THE HONOURABLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.226 OF 2021
JUDGMENT:
This Criminal Appeal is filed by the Appellant/Accused aggrieved by the conviction recorded by the Special Sessions Judge for Trial of Cases under SC/STs (POA) Act-cum-VII Additional Sessions Judge, Warangal, in S.C.No.130 of 2020 dt.10.05.2021, convicting the accused for the offence punishable under Sections 304, Part-II of the Indian Penal Code and sentencing to undergo rigorous imprisonment for a period of seven years and also to pay a fine of Rs.100/-.
2. Heard both sides. Perused the record.
3. Briefly, the case of the prosecution is that the appellant/accused married the deceased six years prior to his death. The appellant/accused gave birth to a son and daughter. The deceased was beating the accused stating that the son was not born to him and she was having an affair. The said act of beating was on a daily basis. The deceased used to come home drunk and beat the child and also the appellant/accused. PW1 in his complaint stated that he came to know about the appellant 2 assaulting the deceased with an Axe on the head which resulted in his death.
4. On the basis of the complaint lodged by PW1 who is the brother of the deceased the Police registered the case and filed charge sheet for the offences under Section 302 of the Indian Penal Code.
5. The learned Sessions Judge having examined the witnesses PWs.1 to 12 and going through the exhibits marked for the prosecution which are Exs.P1 to P10 found that the offence is made out under Section 304 part-II of the Indian Penal Code and accordingly sentenced. The said acts of the deceased in coming home drunk and assaulting the accused was narrated by PWs.1, 3, 6, 11 and 12.
6. Learned Counsel appearing for the appellant/accused would submit that PW1 is not an eye-witness to the incident. The Police have not taken any steps to send the Axe for the purpose of FSL examination to conclude that the blood found on the Axe was of the deceased. Further, all the witnesses have stated that the appellant had informed them that she had killed him, however, no evidence was produced by the prosecution to show that the appellant was present in the house when the death had taken 3 place. Only on the basis of the alleged extra judicial confession made to PWs.1, 3, 11 and 12, conviction was recorded. It is stated by the witnesses that they found the deceased dead in the house. The appellant informed them that she had assaulted with an Axe when the deceased came home drunk and started beating her. The said statements of the witnesses cannot be considered to infer that the appellant had assaulted the deceased with an Axe.
7. On the other hand learned Additional Public Prosecutor would submit that the evidence on record and the witnesses examined would go to show that it was the appellant who had committed the act of assaulting the deceased with an Axe. Corroborative evidence was collected from the scene. M.O.1-Axe contains blood stains and it was seized at the instance of the appellant. In the said circumstances, Criminal Appeal has to be dismissed.
8. It is an admitted fact by all the witnesses who were examined, that the deceased used to suspect the character of the appellant and also used to say that the son was not born to him. He was beating the appellant on a daily basis after coming home drunk. According to the witnesses, the appellant was in the house when the incident had taken place. If the appellant was present in 4 the house, under Section 106 of the Evidence Act, the burden is on the appellant/accused to explain under what circumstances, the deceased died. Except denial, there is no other evidence to suggest that the appellant was not present in the house.
9. The witnesses PWs.1, 3, 6, 11 and 12 stated that the appellant has assaulted her husband since he had come home drunk and started beating her. There is no reason as to why the witnesses who were neighbours and well-known to the appellant would speak false against her. As already stated she was present in the house when the witnesses went there and she had informed the witnesses about the incident seeking help from them.
10. Assault by the appellant/accused is apparent, in the background of continuous differences in between the appellant and the deceased and statements of witnesses. PW.12 stated that the appellant used to leave her son with PW.12, since the deceased used to come home drunk and beat the child also.
11. Post conviction, the appellant was in jail along with the son and daughter. Apparently, there are no other relatives who would take care of the children. On the basis of the children being lodged in jail along with the appellant, sentence was suspended and bail was granted. The alleged attack even according to the prosecution 5 was a result of the deceased beating her, daily, suspecting her character and also beating the son stating that he was not born to him. Since there is no one else to take care of the children and in the peculiar facts of the present case, this Court deems it appropriate to reduce the sentence of imprisonment to the period already undergone.
12. Accordingly, the Criminal Appeal is partly allowed reducing the sentence of imprisonment of the appellant/accused to the period already undergone. Since the appellant/accused is on bail, her bail bonds shall stand discharged.
Miscellaneous applications pending, if any, shall stand closed.
_________________ K.SURENDER, J Date: 17.11.2023 tk