MO1, Ex.P3 and for the said occurrence mediators report were drafted under Ex.P7. He had opened the MO1 cell phone with the pass word i.e, 686868 given by PW5 and gone through the messages, voice call record received from A.1 with mobile No.9912112486 (jio sim) and they are similar to information present in Ex.P3 compact disc, printed documents.
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Further the A2 used the mobile number i.e., Jio sim number 6300503740, the
deceased used Jio sim number 6305710298.
40. The P.W.9 further said that on 13-09-2021, on credible information he secured the presence of PW7, LW13 G.Siva Surya lakshmi, proceed to the house of the accused A1 bearing house D.No.48-3-18, Kamalavari street, Golilapeta,
Jagannadhapuram, Kakinada and there they found A1, A2. There the accused A1,
A2 confessed about the committing of the offence and the same is reduced into writing under Ex.P8 mediators report. He also seized the cell phones of A1, A2 under the cover of same mediators report. The MO3, MO4 are the mobile phones of the A1, A2 respectively. Thereafter he sent the A1, A2 to Judicial remand by following due procedure and got remanded them. Thereafter he send the mobile phones of the deceased, A1, A2 to nodal officer, Telecom department, Kakinada and they confirmed that the MO1 cell phone used by the deceased P. Devi, MO3 cell phone used by A1, MO4 cell phone used by A2.
41.The P.W.9 further said that on 28-03-2022, he received final opinion from
RFSL, Vijayawada and basing on the said report the PW8 opined that the death of the deceased P. Devi occurred due to consumption of chlorpyriphos an insecticide poison. After completion of investigation in all respects, he filed charge sheet in this case against A1, A2 for the offence punishable under section 306 r/w 34 of
IPC. The Ex.P17 is the death intimation of the deceased P. Devi received from
GGH, Kakinada on 20-07-2021 by LW15-ASI 810.
42.During arguments the learned Addl. PP argued that the evidence of prosecution witnesses P.Ws.1 to 9 coupled with Exs.P-1 to P-17, MO.1 to MO.4 are sufficiently established the guilt of the accused A1, A2 in all material aspects for the offence with which the accused are charged beyond reasonable doubt and prays the court to convict the accused according to law. On the other hand, the learned counsel for the accused A1, A2 argued that the evidence of P.Ws.1 to 9 coupled with Exs.P-1 to P-17, MO.1 to MO.4 are not at all sufficient to convict the accused, and there were several improvements, contradictions and omissions in the evidence of material witnesses and that all the prime material witnesses except 16 official witnesses are interested witnesses to the prosecution case. Therefore, they sought for acquittal of the accused A.1, A.2 in this case.
Before going further, it is pertinent to extract the text of Sec.306 of IPC and
Sec.107 of IPC, which runs as under:
Section 306 of the Indian Penal Code:
Abatement to suicide: "If any person commits suicide, whoever abets the commission of such suicide, shall be punishable with such imprisonment of either description of a term which may extend to 10 years, and shall also be liable to fine".
The IPC also prescribes a separate chapter on abatement and states who is an abettor in Section 108 of the IPC.
Section 107 of the Indian Penal Code:
Abatement of a thing—A person abets the doing of a thing, who—
First — Instigates any person to do that thing; or
Secondly —Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or
Thirdly — Intentionally aids, by any act or illegal omission, the doing of that thing.
Explanation 1.—A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to dis¬close, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.
Explanation 2.—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.
A person abets the commission of act when:
1. He/ She instigates any person to do a thing;
2. He/ She engages with one or more persons in any conspiracy for the doing of that thing or if an act or illegal act takes place in pursuance of the conspiracy; and
3. He/ She intentionally aids in doing that thing by any act or illegal omission.
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Thus, an individual who was not involved in the actual act ('actus reus') of the commission of the offence but had the mens rea and was involved (by instigating, engaging and intentionally aiding) is punishable under the Indian law for abatement.
From the above reading of the Section, three main essentials need to be fulfilled to hold an individual guilty of abetment to suicide under Section 306 of the Indian Penal Code. These three essentials are as follows:
1. Commission of suicide: The deceased should have committed suicide, i.e.
should have ended his/her own life (and not murdered by any other individual).
The commission of suicide should be fulfilled to hold the accused guilty, as only an unfulfilled attempt to commit suicide is not punishable under this Section.
2. Instigation or abetment of such suicide: The accused should have abetted the deceased victim to commit suicide.
3. Direct Involvement: The alleged involvement of the accused in the suicide of the deceased victim should be direct.
For a better understanding of the concept, we can go through the following examples::
Example1: Person A says, "you deserve to die and go" to Person B in anger, and afterwards, B hangs herself to death; in such a case, A cannot be charged with abatement to suicide. The reason is that A did not intend to instigate B to commit suicide and merely uttered the words in a fit of anger. In such a case, the court would look into Person A's general behaviour towards B and determine the intention.
Example 2: Person X influences Person Y to kill himself or herself by consuming pesticide poison, and under the influences, Person Y consumes it; then, in such circumstances, Person X would be liable as an abettor under Section 306 of the
IPC.
Legally, whether a death is a suicide or not is a determination of a fact, which means evidence has to be evaluated to declare that death is a suicide. In common parlance, the word suicide is liberally attributed to every case of self- 18 destruction, but suicide is never presumed. A determination of suicide is made when the deceased person is understood to have known the probable consequence of what the self-harm is about to do to the person and yet, does so intentionally.
Once such a determination is made, then the intention of the person accused of abatement of suicide is looked into. To determine whether the accused has abetted the suicide, we need to see two primary ingredients of the crime of abatement of suicide. The first ingredient is a suicidal death. The second ingredient is the intention of the accused to abet such suicide. Further, to hold a person guilty of abatement to commit suicide under the said provision, there has to be a clear mens rea on his part to instigate another to commit suicide. The Section cover abatement by aid, instigation and conspiracy only, but there are instances where the actions of the person do not strictly fall in these three categories but pressurize a person to commit suicide.
In the light of the above discussion, further to know the scope and ambit of section 306 of the Indian Penal Code, we need to go through the judgments of our Hon'ble
Apex court and Hon'ble High courts, which are mentioned here under:
In Ramesh Kumar v. State of Chhattisgarh AIR 2001 SC 3837 : (2001) 9 SCC 618: 'instigation' has been explained by the Hon'ble Apex court as under 20.
Instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of instigation, though, it is not necessary that actual words must be used to that effect, or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case instigation may have been inferred. A word uttered in a fit of anger or emotion without intending the consequences actually to follow cannot be said to be instigation.
In Randhir Singh and Another v. State of Punjab AIR 2004 SC 5097 : (2004) 13 SCC 129, the Hon'ble Supreme Court observed that- Abetment involves a 19 mental process of instigating a person or intentionally aiding that person in doing a thing. In the case of conspiracy also, it would involve that mental process of entering into a conspiracy for the doing of that thing. The more active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of an offence under Section 306
IPC.
The Hon'ble Supreme Court, in the case of S.S. Chheena V/s Vijay Kumar
Mahajan and another reported in (2010) 12 SCC 190, in para 25, observed that- the abetment involves the mental process of instigating a person or intentionally aiding a person in doing of a thing. A conviction cannot be sustained without a positive act on the part of the accused to instigate or aid in committing suicide. The intention of the legislature and the ratio of the cases decided by this court is clear:
to convict a person under Section 306 IPC, there must be a clear mens rea to commit the offence. It also requires an active or direct act which led the deceased to commit suicide, seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide.
The Hon'ble Supreme Court in the case of Amalendu Pal @ Jhantu Vs. State of
West Bengal, reported in AIR 2010 SC 512, after considering various earlier judgments on this issue, observed in para 15 & 16 as under: "15. Thus, this court has consistently taken the view that before holding an accused guilty of an offence under section 306, Indian Penal Code, the court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide, there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without their being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, a conviction in terms of section 306, Indian Penal Code is not sustainable." 20
The Hon'ble Court further held that- In order to bring a case within the purview of section 306 of the Indian Penal Code, there must be a case of suicide, and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing a certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under section 306,
Indian Penal Code."
In Gangula Mohan Reddy v. State of AP MANU/SC/0001/2010: AIR 2010 SC 327 : (2010) 1 SCC 750, it was held that to attract section 306 IPC, there must be clear 'mens rea' to commit the offence.
In M. Mohan v. State by D.S.P., Karaikudi (supra) CRIMINAL APPEAL NO.
611 OF 2011(Arising out of SLP (Crl.) No.2550/2010) decided on 1 March
2011, the Hon'ble Supreme Court observed that- Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing.
A conviction cannot be sustained without the accused's positive act to instigate or aid in committing suicide.
43.In the light of the above judgments of the Hon'ble high court, Hon'ble Apex court, when the provisions under Sec.306 of IPC are read with Sec.107 of IPC are considered, it would be evident that the prosecution must prove some overt act of the accused or omission of an act, which had abetted the deceased in committing suicide. Further, when the prosecution seeks conviction of the accused for an offence under Section 306 of IPC, it is obligatory on the part of the prosecution to prove that the death of the deceased was a suicidal death and that the accused had committed such an act, which falls within the ambit of Section 107 of IPC to draw an inference that such act(s) of the accused had abetted the deceased in committing suicide.
44.Therefore, keeping in view the above aspects, this court has to examine the prosecution's evidence to find out whether it could prove any act or omission of the 21 accused which might have forced deceased P. Devi in committing suicide. In the present case, to prove the aspect of abetment of suicide upon the deceased by the accused A.1, A.2, the prosecution cited sixteen witnesses, and among them, nine witnesses were examined, and the prosecution gave up the evidence of the remaining seven witnesses.
45.Therefore to prove the above-said aspects, the prosecution firstly examined
PW1 who is husband of deceased P. Devi has said that this incident took place on 18-07-2021 and on the said day at about 10.30 am some altercation took place in between himself, his wife and he requested his wife to shift to their own house as he is not able to pay the rent due to non-availability of sufficient carpentry work to which his wife not accepted as their own house is very small and suggested to shift another rented house. Thereafter at about 12.30 noon, he came back to their house and found his wife in unconscious condition in the house. Then he sprinkled water upon the face of his wife and upon question she said that she had consumed poison which is used for controlling the pest and again she became unconscious.
Immediately, he shifted her in an auto to the GGH, Kakinada for treatment. There doctors treated her and while undergoing treatment she died on 20-07-2021.
46.P.W.1 further said that on 06-09-2021 while they were vacating the rented house, the LW8 Jyothi found the oppo company smart phone belongs to his wife in the iron shelf in between the clothes. Thereon the LW8 S. Jyothi opened the cell phone and found call list, voice messages, chat messages and the same are shown that the said conversations took place between A1, A2 and his deceased wife and they are taken place three days prior to consumption of poison by his deceased wife. In the said conversation the A1, A2 used filthy language against his wife and they assassinated character of his wife and filthy language used by A1, A2 are in voice messages, chat messages and that they handed over the said smart phone of his deceased wife to the I Town L & O PS, Kakinada along with report of P.W4.
After noticing all the conversations above, they came to conclusion that due to harassment, character assassination of the deceased by A1, A2, she consumed pest poison and thereafter died. Further the PW2 O.Satyavathi who is maternal aunt of deceased P. Devi, the PW3-Chekka Nookaratnam who is mother of deceased P.
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Devi and the PW4-Chekka Veerababu who is brother of the deceased P. Devi are also deposed in the same lines as that of P.W1.
47.Further the PW5-Sandadi Jyothi who is younger sister of the deceased P.
Devi said that after completion of all ceremonies of deceased at their parents’ house on 06-09-2021 she, PW1 to PW3 went to the rented house of PW1, deceased to clean and vacate the same. While doing so when she is set righting the clothes of the deceased, she found MO1 cell phone in between the clothes of the deceased in iron shelf. Then she opened the said cell phone and found voice recordings, whatsapp messages and call records. On observing the voice recordings dt. 14-7- 2021 in between 1-30 pm to 1.40 pm, the conference call took place in between the deceased and both the accused. In the said conference call at first the deceased questioned the A1 stating that “Naku Mugguru Maridigarulu vunnaru, nenu avarito padukunnano nuvvu cheppali” to which the A1 stated that “ Adinakuamitelusu neke teligali avaridaggara padukunnavo”. Then the deceased asked A2 who is in conference call stating that “angi chusava satish ela mataladutunnado” to which the
A2 stated that “Nakuemitelusu me iddarigodavallo nannu lagavaddu”. Thereafter the deceased kept her phone on hold and on that presuming that the deceased is not in conference call, the A1 said with A2 stating that “prativratala mataladuthundi neeto padukunnattu oppukovachu kadara”. Then the A2 stated with A1 stating that “Nakukanaka sanka ekkindante nenu devini podichivesi jailku vellipotanu”. The
P.W.5 further said that she also noticed the A1 is having whatsapp chat with the deceased on 15-7-2021 from 1.40 pm onwards stating that “oppukovachukada maridigarito pandukunnavani, todameedi cheyyavesi ruddite padukuntava maridigarito” and also in the same way the A1 had also send several other messages with filthy language and they are having in the MO1 cell phone. The
P.W.5 further said that on observing the above said voice, other messages, her mother PW3 gave report at I Town L & O PS, Kakinada and also handed over
MO1 cell phone for necessary action. After gone through the contents of MO1 cell phone, they had opined that the deceased died by consuming pest poison due to harassment made by A1, A2 as stated above and died thereafter.
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48.Further, during cross-examination, the P.W1 admitted that he stated before the police when they examined initially stating that frequent altercations took place between himself and his deceased wife in connection with shifting from rented house and Ex.P1 report also submitted to the police stating his wife is consumed pest poison due to altercations took place between himself and his wife in regard to shifting from rented house. He further admitted that three days after noticing the cell phone, the LW8 gone through the contents and explained the same to me and after that LW8, his mother in law went to cell phone repair shop and downloaded the contents into a CD. He further stated that he do not know whether his mother in law and others are demanded money from A1, A2 at the police station.
49.Further, during cross-examination, the PW2 stated that she did not stated
before the police as in Ex.D1, ExD2 and contrary to that the P.W9 deposed that the
PW2 stated before him as in Ex.D1, ExD2. Further, during cross-examination, the
PW3 admitted that she got it mentioned in Ex.P2 report stating that her son in law and deceased Devi are residing rented house in separate street and the PW1 is doing carpentry work and that in connection shifting of the house from there, altercation took place in between the deceased, PW1 and in that connection the deceased mentally upset and thereby she consumed pest poison on 18-07-2021.
She also further admitted that after noticing the contents in MO1 cell phone she,
LW8 Jyothi went to cell phone repair shop and downloaded the said contents into a
CD and both the MO1 cell phone and CD handed over to the police.
50.Further, during cross-examination, the PW4 admitted that he had stated
before the police in his statement dt.20-07-2021 stating that on the said day of
incident some altercation took place in between PW1 and deceased in connection with shifting from the rented house and he went away to outside and therefore the deceased vexed with her life and with an intention to die consumed pest poison.
He also admitted that he was not present when A1’s wife came to the house of the
PW1 and when she altercated with PW1, deceased stating that the deceased is talking with her husband in phone.
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51.Further, during cross-examination, the PW5 admitted that she is the habit of using the cell phone of the deceased and that after the death of the deceased, as she know’s the pass word of the cell phone (MO.1) she is able to open the cell phone and that on 06-09-2021 itself initially, she had gone through the contents of the
MO1 cell phone and that on 07-09-2021 also she had observed the contents of
MO.1 cell phone. She also admitted that she went to the cell phone repair shop and got the Ex.P3 CD along with printed sheets of the messages and thereafter handed over to the police and in Ex.P3 printed messages, the names of the accused A1, A2 not disclosed. She also admitted that she is not in the habit of talking with A1, A2 in phone and she heard the voice of A1, A2 in MO1 cell phone for the 1st time.
52.Further, during cross-examination, the PW7 who acted as one of the mediator’s admitted that their office is maintaining movement register and they need to enter in the said register about the reason when they move outside during working hours and that their office movement register does not disclose about acting as mediators in the present case. He further admitted that the identity slips affixed to MO.3, MO.4 cells phones does not contain his signature and that the SI of Police, I Town PS narrated to them about the case particulars and also informed that the mother of the deceased handed over M.O1 cell phone to the police.
53.Further, during cross-examination, the PW9 who is investigating officer admitted that subsequent to 20-07-2021 also the deceased mobile phone i.e, MO1 is in working condition. He further admitted that before handover the MO1 cell phone of the deceased at their police station, the PW3, her family members approached the technician and got Ex.P3 compact disc, printed papers from it and presented to him along with Ex.P2 report of PW3 and that he did not obtained any certificate under section 65 B of Indian evidence Act from the technician to make the compact disc, other printed documents having information of M.O1 and also he did not examined the said technician and recorded his statement and that he did not take steps to send for the voice record of A1 to compare with the voice recording present in MO1 cell phone. He also admitted that he did not examined the voice recording present in M.O1 cell phone in the presence of PW3, PW5 who are the family members of the deceased and that the Ex.P8 mediators report does not 25 disclose the pass word of the M.O1 cell phone and the same is disclosed by PW5 to them. He also admitted that prior to 06-09-2021, their investigation discloses that due to the disputes in between the deceased P. Devi and her husband PW1, the deceased upset with the acts of her husband and committed suicide. He further admitted that in Ex.P13 statement, the deceased nowhere stated that the A1, A2 anywhere responsible for the incident and that the deceased also did not stated in
Ex.P13 statement stating that the voice recording and messages with A1, A2 are present in M.O1 cell phone and that he did not enquired the other messages present in MO.1 cell phone. He also admitted that the PW2 stated before him as in Ex.D1,
Ex.D2. He also admitted that during the statements recorded by LW15 ASI 810, during inquest of the deceased also, the witnesses does not give any information stating that they are suspecting the A1, A2 for committing suicide by the deceased.
54.The above evidence of P.W1 to P.W5, their admissions during cross examination clearly goes to show that they did not know personally what are all happened between the deceased and the accused A1, A2 prior to the incident before they found the contents in MO1 cell phone of the deceased. Further, the P.W2 to
P.W5 also do not know personally about the disputes between the deceased and
P.W1 in regard to shifting of the house and they all personally does not know what are the reasons for the death of the deceased. Further, whatever initially deposed by the PW2 to P.W5 in regard the reason for the cause of death of the deceased was came to know only through PW1. The further version of P.W1 to P.W5 about the cause of death of the deceased P. Devi was come to light only after the said MO.1 cell phone traced out by the P.W5 in the rented house of the deceased.
Furthermore, immediately after the incident though statement of the deceased is recorded under Ex.P13 by the investigating officer, admittedly there is no whisper in the said statement against the accused A1, A2 and also about presence of voice recording, chat messages in the MO.1 cell phone. If really the deceased suffered with any mental agony with the acts of the A1, A2, certainly she might have revealed the same before the police in Ex.P13 statement. Therefore the evidence of
PW1 to P.W5 is in no way helpful to know whether the accused A1, A2 abetted the deceased in committing the suicide as alleged by the prosecution.
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55.Further the evidence of PW6-Syed Sahul Ameer who acted as one of the mediator at the time scene observation, seizer MO.2 bottle at the scene of offence and his presence at the time of inquest upon the dead body of the deceased and that the evidence of PW7-K.Lova Murthy who is also acted another mediator present at the time of examination of MO.1 cell phone contents, his presence at the time of arrest of the accused A1, A2 is not much disputed by the learned defence counsel except the confession said to have been given by the accused A1, A2 before police.
When the death of the deceased is not disputed, the subsequent procedures certainly took place. Further the evidence of P.W8 medical officer is also not disputed by the learned defence counsel in any manner. The evidence of the investigation officer is not inspiring the confidence of this court and he did make any effort to find out the truthfulness of the contents in MO.1 cell phone and he primarily relied on the further statements of prosecution witnesses and confession statement of the accused A1, A2 given at the time of their arrest.
Regarding appreciation of material discrepancies in the evidence of the prosecution witnesses, this court relied on the following decisions: Relating to aspect instigation etc., aspects the Hon'ble Supreme Court of India in CRIMINAL
APPEAL NO.1589 of 2012(Arising out of SLP (Crl.) No. 2027 of 2012) in
between Praveen Pradhan vs State Of Uttranchal & Anr on 4 October 2012
held that-"Instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of "instigation", though it is not necessary that actual words must be used to that effect or what constitutes "instigation" must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. Where the accused had, by his acts or omission or by a continued course of conduct, created such circumstances that the deceased was left with no other option except to commit suicide, in which case, an "instigation" may have to be inferred. A word uttered in a fit of anger or emotion without intending the consequences to follow cannot be said to be instigation.
In another decision, Sanju Sanjay Singh Sengar vs State of Madhya
Pradesh reported in (2002) 5 SCC 371, the facts were that a quarrel occurred 27 between the accused and the deceased person in which the accused told the deceased to go and die. Subsequently, the deceased was found dead. The Supreme
Court has held that the words 'go and die' itself do not constitute the ingredients of instigation and also held that the suicide note holding the accused responsible was not sufficient to hold the charge against the accused person.
56.From the above decisions of the Hon'ble courts, it can be said that this particular Section 306 of IPC is quite sensitive and has to be used responsibly.
Sometimes the victim might take the decision to commit suicide unaccompanied by any act or instigation. There must be a clear intention to commit the offence of abatement for charging a person under Section 306 of IPC. Further, there must also be a direct act which induced the deceased person to commit suicide. Instigation to commit suicide is inferred from a series of acts on the part of the accused that led to such circumstances where the deceased had no other option left with them other than to commit suicide. These series of acts can include the use of force, words, conduct, willful omission or deeds or even silence of such accused to irritate or annoy the victim to such an extent that it leads her to take steps to end their life.
Further, there must be a live or proximate link between the act of abatement and the actual commission of suicide. The element of intention or aiding cannot be attributed to the accused if there is no such link between the act of abetment and the suicide.
57.In the light of the above decisions of the Hon'ble court, if we analyze the facts in the present case, circumstances elicited in this case show that there is no direct nexus between conference phone call between the A1,A2 and deceased, other chat messages said to have been sent by A1 to the mobile phone of the deceased and committing of the suicide by the deceased and that as per prosecution version the said voice conversation took place on 14-07-2021, the chat conversation took place on 15-07-2021 and whereas the deceased committed suicide on 18-07-2021 which is a painful event for all. Therefore there is a clear gap of three days. Further, In the said circumstances though the death of the deceased is a suicidal death, to hold the accused A1, A2 guilty of abatement to committing suicide by the deceased under section 306 of IPC, there has to be a 28 clear mens rea on the part of the accused to abet the deceased to commit suicide but, that was lacking in the present case on hand.
58.Further, concerning MO1, cell phone the learned Addl. Public Prosecutor contended that the MO.1 contains the conversation of deceased with A1, A2 wherein the accused A1, A2 assassinated the character of deceased and further the accused A1 done message conversation through whatsapp chat with the deceased and during that time he used abusive language against the deceased P. Devi. The learned Addl. Public Prosecutor further contended that due the said acts of the accused A1, A2 the deceased P. Devi committed suicide by consuming the pest poison. Further the prosecution got marked Ex.P3 CD along with six printed sheets of the contents of M.O1 were got marked.
Further, under the Indian Evidence Act, 1872, there are two types of evidence: oral and documentary. Under section 3 of the Act, "Evidence" means and includes- (1) all statements the court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry; such statements are called oral evidence.
(2) all documents including electronic records produced for the inspection of the court; such documents are called documentary evidence
Therefore, all the statements made by witnesses are classified as 'oral evidence' and all the documents that are produced before the court are 'documentary evidence'.
The term 'electronic record' is not defined under the Indian Evidence Act.
However, under section 2(t) of the IT Act, 2000, 'electronic record' is defined as data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche;
59.In the light of the above definition, a phone audio recording falls within the ambit of an electronic record. Thus the phone audio recording is admissible as evidence in Courts under the Indian Evidence Act, 1872, provided it is primary evidence and, if it is secondary, subject to section 65B of the Indian Evidence Act, 1872. Further, it is also subject to certain conditions prescribed by the Courts in various precedents. Therefore in the present case, the extent of admitting the MO.1 29 cell phone into the evidence cannot be disputed as the prosecution produced the
Original Cell phone itself along with its CD, copies of information made therein.
When coming to the genuity and proof of contents is concerned, this court relies on the following decisions:
A decision was reported in 1973 AIR 157, 1973 SCR (2) 417 between RM
Malkani Vs. State of Maharastra, the Hon'ble Apex court, laid down the following conditions to allow a tape-recorded conversation to be admissible as evidence before a court of law.
-The conversation recorded on tape must be relevant to the matter in issue.
- The voice recorded must be identified.
-The accuracy of the tape-recorded conversation is proved by eliminating the possibility of erasing the tape -recorder. The tape recorded conversation is, therefore, a relevant fact under section 8 of the Evidence Act and is admissible under section 7 of the Evidence Act".
In another decision reported in 1986 AIR, 3 1985 SCR Supl. (2) 399 in between
Ram Singh V. Col. Ram Singh, the Hon'ble Apex court held that- the evidence recorded on a tape Recorder or other mechanical process is in favour of the admissibility of the statements subject to certain safeguards such as; -The speaker's voice must be duly identified by the maker of the record or by others who recognize his voice. In other words, it manifestly follows as a logical result that the first condition for the admissibility of such a statement is to identify the speaker's voice. Where the voice has been denied by the maker, it will require very strict proof to determine whether or not it was really the voice of the speaker.
-The accuracy of the tape-recorded statement has to be proved by the maker of the record by satisfactory evidence-direct or circumstantial.
-Every possibility of tampering with or erasure of a part of a tape-recorded statement must be ruled out otherwise, it may render the said statement out of context and, therefore, inadmissible.
- The statement must be relevant according to the rules of the Evidence Act.
-The recorded cassette must be carefully sealed and kept in safe or official custody.
30 - The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances.
Further, in another decision in CIVIL APPEAL NOS.2795-2796 OF 2011
[Arising out of SLP [C] Nos.18211-18212 of 2010] in between K. Velusamy Vs.
N. Palanisamy decided on 30 March 2011, the Hon'ble Supreme Court, in this case, considered the telephonic conversation recording and concluded that a disc containing a recording of telephonic conversation could be a valid evidence according to Section 3 of the Evidence Act and Section 2(t) of the IT Act. The
Supreme Court also observed that electronically recorded conversation is admissible in evidence if the discussion is relevant to the matter in issue and the voice is identified, and the accuracy of the recorded conversation is proved by eliminating the possibility of erasure, addition or manipulation.
In a decision reported in (1967) 3 SCR 720 Yusufalli Esmail Nagree Vs. State of
Maharashtra, this Hon'ble Apex Court observed that- since the tape records are prone to tampering, the time, place and accuracy of the recording must be proved by a competent witness. It is necessary that such evidence must be received with caution. The court must be satisfied, beyond a reasonable doubt, that the record has not been tampered with.
60.In the light above observations in the decisions, discussion if we analyze the present case facts, MO.1 cell phone coupled with Ex.P3 CD along with six printed sheets of the contents of M.O1 this court made the following observations:
1. There is no convincing evidence in the record and no documentary proof filed to show that the deceased P. Devi used the MO.1 cell phone prior to her death.
2. Further, either the investigating officer did not choose to seize the MO1's cell phone to search for incriminating evidence. Further the family members of the deceased P. Devi also not searched for the cell phone of the deceased until the same is traced out after two months after death of the deceased is also create doubt.
31
3. Further, as per the evidence of PW5, who is the deceased's sister, she found the
MO.1 Cell phone in the iron shelf of the deceased in between the cloths when they are vacating the rented house of the deceased, P.W1 and the MO.1 saw the light more than 1 and half months after the incident.
4. Further, even though it is presumed that the PW5, other family members find out the voice recording, chat messages as above said in MO.1 cell phone of the deceased on 06-09-2021 immediately they were not hand over the same to the investigating officer and thereon the investigating officer also did not take any steps to the MO.1 cell phone for voice testing and to check whether the deceased received messages from A1’s cell phone.
5. Further admittedly the P.W5, others took the MO.1 cell phone to the cell repair shop through whom they got down loaded voice message in to a compact disc and got printed the chat messages upon papers but, the investigating officer did not choose to examine the said cell repair shop person.
6. Further on careful examination of contents of the MO1 cell phone, except the one voice recording, no other recordings were there.Further, the general observation of the contents of said MO1 cell phone shows that immediately after death of the deceased also the same was used, but the said fact supressed for the reasons known to them.The said circumstances indicate that the MO1 cell phone is not safeguarded intact, at least from the date they found the voice recording, chat messages in it.
7. Furthermore, immediately after the incident though statement of the deceased is recorded under Ex.P13, admittedly there is no whisper in the said statement against the accused A1, A2 and also about presence of voice recording, chat messages in the MO.1 cell phone.
61.In the light of the above decisions and observations above made by this court, the prosecution failed to be carefully sealed and kept the MO1 cell phone in safe or official custody as and when it was traced out and thereby failed to prove 32 the accuracy of the recorded conversation by eliminating the possibility of erasure, addition or manipulation. In the said circumstances, this court is not satisfied, beyond a reasonable doubt, in regard to the accuracy of the voice record, chat messages in the MO1 cell phone. Therefore if the above said portion of the evidence excluded from this case, from the remaining evidence on record, we cannot infer any incriminating material regarding abetment said to have been made by the accused A1, A2 against the deceased in committing suicide by her.
62.Further in regard to offence under section 509 of Indian penal code is concerned the prosecution has to prove that the acts of the accused against the deceased would attract the ingredients of the said offence. Section 509 of Indian penal code is reads as under. "S.509 of Indian Penal Code: Word, gesture or act
intended to insult the modesty of a woman.-- Whoever, intending to insult the
modesty of any woman, utters any word makes any sound or gesture, or
exhibits any object, intending that such word or sound shall be heard, or that
such gesture or object shall be seen, by such woman, or intrudes upon the
privacy of such woman, shall be punished with simple imprisonment for a
term which may extend to one year, or with fine, or with both."
63.A reading of the title of Section 509 IPC itself shows that the section deals with an offence involving word, gesture or act which are intended to insult modesty of a woman. The offence under the said section will be attracted if a person intending to insult the modesty of a woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen by such woman, or intrudes upon the privacy of such woman. In the present case in regard to section 509 of IPC concerned except the voice recording, chat messages in the MO.1 cell phone, there is no other cogent evidence to attract the ingredients of the offence under section 509 of IPC. In view of the above observations in regard to MO.1 cell phone, when the contents of the MO.1 cell phone not taken as reliable evidence in regard to accuracy of the recorded conversation by eliminating the possibility of erasure, addition or manipulation, the offence under Section 509 IPC is not attracted to the facts of the case. When there is nothing to make out the essential elements of the 33 offence under Section 509 IPC against the accused A-1, A-2, they are not liable for the offence under Section 509 IPC also.
64.Thus in the light of the above discussion, this court is of the view that there was no cogent evidence in the record connecting all the incidents that said have taken place between the accused and the deceased with the incident of commission of suicide. Therefore, this court is of the view that the prosecution had failed to prove their case beyond reasonable doubt against the accused A1, A2 for the offence punishable under section 306, 306 r/w 34, 509 of IPC under which the accused are prosecuted, and the accused A1, A2 are entitled to acquit in this case.
Further, a decision reported in (2013) 6 SCC 770 between Ankush Shivaji
Gaikwad –Vs- State of Maharashtra the Hon’ble Apex court held that- the power to award compensation under Section 357 of The Code of Criminal
Procedure was intended to reassure the victim that he or she is not forgotten in the
Criminal Justice System. The Hon'ble Supreme Court of India further held that it is the mandatory duty of the court to apply its mind to the question of compensation in every criminal case for awarding/refusing compensation. The Hon'ble Supreme
Court of India in a decision reported in 2015 (3) SCC 227 between Suresh and another -Vs- State of Haryana held the stages for application of Section 357 and
Section 357-A of The Code of Criminal Procedure, also the duty of the court to ascertain at every stage of criminal case to examine to award of interim compensation, at final hearing, obligation on the court to record a finding, whether case is fit for grant of compensation, who is entitled for compensation and how much.
65. Further Section 357 of The Code of Criminal Procedure provides payment of compensation from the Accused and Section 357-A of The Code of Criminal
Procedure provides compensation from the 'Victim Compensation Scheme'. On conviction, the court has a duty to examine the case at the first instance for compensation subject to the payment capacity of the Accused under Section 357 of
The Code of Criminal Procedure, and when the Accused has no means or has no sufficient means, or on acquittal or discharge from the case etc., the court can go 34 for Victim Compensation Scheme under Section 357-A of The Code of Criminal
Procedure to award the compensation amount.
66.In the present case, though the prime prosecution witnesses deposed their evidence contesting the case, the prosecution could not be able to prove its case for the reasons stated supra. Admittedly the deceased P. Devi is having two daughters now aged about 15 years, 13 years and they are school going children as per the evidence of P.W1 who is the husband of the deceased. In the facts and circumstances of this case, this court inclined to forward the copy of this judgment to the Hon'ble District Legal Services Authority, Rajamahendravaram, to examine to grant compensation to the victim’s family members under section 357-A (3)
Cr.P.C (under the Victim Compensation Schemes) by taking into consideration the factors relating to the loss or injury suffered by the family members of the deceased.
67. In the result, the accused A1, A2 are not found guilty of the offences punishable under Section 306, 306 r/w 34 respectively and Section 509 of Indian
Penal Code, and they are acquitted Under Section 232 of the Criminal Procedure
Code. The accused A1, A2 are set at liberty forthwith. The bail bonds and sureties of the accused A1, A2 shall be in force for a period of 6 months Under Section 437(A) of the Criminal Procedure Code. The case property MO.2 chlorpyriphos empty poison bottle and the unmarked non-valuable property, if any, shall be destroyed after the lapse of appeal time if no appeal is pending. The case property
M.O1, MO3 and M.O4 mobile phones shall be returned to the concerned after lapse of appeal time if no appeal is pending. If the concerned parties are not claimed, they are directed to dispose according to law after lapse of appeal time if no appeal is pending. The office is directed to transmit the entire case property to the committal court immediately for taking further steps.
The court, considering the material on record, recommends the Hon'ble
District Legal Services Authority, Rajamahendravaram, East Godavari District, to examine the case for compensation under Section 357-A of The Code of Criminal 35
Procedure under the Victim Compensation Schemes to the family members of the deceased Pemmadi. Devi.
Dictated to the Stenographer directly typed by her in computer, corrected and
pronounced by me in open court, this the 22 nd day of August, 2023.
SD/-Dr.N.Sreenivasa Rao
PRL.ASSISTANT SESSIONS JUDGE,
KAKINADA.
APPENDIX OF EVIDENCE.
WITNESSES EXAMINED.
FOR PROSECUTION: FOR DEFENCE: Nil.
- P.W.1: P.Vijay Bhaskar, S/o Suryanarayana, JK Puram, Kakinada.
P.W.2: O.Satyavathi, W/o Ramana, JK Puram, Kakinada.
P.W.3:Chekka Nookaratnam, W/o Srinu, JK Puram, Kakinada.
P.W.4:ChekkaVeerababu, W/o Srinu, JK Puram, Kakinada.
P.W.5: Sandadi Jyothi, W/o Krishna, Turangi, Kakinada.
P.W.6:Syed Sahul Ameer, S/o Adeel, JK Puram, Kakinada.
P.W.7:K.Lova Murthy, VRO, JK Puram, Kakinada.
P.W.8:Dr. P.Uma Maheswararao, Professor, RMC, Kakinada.
P.W.9:B.Vinay Pratap, SI of Police, I Town L&O PS, Kakinada.
EXHIBITS MARKED.
FOR PROSECUTION:
Ex.P.1/……………....: Report given by P.W.1 to the police.
Ex.P.2/-………………:Report given by P.W.3 to the police dt:09-09-2021.
Ex.P.3 /………………: Compact Disc along with six printed sheets.
Ex.P.4/…………….…:Scene observation report dt:20-07-2021.
Ex.P.5/………………:Inquest report dt:20-07-2021.
Ex.P.6/………………: Four positive photographs.
Ex.P.7/………………:Mediators report dt:10-09-2021 at 2 p.m.
Ex.P.8………………: Mediators report dt:13-09-2021 at 11-30 p.m.
Ex.P.9.........................: Post Mortem Report.
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Ex.P.10.......................: RFSL report.
Ex.P.11........................:Final opinion.
Ex.P.12.........................:MLC intimation.
Ex.P.13..........................:Statement of deceased.
Ex.P.14...........................:FIR dt:20-07-2021.
Ex.P.15...........................:Rough sketch of the scene.
Ex.P16............................:Alter memo dt:09-09-2021.
Ex.P.17............................:Death intimation of the deceased.
FOR DEFENCE:
Ex.D.1..............................: Marked portion of Sec.161 Cr.P.C statement of P.W.2.
Ex.D.2..............................:Marked portion of Sec.161 Cr.P.C statement of P.W.2.
M.Os. Marked:
M.O.1...............................: Smart Phone (Oppo company).
M.O.2...............................: Chlorpyriphos empty poison bottle.
M.O.3................................: Realme mobile of A.1.
M.O.4................................: Vivo Mobile of A.2.
SD/- Dr.N.Sreenivasa Rao
PASJ, KKD.