Peram Subbarami Reddy, vs The State Of Andhra Pradesh,
2022 Latest Caselaw 9502 AP

     THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR

                               AND

 THE HON'BLE SRI JUSTICE B.V.L.N. CHAKRAVARTHI


            CRIMINAL APPEAL No.1433 of 2017


JUDGMENT : (Per Hon'ble Sri Justice C. Praveen Kumar)

      The present appeal came to be filed challenging the

conviction and sentence dated 02.11.2017 in Sessions

Case No.66 of 2014 on the file of learned I Additional

Sessions Judge, Nellore.


2.    Originally, A.1 to A.3 were charged for the offences

punishable under Section 498-A of Indian Penal Code,

1860 [for short, "I.P.C.] and against A.1 and A.2 for the

offence under Section 302 r/w. Section 34 I.P.C, for

causing the death of one Peram Prasanthi on 14.12.2012

at Gandhi Nagar, Buchireddypalem Village and Mandal,

SPSR Nellore District.


3.    By its judgment, dated 02.11.2017, the learned

Sessions Judge while acquitting A.2 and A.3 of all the

charges, convicted A.1 alone for the offence punishable

under Section 302 r/w. Section 34 I.P.C. and sentenced
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him to suffer Imprisonment for Life and to pay fine of

Rs.2000/- in default to suffer Simple Imprisonment for two

months. He was also convicted and sentenced to undergo

Rigorous Imprisonment for one year for the offence

punishable under Section 498-A I.P.C. and to pay fine of

Rs.500/- in default to suffer Simple Imprisonment for

fifteen   days.   The   substantive   sentences    shall    run

concurrently.


4.    The facts, as culled out from the evidence of

prosecution witnesses, are as under:-


      (a) The deceased Prasanthi was the wife of A.1. A.2 is

the brother of A.1 while A.3 is the mother of A.1 and A.2.

A.4 who was originally shown as accused in the First

Information Report [F.I.R.] is the wife of A.2.    Later, A.4

was cited as a witness in the Charge Sheet as L.W.6 and

examined as P.W.4.      P.W.1 is the father, P.W.2 is the

brother, P.Ws.3 and 6 are neighbours of the deceased. The

marriage of A.1 with the deceased took place about nine

years prior to the incident and they were blessed with a

son, who was aged about six years at the time of incident.
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        (b) At the time of marriage, P.W.1 gave Ac.1.00 cents

of   land,   fourteen   sovereigns   of   gold   and     cash      of

Rs.50,000/- to A.1.      They were blessed with son, aged

about six years at the time of incident. It is said that the

deceased informed P.W.1 about A.1 harassing her on the

instigation of A.2 and A.3, for a second marriage.             But,

however, P.W.1 was insisting the deceased to adjust her

with A.1.     It was stated that four months prior to the

incident, A.1 tried to kill the deceased by electrocution.

P.W.1 along with others went to Buchireddypalem Village

and questioned him about the attitude of the accused

towards the deceased and also advised him to mend his

ways.     Then, A.1 promised to look after the deceased

properly.


        (c) It is said that about fifteen days prior to the

incident, A.1 and A.3 necked out the deceased from the

house, which was informed by her to P.W.1, who along

with others went to the house of the accused, to which A.1

promised to look after the deceased properly. It is said that

on the fateful day, in the early hours, A.1 telephoned to

one Gudala Sanjeeva Reddy and informed about the death
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of the deceased. Pursuant to which, all of them went to

Buchireddypalem at 8.00 a.m. and found the dead body of

the deceased lying in the house. But the accused A.1 to

A.3 were not in the house. They found injuries on the neck

and also on her face. Their enquiries with the neighbours

revealed that since two or three days, there were quarrels

between the deceased and A.1. Accordingly, at about 2.00

p.m. P.W.1 went to Police Station and lodged a report with

P.W.8-Assistant Sub-Inspector of Police, which lead to

registration of a case in Crime No.182 of 2012 under

Section 174 Cr.P.C. Ex.P6 is the F.I.R. Thereafter, P.W.8

visited the scene of offence and observed the same.


     (d)   P.W.11-Inspector   of   Police,   who    took      up

investigation, went to the house of the accused, secured

the presence of V.R.O, examined the scene of offence which

is marked as Ex.P4. He also got prepared a rough sketch

of the same which is marked as Ex.P9.         He then held

inquest over the dead body of the deceased on 16.12.2012

and issued Ex.P5-inquest report. During the inquest, he

examined P.Ws.1 and 2 and others and recorded their

statements. After completing the inquest, he sent the body
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for Post Mortem examination. P.W.9-Medical Officer, U.P.

Graded        Primary        Health        Centre,    Buchireddypalem,

conducted Post Mortem examination on the dead body of

the deceased and issued Ex.P8-Post Mortem Certificate.

According to him, the cause of death was due to Asphyxia

due      to   throttling.    Having        regard    to   the   suspicious

circumstances, in which death took place, P.W.8 altered

the section of law to one Section 302 r/w. Section 34 I.P.C.

on 18.12.2012.              Ex.P7 is the altered F.I.R. P.W.11-

Inspector of Police who continued with the investigation,

arrested A.1 to A.3 on 20.12.2012.


5.       After collecting all the necessary documents, PW.11

filed    a    charge   sheet,        which    was    taken      on   file   as

P.R.C.No.31 of 2013 on the file of the learned Additional

Judicial Magistrate of First Class, Kovur for the offences

punishable under Section 498-A, 302 r/w. Section 34

I.P.C.


6.       On    appearance       of    the    accused,     copies     of     the

documents, as required under Section 207 Cr.P.C. were

supplied to them. As the case is triable by Court of
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Sessions, the same was committed to the Court of Sessions

under Section 209 Cr.P.C.         Accordingly, the same was

made over to the Court of the learned I Additional Sessions

Judge, Nellore for trial and disposal in accordance with

law.


7.     Basing on the material available on record, charges,

as referred to earlier, came to be framed, read over and

explained to the accused in Telugu to which, they pleaded

not guilty and claimed to be tried.


8.     To substantiate its case, the prosecution examined

P.Ws.1 to 11 and got marked Exs.P1 to P16 and M.O.1 to

M.O.8.


9.     After the closure of Prosecution evidence, the accused

were examined under Section 313 Cr.P.C. with reference to

the incriminating circumstances appearing against them in

the evidence of the prosecution witnesses, to which, they

denied. However, they did not adduce any evidence except

marking Ex.D1-Portion of Section 161 Cr.P.C. statement of

P.W.1 in support of their plea. Relying upon the evidence

of P.W.1 to 3 and 6 and in the absence of any explanation
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by    the    accused,   the   learned   Sessions    Judge       while

acquitting A.2 and A.3, convicted A.1 alone for the offence

punishable under Sections 498-A and 302 r/w. Section 34

I.P.C. It is against the said conviction and sentence, the

present appeal came to be filed by appellant/A.1.


10.    Sri H. Prahalada Reddy, learned counsel for the

appellant/A.1 mainly submits that there is no legal

evidence to connect the accused with the crime. According

to him, when two other inmates of the house were

acquitted, the trial Court erred in convicting A.1 alone by

invoking Section 106 of the Indian Evidence Act, 1872. He

further submits that before invoking Section 106 of the

Indian Evidence Act, the prosecution has to prove its case

and thereafter the burden shifts on to the accused to

explain the circumstances, under which, the death took

place.      Since the prosecution has failed to discharge its

initial burden, the trial Court erred in invoking Section 106

of the Indian Evidence Act to convict A.1.


11.    Sri Soora Venkata Sainath, learned Additional Public

Prosecutor, for the Respondent/State would submit that

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the evidence on record establish beyond reasonable doubt

the involvement of the A.1 in the crime. He would submit

that when the death took place in his house and when it is

an unnatural death, the burden is on the accused to

explain as to how the death took place. In the absence of

any explanation from the accused as to how the deceased

died in his house, the trial Court was right in convicting

the appellant/A.1.

12. The point that arises for consideration is, whether

the prosecution was able to bring home the guilt of the

accused beyond reasonable doubt?

13. Before proceeding further, it is to be noted here that

one Peram Venkta Ramanamma, who is the wife of A.2,

was initially shown as A.4 in the F.I.R. Subsequently, she

turned as an approver and her Section 164 Cr.P.C.

statement was recorded, which is placed on record as

Ex.P2. When examined in Court as P.W.4, she resiled from

her earlier statements and did not support the prosecution

case. But, however, she stated that her statement was

recorded by Magistrate under Section 164 Cr.P.C.

CPK, J & BVLNC, J Crl.A.No.1433 of 2017

14. As seen from the evidence available on record, there

are no eye witnesses to the incident and the case rests on

circumstantial evidence. In a case arising out of

circumstantial evidence, the prosecution has to prove each

of the circumstance relied upon by them and the

circumstances so proved should form a chain of events to

connect the accused with the crime.

15. It is now to be seen, whether the circumstances

relied upon by the prosecution are proved and whether

the trial Court was right in invoking Section 106 of

the Indian Evidence Act, 1872?

16. P.W.1 is the father of the deceased. He in his

evidence deposed about the marriage between A.1 and the

deceased taking place about nine years prior to the

incident and giving Ac.1.00 cents of land, fourteen

sovereigns of gold and Rs.50,000/- cash to A.1. He, also

speaks about A.1 harassing the deceased on the instigation

of A.2 and A.3 for second marriage of A.1 and on one

occasion, A.1 tried to kill the deceased by electrocution.

His evidence also refers to A.1 to A.3 necking out the

CPK, J & BVLNC, J Crl.A.No.1433 of 2017

deceased from the house about fifteen days prior to the

incident. Ultimately, the information about the death of

the deceased was said to have been furnished by one

Gudala Sanjeeva Reddy. Pursuant to which, all of them

went to the house of A.1 at Buchireddypalem Village and

found the deceased lying in the house.

17. In the cross-examination of P.W.1, various

suggestions were given with regard to A.1 to A.3 necking

out the deceased from the house; harassment by A.1 to A.3

for the purpose of second marriage of A.1; enquires with

neighbours with regard to a quarrel that took place

between A.1 and the deceased two or three days prior to

the incident. But, all these suggestions were denied.

However, when the same were put to P.W.11-Investigating

Officer, he stated as under:-

"P.W.1 in Ex.P1 stated that he has suspecting A.4 as involved in the commission of the offence. It is true that P.W.1 did not state before me that Accused No.1 and Accused No.3 necked out the deceased from the matrimonial house 15 days prior to the incident and the same was informed to me by the deceased over phone.

It is true that P.W.1 did not state before me or Ex.P1 that he enquired from the neighbours, who informed him,

CPK, J & BVLNC, J Crl.A.No.1433 of 2017

that since two or three days there were quarrels between deceased and accused No.1 and pressing her to take her to Mamuduru Village."

From the evidence of P.W.11 is very much clear that the

averments in the evidence of P.W.1 that A.1 and A.3

necked out the deceased out of the house fifteen days prior

to the incident and the enquiries made by P.W.1 from the

neighbours, which revealed that, A.1 and the deceased

were quarrelling three days prior to the incident, were

never mentioned when P.W.1 was examined under Section

161 Cr.P.C. and in Ex.P1 report. Apart from that, in the

F.I.R, A.4 was suspected as the person responsible for the

commission of the offence. However, one fact which stands

established from the evidence of P.W.1 and Ex.P2 is that

there were four persons in the house at the time of

incident. Out of four, one [A.4] was examined as P.W.4.

18. Coming to the evidence of P.W.2, he is the son of

P.W.1. His evidence toes in line with the evidence of P.W.1

in all aspects. Similar suggestions given to P.W.1 were also

given to P.W.2, but he denied the same. When the same

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were put to Investigating Officer [P.W.11], he stated as

under:-

"It is true that P.W.2 did not state before me that he along with Accused No.1, Accused No.3 and her husband were also living.

It is true that P.W.2 did not state before me that he came to Buchireddypalem from Hyderabad on the date of incident.

It is true that P.W.2 did not state before me that when they enquired from the neighbours, who informed them that since two or three days there were quarrel between deceased and accused No.1."

19. At this stage, it is also to be noted that P.W.2 in his

cross-examination stated that he has stated before Police

that he is suspecting L.W.6 also for the death of the

deceased. Further, the evidence of P.W.11 also establish

the allegations of harassment which was alleged to have

been meted out to the deceased, prior to the incident and

the enquiries made by P.W.2 revealed quarrels between the

accused and the deceased since two or three days, were

never mentioned by him in his earlier statement. But,

however, the evidence of P.W.2 shows presence of four

persons in the house. The evidence of P.Ws.1 and 2 also

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gets corroboration from the evidence of Investigating Officer

and other witnesses with regard to the presence of four

persons in the house.

20. P.W.3 is a neighbour, whose house is situated

opposite to the house of the deceased Prasanthi. It is her

version that the deceased used to inform her about her

husband having illegal contact with another lady and

harassing her daily. She also speaks about the act of the

accused in trying to kill her by electrocution. On coming to

know about the death of the injured, she went to the house

and found the body lying in the hall of the house.

21. P.W.3 was cross-examined at length wherein she

admits her Section 161 Cr.P.C. statement was recorded in

the Police Station, nearly a week or ten days after the death

of the deceased. Therefore, much reliance cannot be

placed on the evidence of P.W.3, as no explanation is

forthcoming as to why it took such a long time for the

Police to record her Section 161 Cr.P.C. statement, when

she is none other than the neighbour of the deceased and

accused.

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22. Apart from that, it is also to be noted that though

P.W.3 claims that the deceased was informing, about A.1

having illicit contact with another lady and he wanted to

marry, the same is not spoken to by P.Ws.1 and 2

23. Be that as it may, the evidence of Investigating Officer

would reveal that there are no eye witnesses to the incident

except P.W.4 and the basis for showing A.1 to A.3 as

accused in this case, is the statement of P.W.4. It would be

appropriate to extract that portion of the evidence of

P.W.11-Investigating Officer, which is as under:-

"I have examined the witnesses in and around the house of A.1. It is true that that none of the witnesses examined by me stated that they have seen deceased Prasanthi alive in the company of A.1 to A.3 and P.W.4 either in the house of A.1, outside or at any place. A.1 to A.4 alone are the suspects in both Ex.P6 and Ex.P7. There are no eye witnesses to the occurrence except P.W.4. The basis for showing the accused Nos.1 to 3 as accused in this case is the statement of P.W.4."

24. From the evidence collected by the Investigating

agency, P.W.4 [A.4] was projected as eye witness to the

incident and even Section 164 Cr.P.C. statement was

recorded, but she did not support the prosecution case and

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was treated as hostile to the prosecution case. Therefore,

Section 164 Cr.P.C. Statement of this witness though

speaks about involvement of A.1 and other accused

including her husband A.2 in one form or other, but the

same cannot be treated as substantive evidence. It is well

established principle of law that the said statement

recorded under Section 164 Cr.P.C. statement can only be

used to contradict the maker. Therefore, from the evidence

available on record, it is very much evident that there is no

direct evidence to connect the accused with the crime.

25. At this stage, learned Additional Public Prosecutor

tried to contend that since the dead body is found in the

house, the burden is on the appellant/accused to explain.

But, as held by us earlier, there were four persons

including P.W.4, in the house at the time of incident and

two of them were tried for the offence under Section 302

r/w. Section 34 I.P.C. Such being the position, when other

accused is acquitted of major offence, it is difficult to come

to a conclusion that A.1 alone would be liable for the said

offence.

CPK, J & BVLNC, J Crl.A.No.1433 of 2017

26. For invoking Section 106 of Indian Evidence Act, the

Hon'ble Supreme Court in Satye Singh and another vs.

State of Uttarakhand1 in Paras 15 and 16 of the said

judgment, held as under:-

"15.Applying the said principles to the facts of the present case, the Court is of the opinion that the prosecution had miserably failed to prove the entire chain of circumstances which would unerringly conclude that alleged act was committed by the accused only and none else. Reliance placed by learned advocate Mr. Mishra for the State on Section 106 of the Evidence Act is also misplaced, inasmuch as Section 106 is not intended to relieve the prosecution from discharging its duty to prove the guilt of the accused. In Shambu Nath Mehra vs. State of Ajmer, AIR (1956) SC 404, this Court had aptly explained the scope of Section 106 of the Evidence Act in criminal trial. It was held in para 9:

"9. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relive it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word

1 2022 LiveLaw (SC) 169

CPK, J & BVLNC, J Crl.A.No.1433 of 2017

"especially" stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show are Attygalle v.

Emperor [AIR 1936 PC 169] and Senevitratne v. R. [(1936) 3 ALL ER 36, 49]".

16. In the case on hand, the prosecution having failed to prove the basic facts as alleged against the accused, the burden could not be shifted on the accused by pressing into service the provisions contained in Section 106 of the Evidence Act. There being no cogent evidence adduced by the prosecution to prove the entire chain of circumstances which may compel the court to arrive at the conclusion that the accused only had committed the alleged crime, the Court has no hesitation in holding that the Trial Court and the High Court had committed gross error of law in convicting the accused for the alleged crime, merely on the basis of the suspicion, conjectures and surmises."

CPK, J & BVLNC, J Crl.A.No.1433 of 2017

27. Similarly, in Joydeb Patra and others vs. State of

West Bengal2 , it was held as under:-

"10. xxxxx This Court has repeatedly held that the burden to prove the guilt of the accused beyond reasonable doubt is on the prosecution and it is only when this burden is discharged that the accused could prove any fact within his special knowledge under Section 106 of the Evidence Act to establish that he was not guilty. In Sucha Singh v. State of Punjab [(2001) 4 SCC 375 : 2001 SCC (Cri) 717] this Court held: (SCC p. 381, para 19)

"19. We pointed out that Section 106 of the Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases where the prosecution has succeeded in proving facts for which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of special knowledge regarding such facts failed to offer any explanation which might drive the court to draw a different inference."

Similarly, in Vikramjit Singh v. State of Punjab [(2006) 12 SCC 306 : (2007) 1 SCC (Cri) 732] this Court reiterated:

(SCC p. 313, para 14)

"14. Section 106 of the Evidence Act does not relieve the prosecution to prove its case beyond all reasonable doubt. Only when the prosecution case has been proved

2 AIR 2013 SC 2878

CPK, J & BVLNC, J Crl.A.No.1433 of 2017

the burden in regard to such facts which was within the special knowledge of the accused may be shifted to the accused for explaining the same. Of course, there are certain exceptions to the said rule e.g. where burden of proof may be imposed upon the accused by reason of a statute."

28. From the two judgments referred to above, it is very

much clear that before invoking Section 106 of Indian

Evidence Act, 1872, the initial burden is on the

prosecution to prove its case and thereafter the onus shifts

to the accused for explaining the same. As stated earlier,

in the instant case, the prosecution failed to discharge its

initial burden of proving its case beyond doubt.

29. Further, as there are more than one person in the

house at the time of incident and as all of them were

acquitted except the appellant, it cannot be pointed out

with certainty that A.1 alone would be responsible for the

death of the deceased. The situation identical to the case

on hand came up for consideration before the Hon'ble

Supreme Court in Baul and another vs. The State of

Uttar Predesh3. In the said case, two accused were

3 AIR 1968 SC 728

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convicted by the Sessions Court under Section 302 r/w.

Section 34 I.P.C. and one of them alone was convicted

under Section 302 I.P.C. by the High Court in appeal. The

Hon'ble Supreme Court held that the other accused cannot

be convicted under Section 302 simpliciter in the absence

of proof of exact nature of injuries caused by each of the

accused and it was held that it is safe to convict the

accused under Section 325 I.P.C. instead of Section 302

I.P.C. The situation is somewhat identical in the case on

hand as well.

30. As stated by us earlier, the facts in the judgment

referred to above, is somewhat identical to the case on

hand, therefore, we feel that it may not be safe to convict

the accused either under Section 302 simpliciter or Section

302 r/w. Section 34 I.P.C. by invoking Section 106 of

Indian Evidence Act. At this stage, learned Additional

Public Prosecutor tried to contend that the evidence of

P.W.6, who is a neighbour, would reveal that there was a

quarrel between the deceased and A.1. The deceased

informed P.W.6 about four months prior to the incident

that the accused tried to kill her by electrocution and

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pursuant to a mediation held, the accused brought back

the deceased and thereafter the incident in question took

place. It may be true that P.W.6 in her evidence in chief

deposed about the harassment by the accused and the

quarrel which ensured between them. But, one fact which

requires to be noted that merely because there was an

attempt to kill the deceased by A.1 about four months prior

to the incident, one cannot draw an inference that it would

be A.1 alone who could have caused the death on

15.12.2012. At the most, the said evidence may establish

the allegations of cruelty by A.1.

31. Having regard to the evidence of Investigating Officer

referred to above, wherein he admits that the entire case is

based on the statement of P.W.4 [A.4], who did not support

the prosecution case] coupled with the fact that none of the

witnesses stated about they have seeing the deceased alive

in the company of A.1 to A.3, either in the house of A.1 or

outside the house; since the evidence of P.Ws.1 to 3 is a

complete improvement from what they have stated in their

earlier statements with regard to harassment which took

place fifteen days prior to the incident and also the quarrel

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between the accused and the deceased two or three days

prior to the incident; and since four persons including

P.W.4 who were present in the house, out of whom one was

acquitted even in respect of a major charge, we feel that it

is not safe to convict A.1 for the offence under Section 302

I.P.C. But, the nature of averments in the evidence of

prosecution witnesses, would clearly establish an offence

under Section 498-A I.P.C.

32. Accordingly, the Criminal Appeal is allowed in part.

The conviction and sentence recorded against the

appellant/A.1 in the Judgment dated 02.11.2017 in

Sessions Case No.66 of 2014 on the file I Additional

Sessions Judge, Nellore for the offence punishable under

Section 302 r/w. Section 34 I.P.C, is set aside and the

appellant/A.1 is acquitted for the offence under Section

302 r/w. Section 34 I.P.C. However, the conviction and

sentence recorded against the appellant/A.1 for the offence

punishable under Section 498-A I.P.C. is hereby

confirmed. Consequently, the appellant/accused shall be

set at liberty forthwith, if he is not required in any other

CPK, J & BVLNC, J Crl.A.No.1433 of 2017

case or crime. The fine amount, if any, paid by the

appellant/A.1 shall be refunded to him.

Consequently, miscellaneous petitions, if any,

pending shall stand closed.

_______________________________ JUSTICE C. PRAVEEN KUMAR

___________________________________ JUSTICE B.V.L.N. CHAKRAVARTHI

Date: 09.12.2022

MS

CPK, J & BVLNC, J Crl.A.No.1433 of 2017

THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR

AND

THE HON'BLE SRI JUSTICE B.V.L.N. CHAKRAVARTHI

CRIMINAL APPEAL NO.1433 OF 2017 (Per Hon'ble Sri Justice C. Praveen Kumar)

DATE:09.12.2022

MS