THE HONOURABLE SMT. JUSTICE K. SUJANA
CRIMINAL APPEAL No.184 of 2019
JUDGMENT:
Aggrieved by the Judgment dated 06.12.2017 passed by the learned Principal Sessions Judge, Adilabad in S.C.No.233 of 2014, the present Criminal Appeal is filed.
2. Heard Smt. D. Madhavi, learned counsel appearing on behalf of the appellant, as well as Smt. Shalini Sakena, learned Assistant Public Prosecutor appearing on behalf of the respondent.
3. The trial Court convicted the appellant for the offence punishable under Section 304 part II of the Indian Penal Code, 1860 (for short 'the IPC') and sentenced him to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,000/- and in default of payment of fine to suffer simple imprisonment for a period of six (6) months.
4. Learned counsel for the appellant would submit that the trial Court failed to see that the ingredients to constitute the offence punishable under Section 304 part II of IPC are not made out by the prosecution and failed to appreciate the evidence of PWs.1, 2 and 4 and they are none other than the parents and the brother of the deceased. According to them, the deceased informed about the alleged harassment made by the appellant. He further submitted SKS,J Crl.A.No.184 of 2019 2 that the learned Sessions Judge should have seen that after the death of the deceased the prosecution has come forward with an allegation against the accused that he was addicted to alcohol and harassed the deceased for the first time. He further submitted that the evidence on record is not corroborating with each other and the material witnesses are turned hostile. The evidence of P.W.3 who is the son of the deceased and the accused, turned hostile. Even though, he turned hostile, his evidence was considered by the trial Court which is against the settled principles of law. Therefore, he prayed the Court to set aside the judgment by acquitting the accused.
5. On the other hand, learned Assistant Public Prosecutor vehemently opposed stating that there is ample evidence on record to prove the accusation against the appellant. Evidence of witnesses is corroborating with each other. Though P.W.3 not supported the case and declared as hostile, chief examination of P.W.3 supports the prosecution case with regard to the occurrence of incident on the alleged date of incident. PWs.1 to 4 evidences are sufficient to prove the motive for commission of offence. As such, there are no infirmities in the judgment of the trial Court and there are no merits in the appeal and prayed the Court to dismiss the appeal.
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6. To prove the case of the prosecution, they examined PWs.1 to 18 and Exs.P1 to P17 are marked. Basing on the evidence on record, the trial Court convicted the accused/appellant.
7. The facts of the case are that on 12.06.2014 at about 08:00 A.M., the de-facto complainant i.e., Dasari Bohajanna went to Police Station and lodged complaint stating that he performed the marriage of his younger daughter by name Vijaya (deceased) with the accused, he was addicted to alcohol, not attending any work and was quarrelling with his daughter. On 11.06.2014, his daughter went to field work and returned home lately. Due to tiredness, she could not prepare food. Thereupon, the accused picked up a quarrel with her, beat her with hands and throttled her to death. The same was informed to him by Sarpanch on phone and he was further informed to the deceased father that his daughter was admitted in Government hospital, Bhainsa and therefore, he requested necessary action against the accused. On that, the Police, Kuntala registered a case for the offence punishable under Section 302 of IPC. The Police examined the witnesses and recorded their statements and conducted scene of offence, inquest panchnama and handed over the dead body. After completion of investigation, they filed charge sheet against the accused.
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8. To prove the same, the evidence on record is P.W.1-de-facto complainant, father of the deceased and PWs.2 to 5 are mother of the deceased, son of the accused and the deceased and eyewitness brother of the deceased, and Cousin brother of the deceased. PWs.6 to 8 and 13 are circumstantial witnesses. P.W.6 is the person to whom P.W.3 informed the incident on that night. P.W.8 is the Sarpanch who informed the incident to the parents of the deceased over phone. P.W.13 is the auto driver. PW.9 is the photographer. P.Ws.10 and 11 are Panch for inquest, P.W.12 is the Panch for CDF, P.W.14 is the Panch for confession of accused and P.W.15 is the Medical Officer and P.W.16 is the Investigating Officer.
9. There is no dispute that deceased and accused are the wife and the husband and they had two sons. According to the prosecution, the accused was addicted to alcohol, he was not doing any work. He is depending on the earnings of the deceased and harassing the deceased for money. On 11.06.2014, the deceased was went to field work and returned to house lately. Due to tiredness, she could not prepare food, for which, the accused quarreled with her, beat her and throttled her to death.
10. P.W.1 who is the father of the deceased deposed that P.W.2 is his wife. Deceased and the accused were married and they were blessed with two sons namely Akash and Abhishek. He further SKS,J Crl.A.No.184 of 2019 5 deposed that accused was beating the deceased under the influence of alcohol without doing any work and he depended on the deceased earnings. He further deposed that there were regular quarrels between the accused and the deceased. On the date of incident, he quarreled with the deceased and committed murder. Though he was cross-examined at length nothing was elicited except stating that he has not lodged any complaint with the police with regard to the harassment made by the accused against the deceased.
11. P.W.2 who is the mother of the deceased also deposed on the same lines as of P.W.1 and in cross examination, she suggested that the accused was not responsible for the death of her daughter and the complaint is false. P.W.3 is the son of the deceased and accused and an eye witness to the incident. He deposed that about three years back, his mother died in their house during night hours. At that time, his parents, himself and his younger brother Abhishek are present in the house. On that day, at the time of his mother's death he was sleeping. On the next day morning he came to know through his paternal uncle that his mother was killed by his father and he took him to Government Hospital, Bhainsa, where he saw his mother in mortuary. In cross-examination, P.W.3 stated that on the date of incident at about 02:30 P.M., his father quarreled with his mother for not preparing food and thereupon, SKS,J Crl.A.No.184 of 2019 6 the accused raised voice on deceased for that scene he woke up and saw that his father was beating his mother with hands and was pressing her neck with hands, on seeing the same, he ran immediately towards the house of P.W.6 and informed him and he came to his house and on seeing him, his father ran away. He also admitted that P.W.7-Pentaji also came to his house and P.Ws.6 and 7 shifted her to Government Hospital, Bhainsa. Whereas, in cross-examination by the accused he deposed that he do not know anything about the case.
12. P.W.4 is the brother of the deceased and he also deposed on the same lines as of P.Ws.1 and 2. P.W.5 is the cousin brother of the deceased, he is also not an eye witness to the incident.
13. P.Ws.1 to 5 evidences clearly establishes that the accused was habituated to consuming alcohol and he was not doing any work and was totally depending on the earnings of the deceased.
14. P.W.6 is the circumstantial witness and he deposed that on the date of death of the deceased, he came back to his village, then P.W.3 came to him and informed him that his mother was shifted to Government Hospital, Bhainsa in Auto and he informed the same to P.Ws.1 and 2 due to non-availability of their number, he informed the same to Sarpanch i.e., P.W.8 and he further deposed that he do not know where the deceased died and do know anything about the case and he was also declared as hostile.
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15. P.Ws.7 and 8 not supported the prosecution case and turned hostile. P.W.9 is the photographer and P.Ws.10 and 11 are Panch for inquest and P.W.12 is Panch for Crime Detail Form. P.W.13 is the circumstantial witness and his evidence is that at the request of the son of the deceased that his mother was not keeping good health he went with him in his auto to his house and by the time, he reached there 10 to 15 persons were present in front of the house of the accused. Then, he went along with P.W.6 and another neighbour of the accused, shifted the deceased in his auto to Government Hospital, Bhainsa for treatment and after one hour on his return from the hospital, he came to know about the death of the deceased. He has also not supported the prosecution case and turned hostile.
16. P.W.14 is the panch for confession and recovery and he stated in his evidence that accused confessed the commission of the offence in his presence and there is no recovery basing on the confession. As such, the evidence of P.W.14 is not at all useful to the prosecution case. P.W.15 who is the Doctor deposed that Dr. A Mukesh conducted Post Mortem examination and informed that scratch marks in front of neck, Crush injury of larynx, crush injury of pharynx and fracture of hyoid bone and according to him, the death was due to 'Asphyxia secondary to throttling'.
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17. P.Ws.16 to 18 who are the Investigating Officers deposed about the investigation. There is no dispute that the accused and the deceased were residing in the same house. As per Section 106 of the Indian Evidence Act, burden lies on the accused to explain what happened to his wife since the offence occurred within the four walls of the house and there is no cogent explanation by the accused. Though there is no motive for the commission of offence, the accused was admittedly in drunken condition and the evidence of P.Ws.1 to 3 proves that he used to quarrel with the deceased for money. He was not earning anything and depending on the deceased.
18. Due to that quarrel in a drunken condition, he committed offence. Evidence of P.W.3, who is the son of accused and deceased proves that accused and deceased were there in the house, quarrel took place, as the deceased not prepared food properly. Though he failed to depose in the chief examination, in cross-examination by Assistant Public Prosecutor, he deposed about the incident. Though he turned hostile, his evidence proves presence of the accused. When the evidence on record proves all the circumstances showing guilt of the accused, it is the accused that who has to explain what happened to his wife under Section 106 of Indian Evidence Act, 1872. Admittedly, there is no SKS,J Crl.A.No.184 of 2019 9 explanation from the accused as such it can be held that he killed his wife in a sudden quarrel in drunken condition.
19. Therefore, there is no infirmity in the judgment passed by the trial Court in convicting the accused whereas, the accused is in jail for almost six (6) years, as such, this Court deems it appropriate to reduce the sentence of imprisonment maintaining the conviction against the appellant for the offence punishable under Section 304 part II of I.P.C.
20. IN THE RESULT, the present Criminal Appeal is partly allowed and the judgment dated 06.02.2017 in S.C.No.233 of 2014 passed by the learned Principal Sessions Judge, Adilabad, is modified. However, as the appellant/accused is in jail since the date of conviction, the sentence imposed on him is reduced to the period of imprisonment already undergone by him. The appellant/accused is set at liberty forthwith, if he is not required in any other case or crime. The bail bonds of the appellant/Accused shall stand cancelled.
As a sequel, miscellaneous petitions, pending if any, shall stand closed.
______________ K.SUJANA, J DATE: 20.10.2023 SAI SKS,J Crl.A.No.184 of 2019 10 12 THE HON'BLE SMT. JUSTICE K. SUJANA CRIMINAL APPEAL No.184 of 2019 DATE: 20.10.2023 SAI