Telangana High Court
Paladi Mahesh, Hyd vs S.H.O., Saroornagar P.S. on 29 December, 2023
Author: K. Lakshman
Bench: K. Lakshman
HON'BLE SRI JUSTICE K. LAKSHMAN
AND
HON'BLE SMT. JUSTICE K. SUJANA
CRIMINAL APPEAL No.801 OF 2014
JUDGMENT:
(Per Hon'ble Sri Justice K. Lakshman) Heard Mr. M. Laxman Rao, learned counsel for the appellant - accused No.1 and Mr. T.V. Ramana Rao, learned Additional Public Prosecutor appearing on behalf of the respondent - State.
2. The appellant herein is Accused No.1 in S.C. No.346 of 2009 and he filed the present Criminal Appeal challenging the judgment dated 14.02.2014 passed by learned III Additional District and Sessions Judge, Ranga Reddy District in Sessions Case No.346 of 2009.
3. Vide the aforesaid judgment, trial Court found accused No.1 guilty of the offences under Sections - 302 and 201 of IPC and accordingly convicted and sentenced life imprisonment for the offence under Section - 302 of IPC and rigorous imprisonment for three (03) years for the offence under Section 201 of IPC. Accused No.2 is the mother of accused No.1 and she and accused No.1 were found not guilty of the offence punishable under Section - 498A of IPC. 2
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4. The case of the prosecution is as under:
i) Accused No.1 is the husband of Smt. P. Geetha (hereinafter called as 'the deceased') and their marriage was solemnized in the year 1996. They are blessed with two male children viz., Mr. Vinay Kumar and Mr. Karthi.
ii) At the time of marriage, the parents of the deceased gave cash of Rs.1,25,000/- and 10 tolas of gold ornaments. Dissatisfied with the said dowry, accused No.1 on the instigation of his mother, accused No.2, demanded the deceased and her parents to pay additional dowry.
iii) Accused No.1 used to suspect the fidelity of the deceased and disputes arose between them. Then, accused No.1 bore grudge on the deceased and decided to get rid of her and waiting for an opportunity.
iv) On a fateful day i.e., on the night of 08.08.2008 after having dinner, Mr. P. Vinay Kumar, elder son, was slept in the bed room, while the younger son, the deceased and accused No.1 slept in the front bed room. In the mid-night of 08/09.08.2008, accused No.1 woke up, shifted his younger son to the bed room, where the elder son was sleep and at about 0300 hours, accused No.1 picked up a pestle 3 KL,J & SKS,J Crl.A.No.801 of 2014 found in the corner of the house, assaulted and beat on the head of the deceased indiscriminately while she was in sleep which resulted her sustaining bleeding head injury and died on the spot.
v) Accused No.1 then placed the body in a gunny bag, washed the floor having blood stains with surf and again cleaned with clothes.
He also washed the blood stained pestle and clothes by applying soap. Accused No.1 also applied white-wash on the walls where blood was spotted. Later, he shifted the body into his Maruthi Car bearing registration No.AP 16H 2913 and dumped the body on the bank of Bairamalguda Tank and fled away. He also applied grease/oil on the rear seat where blood stains were found without giving scope to anybody to get suspicion. On the way, the vehicle went off road, then called the mechanic and shifted to Bharath Motors Garage and then fled away.
vi) On 10.08.2008 at about 1700 hours, accused No.1 made a call to PW.1 and informed that the deceased died in a road accident in the limits of Maheshwaram to deviate their attention and switched off his phone. Thus, accused No.1 committed the aforesaid offences.
vii) PW.1 suspected accused No.1 and lodged a complaint with Saroornagar Police Station. On receipt of the complaint lodged by 4 KL,J & SKS,J Crl.A.No.801 of 2014 PW.1, the Police registered a case in Crime No.951 of 2008 under Section 'woman missing' and took up investigation.
5. On completion of investigation, the police filed a charge sheet against both the accused for the offences punishable under Sections - 498A, 302 and 201 of IPC against accused No.1 and Section - 498A of IPC against accused No.2. Thereafter, the case was committed to the Court of Sessions which was taken on file vide S.C. No.346 of 2000 for the said offences.
6. The trial Court framed the charges under Sections - 498A, 302 and 201 of IPC against both the accused. Both the accused denied the charges and pleaded not guilty and prayed for trial.
7. During trial, the prosecution has examined as many as 11 witnesses, viz., PWs.1 to 11 and marked Exs.P1 to P13 documents and MOs.1 to 5 were exhibited. No oral evidence was let in on behalf of the accused, however Ex.D1 was marked.
8. After completion of trial and on appreciation of evidence, both oral and documentary, the trial Court found accused No.1 guilty of the aforesaid charges framed against him and accordingly convicted 5 KL,J & SKS,J Crl.A.No.801 of 2014 him of the aforesaid charges, while accused Nos.1 and 2 were found not guilty of the charges under Section - 498A of IPC.
9. Feeling aggrieved by the said conviction, accused No.1 preferred the present appeal.
10. Mr. M. Lakshman Rao, learned counsel for the appellant - accused No.1 contends as follows:
i) There is contradiction in the statement made by PW.6 under Section - 161 of Cr.P.C. and his deposition;
ii) PW.8 did not send MOs.1 to 5 for Forensic Science Laboratory. The said fact was admitted by PW.8 -
Investigating Officer during cross-examination. Even then, the prosecution filed FSL report (Ex.P12) through PW.9. There is no evidence to the effect that who sent MOs.1 to 5 to FSL. Even then, trial Court relied upon the same and convicted the appellant;
iii) There is also contradiction in the statement made by PW.4 before the Police under Section - 161 of Cr.P.C. and his deposition before the trial Court with regard to bringing the subject vehicle (MO.5) to the Shed. Though 6 KL,J & SKS,J Crl.A.No.801 of 2014 there was no seizure, the trial Court did not consider the said fact;
iv) There is contradiction with regard to the colour of MO.5 -
small cloth, and the same was not considered by the trial Court;
v) There is no corroboration of evidence of prosecution witnesses;
vi) There is no eye-witnesses to the incident;
vii) The trial Court recorded conviction basing on circumstantial evidence. The circumstantial evidence is not forming complete chain and the link is missing. Even then, the trial Court recorded conviction against accused No.1 without considering the said aspects;
viii) The Investigating Officer did not examine the tenants of accused No.1 and the deceased and also the brother, sister-in-law of the accused, who were also present in the said house;
ix) PW.3, minor son of accused No.1 and the deceased, did not speak about the offence. Even then, the trial Court 7 KL,J & SKS,J Crl.A.No.801 of 2014 relying on the last seen theory recorded conviction against the appellant herein;
x) There is contradiction with regard to the registration of FIR. As per the prosecution, the complaint was lodged on 10.08.2008 at 2200 hours, whereas in Ex.P10 - FIR, it is mentioned as 11.08.2008. Therefore, the said FIR is defective;
xi) The prosecution did not send MOs.1 to 5 to FSL for analysis either through PW.8 or PW.9 or Mr. C. Prabhakar Reddy, PC 571 of Saroornagar Police Station, through whom MOs were sent to FSL, Red Hills, Hyderabad. Thus, the trial Court erred in convicting the appellant; and
xii) PW.4 is the neighbor of PW.1 and, therefore, he is not an independent witness.
11. On the other hand, learned Additional Public Prosecutor would contend as follows:
i) PW.8 received the complaint Ex.P1 on 10.08.2008 and the same was registered on the same day at 10.00 P.M. which is evident from Ex.P1. In Ex.P1 - FIR, on the top, 8 KL,J & SKS,J Crl.A.No.801 of 2014 it is mentioned as 11/08/2008 due to inadvertence. It is only typographical mistake as admitted by PW.8 -
Investigating Officer. However, in column No.3 (b) of Ex.P10 - FIR, it is specifically mentioned the date as 10.08.2008 and time of receipt of Ex.P10 as 2200 hours. In Ex.P4 - crime detail form, the date is mentioned as 10.08.2008. Therefore, accused No.1 cannot take advantage of the same. Accused No.1 informed PW.1, brother of the deceased and brother-in-law of accused No.1, that on 10.08.2008 the deceased died due to accident and, therefore, switched of his phone. Thereafter, PW.1 got suspicion and, therefore, he along with his parents came to the scene of offence, observed that the Chappal of the deceased were there at the house of the deceased and accused No.1 and white wash on the walls etc. He got suspicion and lodged complaint to the police on 10.08.2008 itself at 2200 hours;
ii) In fact, MOs.1 to 5 were sent to FSL by PW.8 himself, but due to paucity of time between the incident and the deposition i.e., the incident is on the intervening night of 9 KL,J & SKS,J Crl.A.No.801 of 2014 08/09.08.2008 and the deposition was recorded on 06.06.2013 i.e., five (05) years later. However, accused No.1 did not object while marking Ex.P12 - FSL report through PW.9. In fact, accused No.1 did not cross- examine PW.9 at all. The said aspects were considered by the trial Court;
iii) Even minor contradictions in the statement made by PW.6 before the police recorded under Section - 161 of Cr.P.C. and his deposition before the trial Court cannot be considered due to paucity of time. However, the crime vehicle was marked as MO.5;
iv) PW.4 though resident of Afzalgunj, he came to Saroornagar to attend function and he has categorically admitted that he does not know PW.1 and, therefore, he is an independent witness. Admittedly, the deceased, wife of accused No.1, was in the house along with accused No.1, PW.3 and LW.6, their sons on the intervening night of 08/09.08.2008. Therefore, accused No.1 has knowledge about the same and, therefore, he has to explain the commission of offence in terms of Section - 10
KL,J & SKS,J Crl.A.No.801 of 2014 106 of the Indian Evidence Act, 1872, which accused No.1 failed to do;
v) PW.7 gave Ex.P9 - postmortem examination report, wherein he gave his opinion that the cause of death to the best of his knowledge and opinion is due to head injury and time since death is about two-three days prior to his PME. The same is also supported by Ex.P9;
vi) Accused No.1 suspected the fidelity of his deceased wife, who worked as Teacher for some time, hatched a plan to do away her life and, accordingly, taking advantage of the deceased sleeping on the intervening night of 08/09.08.2008, attacked on her with MO.1 - Pestle and committed murder brutally. Therefore, the prosecution proved the motive beyond reasonable doubt;
vii) Prosecution also proved destruction of evidence beyond reasonable doubt; and
viii) Considering the entire evidence, both oral and documentary, the trial Court recorded conviction against the appellant - accused No.1 herein. There is no error in it.
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12. In view of the aforesaid rival submissions, there is no dispute that the appellant - accused No.1 is the husband of the deceased. Their marriage was performed in the year 1996. They blessed with two-male children i.e., LW.5 and PW.3. According to the prosecution, on 08.08.2003 after having dinner, elder son of the appellant and deceased (LW.5) slept in the bed room, while PW.3, their younger son along with accused No.1 and the deceased slept in the front bed room. In the mid-night on 08/09.08.2008, accused No.1 woke up PW.3, shifted him to the bed room where their elder son was sleeping. The appellant herein picked up pestle found in the corner of the house, assaulted and hit on the head of the deceased indiscriminately while she was in sleep, which resulted bleeding injuries on the head of the deceased and she died on the spot. Thus, all of them i.e., the appellant herein, the deceased, PW.3 and LW.5 were in the same house on 08.08.2008. Accused No.1 informed his brother-in-law, PW.1, brother of the deceased on 10.08.2008 at about 5.00 P.M. over phone that the deceased met with an accident at Maheshwaram and disconnected the phone. Therefore, he got suspicion. PW.1, his parents and brother rushed to the house of 12 KL,J & SKS,J Crl.A.No.801 of 2014 accused No.1 and found the chappal of the deceased. They also found patches of white-wash on the walls of the bed room of the deceased.
13. Accused No.2 was present and informed that accused No.1 and the deceased went away from the house on 09.08.2008 in the morning time. The brother of accused No.1 and his wife were also there in the house along with accused No.1. They did not give any reply. They got suspicion and lodged a complaint with Police, Saroornagar. On receipt of Ex.P1 - complaint, the police registered a case in Crime No.951 of 2008 under the head 'woman missing' and entrusted the investigation to Mr. S. Narsimha, Sub-Inspector of Police, who visited the scene of offence and informed PW.8 that he is having suspicion. PW.8 immediately rushed to the scene of offence and examined Mrs. P. Rama Devi, co-sister of the deceased, both sons of the appellant and the deceased. The appellant was also present. PW.8 suspected the appellant and interrogated him and recorded his confession in the presence of two mediators i.e., PW.4 and Mr. Seetharam Arjun Kumar. The appellant - accused No.1 confessed commission of offence at 0300 hours on 09.08.2008. Accused No.1 led PW.8 to a lake near Bairamalguda, where he had thrown the body of the deceased. PW.8 saw a gunny bag in which they found body of 13 KL,J & SKS,J Crl.A.No.801 of 2014 the deceased. He prepared scene of offence panchanama in the presence of the mediators and shifted the body to Osmania General Hospital. Thereafter, the appellant led PW.8 to Bharath Motors Garage, Champapaet, where they have seized the crime vehicle in which accused No.1 shifted the dead body to Bairamalguda Lake. He has also recorded the statement of the owner of the said Bharath Motors. Then, he has altered section of law from woman missing to Sections - 498A, 302 and 201 IPC. The police arrested accused No.1 on 11.08.2008 and produced before the Magistrate concerned.
14. The aforesaid facts would reveal that the appellant herein informed PW.1, brother of the deceased that the deceased met with an accident at Maheshwaram and, thereafter he switched of his phone. The appellant herein did not make any effort to lodge a complaint to the police with regard to the alleged accident of the deceased at Maheshwaram. On the other hand, he has informed PW.1, brother of the deceased, over phone. He did not inform the said fact to the mother of the appellant who is accused No.2. Therefore, the conduct of the appellant is highly doubtful.
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15. There is no explanation from the appellant with regard to the alleged accident of his wife at Maheshwaram. He has not lodged complaint with police with regard to the said alleged accident. Admittedly, the appellant and the deceased and their children had their dinner on 08.08.2008 and slept in the house. There is no explanation, much less plausible explanation from the appellant with regard to the alleged accident of the deceased at Maheshwaram. Having knowledge about the said accident and the incident, it is the duty of the appellant to inform the same to the police concerned in terms of Section - 106 of the Evidence Act. In the present case, the appellant failed to discharge the said burden.
16. It is relevant to extract Section - 106 of the Evidence Act and the same is as under:
"106. Burden of proving fact especially within knowledge.--When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Illustrations
(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.15
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(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him."
17. PW.7, the doctor, gave his opinion stating that the cause of death is due to head injury and time since death is about two-three days prior to his PME. Ex.P9 is the PME report. Nothing was elicited from PW.7 during cross-examination. On the other hand, PW.7 during cross-examination categorically admitted that the injury was not possible by a simple fall on hard surface and it is not possible in accident as there would be other associated injuries in the accident. Thus, the cause of death was due to head injuries.
18. PW.3 is the minor son of the appellant and the deceased and he deposed that he was studying third class when his mother died. On the date of incident, his father, mother, junior paternal uncle and parental grandmother were in the house. On the next day of the incident, his father informed the police when police brought him to the house that he assaulted his mother with pestle and killed her. During cross-examination, he has admitted that he saw his mother on the night of 8th day of that month lastly. The appellant was not looking 16 KL,J & SKS,J Crl.A.No.801 of 2014 after them properly. He was assaulting. Therefore, PW.3 has last seen his mother and father in the said house on 08.08.2008.
19. PW.4 is the panch witness for the confession of the accused No.1, seizures and inquest. He is the resident of Ashok Bazar, Afzalgunj, Hyderabad, where PWs.1 and 2 reside. According to learned counsel for the appellant, he is not an independent witness and he is known to PWs.1 and 2. However, during cross-examination, PW.4 admitted that PW.2 is also resident of the same street, where he resides. He has no acquaintance with PW.2. He was in the house of his brother Mr. Yadagiri as there was marriage at P & T Colony, Saroornagar, and at that time the police called him. He does not know LW.9, another panch witness. Therefore, it cannot be said that he is not an independent witness. Just because he is also resident of Ashok Bazar, Afzalgunj, it cannot be said that he is known to PWs.1 and 2 and he is not an independent witness.
20. PW.6 is the Mechanic in Bharath Motors. He deposed that four (04) years back in the month of August, accused No.1 brought his Maruthi 800 Car bearing registration No.AP 16H 2919 to their shed. Then, he went to Karmanghat, where the car was parked. As the 17 KL,J & SKS,J Crl.A.No.801 of 2014 battery was down, he started the car with another battery and brought the car to the shed. They have informed accused No.1 that the battery has to be replaced. Accused No.1 went away to bring the amount for replacement of battery, but he did not turn up. Two (02) days thereafter, the police came and seized the car. The police informed him that the accused used the car to transport the dead body of his wife after killing her.
21. However, referring to the deposition of PW.6 and his statement recorded by the police under Section - 161 of Cr.P.C., wherein he stated that accused took Mr.Pratap Reddy, owner of the shed, to Karmanghat and his owner changed the battery and took the car to their shed. Therefore, according to learned counsel for the appellant, there is discrepancy with regard to getting the vehicle to the shed.
22. It is relevant to note that the incident is dated 08/09.08.2008, whereas the statement of PW.6 was recorded on 11.08.2008 by the Investigating Officer and his deposition was recorded on 19.12.2012 almost after four (04) years four (04) months. Therefore, minor variation with regard to the seizing of vehicle can be 18 KL,J & SKS,J Crl.A.No.801 of 2014 ignored. The appellant cannot take advantage of the said minor contradictions.
23. With regard to the contention of learned counsel for the appellant that PW.8 did not send MOs.1 to 8 to the FSL, during cross- examination, PW.8 admitted that he did not send MOs.1 to 5 to FSL. However, FSL report was marked through PW.9, successor of PW.8. It was marked as Ex.P12. There was no objection from the appellant while marking Ex.P12. There is no cross-examination on the same by the appellant. However, perusal of the said FSL report would reveal that the seized articles were sent to FSL through Mr. C. Prabhakar Reddy, PC 571 on 22.09.2008.
24. It is further contended by learned counsel for the appellant that PW.1 admitted that he filed a declaration given by accused No.1 and handed over the children to him in a civil case. Along with declaration, the accused also handed over the FDRs initially to the police and the police, in turn, handed over the same to PW.1. Accused No.1 handed over those FDRs at 11 A.M. The accused brought the said FDRs to the police station and handed over the same. He has admitted the said fact in the civil case. 19
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25. PW.3, minor son of the appellant and the deceased, during cross-examination, he has admitted that he came to know that his father deposited Rs.6.00 lakhs in the form of fixed deposit in his name.
26. It is relevant to note that PW.1 during cross-examination categorically admitted that he saw accused No.1 on 11.08.2008 morning time in police station.
27. As discussed above, the Investigating Officer arrested accused No.1 on 11.08.2008. In fact, the appellant was present at the scene of offence on 10.08.2008 when Investigating Officer (PW.8) visited the scene of offence. Therefore, it appears that there were some compromise talks between the appellant family and the parents etc., of the deceased keeping in view the welfare of the minor children, the appellant cannot take advantage of the same.
28. Perusal of the Ex.P12 - FSL report would reveal that blood was detected on item Nos.5 to 8. Origin of blood stains on item Nos.5, 6 and 8 is of human. However, blood is not detected on item Nos.1 to 4. Origin of blood stains on item No.7 could not be 20 KL,J & SKS,J Crl.A.No.801 of 2014 determined, while blood group of blood stains on item Nos.5, 6 and 8 could not also be determined.
29. The aforesaid facts would reveal that there is no eye- witness to the incident. The entire case rests on circumstantial evidence. Conviction can be recorded basing on circumstantial evidence if circumstances form complete chain. Prosecution has to prove the chain of all circumstances in commission of offence beyond reasonable doubt. The said principle was also laid down by the Hon'ble Supreme Court in Sharad Birdhichand Sarda v. State of Maharashtra 1; Prem Singh v. State (NCT of Delhi) 2; and Ravi Sharma v. State (Government of NCT of Delhi) 3. In the present case, prosecution has proved all the circumstances which formed complete chain and there is no missing of any link.
30. It is settled law that however grave the offence may be, accused cannot be convicted based on suspicion. In the present case, prosecution has proved the guilt of the accused beyond reasonable doubt.
1 . (1984) 4 SCC 116 2 . (2023) 3 SCC 372 3 . (2022) 8 SCC 536 21 KL,J & SKS,J Crl.A.No.801 of 2014
31. There should not be any missing link and the entire events shall form the chain. Considering the said aspects and also motive, the trial Court found that accused No.1 committed murder of his wife and thrown the dead body in Bairamalguda tank. Thus, accused No.1 was found guilty of the offences punishable under Sections - 302 and 201 IPC. There is no error in the said finding. The findings of the impugned judgment are on proper reasons and on consideration of entire evidence, both oral and documentary.
32. Defect in conducting investigation is no ground to acquit the accused, more particularly, where other circumstances are proved guilt of the accused beyond reasonable doubt.
33. In a matter like this, minor contradictions of the witnesses cannot be considered. As rightly contended by learned Additional Public Prosecutor that the incident was dated 09.08.2008 and most of the witnesses deposed in the years 2012 and 2013 i.e., after lapse of 4½ years. In the light of the same, accused No.1 cannot take advantage of minor contradictions and deviations of prosecution witnesses.
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34. In the light of the aforesaid discussion, the appellant failed to establish any ground to interfere with the impugned judgment. Thus, the appeal fails and the same is liable to be dismissed.
35. The present Criminal Appeal is accordingly dismissed confirming the conviction and sentence of imprisonment imposed by learned III Additional District and Sessions Judge, Ranga Reddy District in Sessions Case No.346 of 2009 against the appellant - accused No.1, vide judgment dated 14.02.2014 As a sequel, miscellaneous applications, if any, pending in the appeal shall stand closed.
_________________ K. LAKSHMAN, J _________________ K. SUJANA, J 29th December, 2023 Mgr