Andhra Pradesh High Court - Amravati
Palleti Suresh, Spsr Nellore Dt., vs The State Of Telangana, Rep Pp., on 9 August, 2024
Author: U.Durga Prasad Rao
Bench: U.Durga Prasad Rao
APHC010275432016
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3456]
(Special Original Jurisdiction)
MONDAY, THE FIRST DAY OF JULY
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE U.DURGA PRASAD RAO
THE HONOURABLE SMT JUSTICE KIRANMAYEE MANDAVA
CRIMINAL APPEAL NO: 908/2016
Between:
Palleti Suresh, SPSR Nellore Dt., ...APELLANT
AND
The State Of Telangana Rep PP ...RESPODENT
Counsel for the Apellant:
1. GANGA KUMAR CHAKRAVARTULA
2. LEGAL AID
Counsel for the Respondent:
1. PUBLIC PROSECUTOR (AP)
The Court made the following:
JUDGMENT:
(Per Hon'ble Smt. Justice Kiranmayee Mandava)
Aggrieved by the judgment dated 05.08.2016 in S.C.No.125/2012
passed by the learned VII Additional District and Sessions Judge, Gudur
convicting the accused under Section 235(2) Cr.P.C., and sentencing him for
the offence under Section 302 I.P.C., to undergo rigorous imprisonment for life
and also payment of fine of Rs.1,000/- IDFI, accused has to undergo simple
imprisonment for three (3) months, the accused has filed the Criminal Appeal.
The factual matrix of the case is thus:
1. The complainant is the mother of the deceased. The deceased was the
wife of the accused. On 29-10-2008 (early hours), the wife of the accused died
under suspicious circumstances. Upon the said incident, the complainant
gave a police report against her son-in-law (husband of the deceased), stating
that:
a) On 28-10-2008 on the eve of Deepavali festival, she and her husband
went to the house of their daughter i.e., the deceased, and spent some
time at her house till about 10.30 pm and then left for their house. After
that, at around 1.30.A.M. (early hours of 29-10-2008), the accused, who
is the son-in-law of the complainant, came to their house along with his
minor daughter, informing them that their daughter had hung herself and
died, and he quickly rushed back, leaving his minor daughter with them.
The Complainant and her husband immediately rushed to the
deceased's house, and by the time they went there, the accused was
sitting with the dead body of the deceased keeping the head of the
deceased in his lap.
b) They found a piece of sari around the neck of the deceased, and they
found right temporal swelling and contusion on the right side and the
neck region was found swollen. The accused soon after ran away from
the house.
c) Upon the complaint of the PW1, the police registered the case and then
the Sub-inspector of police took up the investigation.
2. The medical officer conducted a postmortem examination and opined
that the death was due to Asphyxia due to pressure over the neck and
injuries found on the body were anti mortem.
3. On 31-10-2008 the accused was arrested by the Inspector in the
presence of the mediators under cover of panchanama. After investigation, he
filed the charge sheet against the accused under Sections 324,302 and 201
IPC.
4. On appearance of the accused, copies of documents as required under
Section 207 Cr.P.C., came to be furnished. Since the case is triable by Court
of Sessions, the matter was committed to the Sessions Court under Section
209 Cr.P.C. Basing on the material available on record, charges under
Sections 302 and 201 I.P.C came to be framed, read over and explained to
the accused, to which, the accused pleaded not guilty and claimed to be tried.
5. On behalf of the prosecution, PW1 to PW14 were examined and
Exs.P.1 to P.12 and material objects M.Os.1 to 3 were marked. After
completion of prosecution evidence, the accused was examined under
Section 313 Cr.P.C. with reference to the incriminating circumstances
appearing against him in the evidence of prosecution witnesses, to which he
denied, however, no evidence was adduced in support of his plea.
6. The mother of the deceased Smt.Thamalapakula Yashodamma and
father of the deceased Sri.Thamulapakula Perumallu were examined as PW.1
and PW2.
7. Relying upon the evidence of PW-1 to PW-14, the learned Sessions
Judge convicted the accused. Challenging the same, the present appeal came
to be filed.
8. The learned Sessions Judge observed that there were no direct
witnesses to the committing of the offence by the accused and the entire case
rests on circumstantial evidence. Based on the evidence before it, the learned
III Additional District and Sessions Judge, observed that prosecution has
proved "motive" and "last scene" theory regarding circumstantial evidence.
The learned judge further observed that PWs.1 and 2 have stated that when
they were at the house of the deceased, the accused came to the house, and
that during the said night the accused and the deceased were together. The
learned judge referring to the decision of the apex court in the case Gajanan
Dashrath Kharata Vs. State of Maharashtra 1, observed that as provided
under Sec.106 of Evidence Act, when the accused was in the company of the
deceased the burden lies on the accused to necessarily explain as regards
the manner in which the offence was committed or incident had occurred and
therefore the learned judge observed that the prosecution had proved the
circumstances regarding the commission of the offence by the accused and
found him to be guilty of the offence under Sec.302 IPC and sentenced him to
undergo imprisonment for life with a fine of Rs.1000/- and further convicted
the accused under Sec.201 IPC and sentenced him to undergo a period five
(5) years imprisonment and with a fine of Rs.500/- and directed that the both
the sentences shall run concurrently.
Against the same, the present appeal is preferred by the accused
through the High Court Legal Services Committee for the State A.P and
Telangana.
9. Heard Sri Ganga Kumar Chakravarthula for the appellant and the
learned Public Prosecutor for the state. The counsel for the appellant fervently
(2016) 1 ALD -777 SC
contends that the FIR was not registered immediately, but after deliberations
the FIR was lodged.
10. He further contends that in case of circumstantial evidence, "motive"
plays an important role and the same has to be established. He contends that
in the present case the motive has not been established, in the absence of the
which, it cannot be said that the prosecution has proved the guilt of the
accused beyond all reasonable doubts. And further that the presence of the
accused at the scene of offence was not proved and the evidence of PW8, to
establish that the accused was present at the scene of offence is not reliable.
He further contends that if the accused was said to be having any illegal
intimacy with his sister-in-law the same has to be established and that the said
sister-in-law was not examined by the prosecution. The learned counsel
further contends that, the prosecution cannot, without establishing the guilt of
the accused, invoke the presumption under Sec.106 of the Evidence Act. He
relies on the following decisions in support of his contentions.
11. Balvir Singh Vs. State of Uttarakhand2, wherein in paragraph No. 42,
it is observed as under:
"42. Section 106 cannot be invoked to make up the inability of the
prosecution to produce evidence of circumstances pointing to the guilt of
the accused. This section cannot be used to support a conviction unless
the prosecution has discharged the onus by proving all the elements
necessary to establish the offence. It does not absolve the prosecution
from the duty of proving that a crime was committed even though it is a
matter specifically within the knowledge of the accused and it does not
throw the burden of the accused to show that no crime was committed.
To infer the guilt of the accused from absence of reasonable explanation
in a case where the other circumstances are not by themselves enough
to call for his explanation is to relieve the prosecution of its legitimate
burden. So, until a prima facie case is established by such evidence, the
onus does not shift to the accused."
2023 SCC online SC 1261
12. He contends that in the case of conviction on the basis of circumstantial
evidence, the evidence must be fully established and the chain of evidences
should be complete, without leaving scope for any other conclusion, other
than the guilt of the accused.
13. In support of his submissions he relies on the following decision Raj
Kumar Singh Vs State of Rajasthan3 , wherein it is observed as under:
"28. Thus, in view of the above, the Court must consider a case of
circumstantial evidence in light of the aforesaid settled legal propositions.
In a case of circumstantial evidence, the judgment remains essentially
inferential. The inference is drawn from the established facts as the
circumstances lead to particular inferences. The Court has to draw an
inference with respect to whether the chain of circumstances is
complete, and when the circumstances therein are collectively
considered, the same must lead only to the irresistible conclusion, that
the accused alone is the perpetrator of the crime in question. All the
circumstances so established must be of a conclusive nature, and
consistent only with the hypothesis of the guilt of the accused.
xxxx
xxxx
41. xxx An adverse inference can be taken against the accused only
and only if the incriminating material stood fully established and the
accused is not able to furnish any explanation for the same. However,
the accused has a right to remain silent as he cannot be forced to
become witness against himself."
14. The learned counsel contends that in the case of circumstantial
evidence "motive" plays a crucial role and the same should be established.
He relies on the decision of Apex Court in Tomaso Bruno & anr Vs State of
UP4, as under:
"33. Where the case is based on circumstantial evidence, proof of motive
will be an important corroborative piece of evidence. If motive is
indicated and proved, it strengthens the probability of the commission of
the offence. In the case at hand, evidence adduced by the prosecution
(2013) 5 SCC 722
(2015) 7 SCC 178
suggesting motive is only by way of improvement at the stage of trial
which, in our view, does not inspire confidence of the court."
15. Per contra, the learned public prosecutor appearing for the respondent
state submits that , the learned Judge taking support from the postmortem
report and the deposition of the PW-7, Doctor, who conducted autopsy of the
body of the deceased, has observed that there were injuries over the body of
the deceased, and the same were not explained by the accused. Relying on
the decisions of the Hon'ble Supreme Court, in the case of Gajanan Dashrath
Kharate Vs. State of Maharashtra 5 and another decision of the Hon'ble
Supreme Court reported in State of Himachal Pradesh Vs. Rajiv Jassi 6, the
learned public prosecutor contends that in terms of Sec.106 of the Evidence
Act, the burdens lies on the accused to explain the injuries over the body of
the deceased as both accused and the deceased were together all along at
the time of the incident and besides them there were none.
16. As per the testimony of PW-7 the Doctor who conducted postmortem
clearly stated that there were certain anti mortem injuries over the body of the
deceased with following observations:,(1)A huge swelling present at right
temporal region with bluish dark dis-colorization on cut section congested.
(2)A contusion 7x 5 cm present at right cheek.(3)Swelling with bluish dark
dis-colorization present at entire neck region. And that the death occurred on
account of Asphyxia due to pressure over the neck.
17. PW-1 and PW-2, in their evidence stated that the relationship between
the accused and the deceased was not cordial since the accused was alleged
(2016) 4 SCC 604
(2016) 2 ALD(CRL) 48
to have an illicit intimacy with his brother's wife, and when PW-1 and PW-2
confronted the appellant about the relation, the accused was irritated and that
he had asked them not to interfere. It is stated that a week before the incident,
there was a quarrel between the appellant and the deceased regarding the
illicit intimacy of the accused with his brother's wife. It is further stated by
PW-1 and PW-2 that on the fateful day of the incident being, the Diwali
festival, their granddaughter, who had come to stay with them, wanted to go to
her mother (deceased), hence, they provided her new clothes and took the
child that evening to the house of the deceased and burnt firecrackers and
stayed till about 10.30 P.M., with the deceased, and it is further stated that the
accused was present at the house had looked at them seriously. It is stated by
both PW-1 and PW-2 that they left their granddaughter with the deceased and
returned to their home. After that, at about 1.30 A.M., the accused came with
their granddaughter, woke them up and told them that the deceased had
committed suicide and left their granddaughter with them and gone
away. PW-1 and PW-2 Immediately rushed to the house of the deceased and
found the accused sitting with the dead body of the deceased, keeping the
head of the deceased in his lap. PW-1 and PW-2 found a piece of sari around
the neck of the deceased, and a piece of sari hanging to the ceiling fan hook
and they found some scratches to the face, and the neck of the deceased was
found swollen. Soon thereafter, the accused escaped from the house.
18. The other witnesses, i.e. PW-3 and PW-4, who are neighbouring
shopkeepers at the house of the deceased, spoke about events subsequent to
the incident.
19. PW-5 is the VRO summoned by the Police to act as the mediator who
stated that at about 4 pm 31-10-2008, he along with another mediator by the
name Bhaskar went with the Police and found the accused on the NH.5 Road
and the Police arrested the accused in their presence and that the accused
confessed that he had committed the offence.
20. PW-7 who is the Assistant Civil Surgeon conducted the postmortem and
certified that death was on account of Asphyxia, due to pressure over the
neck.
21. PW-8 is a resident of Raja Street, where the deceased was living. She
stated that she had heard loud cries from the accused's house. When she
woke, she found the appellant running from his home with the child.
22. A careful examination of the evidence shows that PWs-1 and 2 did not
state in their evidence as if their daughter was found unhappy on the said
night, driving her to commit suicide 3 hours after that. In the said
circumstances burden heavily lies on the appellant to explain the chain of
events culminating in the deceased's death. As per the evidence on record,
the deceased was last found in the company of the A1. If the deceased were
in contemplation of committing suicide, she would have expressed, at least in
the slightest manner, her agony, if any, to the parents who were with her 3
hours before the incident.
23. After the parents of the deceased i.e., P.W.1 and 2 left for their home, at
10.30 P.M., the deceased and the appellant alone, were at home, and no
other person was there with them except their minor kid. At 1.30 A.M the
accused went to PWs-1 and 2 and informed them the death of the victim. The
accused and the deceased were last seen together on 28-10-008 at
10.30. pm and death occurred at 1.30 am i.e., early hours of 29-10-2008.
Applying the test of last seen together burden is heavily on the accused to
explain as to what had happened in between i.e., since the parents of the
deceased departed their home and the time of the incident. Both the timings
have very close proximity. It is the accused who alone can explain the chain
of events from 10.30 pm to 1.30 am. In the absence of the same, the
presumption as specified under the provisions of Sec.106 of the Evidence Act
would squarely apply, although the entire case of the prosecution is on
circumstantial evidence. No doubt the argument of the learned counsel for the
appellant is that in the case of circumstantial death, unless all the links in the
chain of events are joined together the guilt of the accused cannot be said to
have been established.
24. The sequence of events are:
a) Appellant and deceased were married for 3 years before the incident.
b) As per the police report, the appellant since one week prior to the
incident, had not been going to work and was not providing basic
amenities to the family.
c) On Diwali day (28-10-2008) parents of the victim visited the
deceased and they were with her till 10-30 P.M.
d) At 10.30 PM after having spent some time with their daughter and
the grand daughter, PW1 and 2 left for their home.
d) At 1.30 A.M. on 29-10-2008, appellant/accused came to the house of
the PWs1 and 2 informing about the death of the deceased Ms. Kumari.
e) PW8 stated that she had seen the accused running with the kid from
his house, towards Gandhi statue mandapam and the parents going to
the house of the deceased in the midnight.
f) PWs 1 and 2 stated that they rushed to their daughter's house, they
found appellant/accused sitting with the dead body of their daughter
keeping her head on his lap.
g) Soon after their arrival he fled away and did not come back.
h) As per Medical report the cause for death of the victim was Asphyxia
i) Police arrested the accused on 31-10-2008, at National Highway
while he was about to escape.
25. Since the deceased was last found in the company of the accused, the
accused is bound to explain the sequence of events of 28/29-10-2008, from
10.30 pm to 1.30 am. The accused and the deceased alone were together
during this period, and there was no one else. However, the accused failed to
discharge the burden that has fastened on him of narrating the events within
his knowledge. The cause of death of the deceased was known only to the
appellant. The appellant/accused did not lead any evidence either
documentary or oral, nor made any suggestions to the prosecution witnesses.
In the absence of the same, and since the prosecution has proved beyond all
doubt that the accused was the culprit. If certain facts, which prosecution is
not able to lay its hands on account of the fact that, the same would lie only
within the knowledge of the accused and no other human being would have
had any chance/occasion to be aware of the said facts, in such a case the
Hon'ble Apex Court in the case of State of Rajasthan Vs. Thakur Singh7 has
observed as under:
"22. The law, therefore, is quite well settled that the burden of proving the
guilt of an accused is on the prosecution, but there may be certain facts
pertaining to a crime that can be known only to the accused, or are
virtually impossible for the prosecution to prove. These facts need to be
explained by the accused and if he does not do so, then it is a strong
circumstance pointing to his guilt based on those facts.
23. Applying this principle to the facts of the case, since Dhapu Kunwar
died an unnatural death in the room occupied by her and Thakur Singh,
the cause of the unnatural death was known to Thakur Singh. There is no
evidence that anybody else had entered their room or could have entered
their room. Thakur Singh did not set up any case that he was not in their
room or not in the vicinity of their room while the incident occurred nor did
he set up any case that some other person entered the room and caused
the unnatural death of his wife. The facts relevant to the cause of Dhapu
Kunwar's death being known only to Thakur Singh, yet he chose not to
disclose them or to explain them. The principle laid down in Section
106 of the Evidence Act is clearly applicable to the facts of the case and
there is, therefore, a very strong presumption that Dhapu Kunwar was
murdered by Thakur Singh.
(2014) Crl LJ 4047
24. It is not that Thakur Singh was obliged to prove his innocence or
prove that he had not committed any offence. All that was required of
Thakur Singh was to explain the unusual situation, namely, of the
unnatural death of his wife in their room, but he made no attempt to do
this".
26. In the present case, the accused and the deceased were last seen
together at 10-30.PM, and within 3 hours thereafter, she was no more. In this
incident, there is no chance for any other person to know, as to what had
happened in the closed room during the wee hours. By inference from the
circumstances that prevailed before and after the deceased's death, guilt or
innocence of the accused has to be established.
27. The prosecution has established that the (a) deceased, on 28-10-2008
till 10.30.pm, was with her parents, who visited the deceased's house to
celebrate Diwali, at 10.30 P.M. both PW-1 and 2 left for their home; (b) Soon
thereafter, the deceased was reported to have died at 1.30 A.M on
29-10-2008; (c) the accused himself went to the parents-in-law and informed
about the death; (d) the accused was present with the deceased on the night
preceding the death; (e) thereafter, the accused/appellant went absconding for
about three days, till he was arrested; (f) No explanation was given by the
accused in his examination under Sec.313 Cr. P.C, except, to utter "False" to
the suggestions that were made to him.
28. The above facts, connected, form a complete chain of incriminating
circumstances pointing towards the guilt of the accused. An inference can be
drawn that the chain of circumstances is complete, and considering the
circumstances, they do not create any iota of doubt or suspicion regarding the
involvement of any other person except the appellant/accused, and the said
presumption is in accordance with the principle laid down by the apex court in
the case of Raj Kumar Singh Vs State of Rajasthan (Supra 3), relied upon
by the learned counsel for the appellant. For the above reasons, we are of the
view that the circumstances relied upon by the prosecution form chain of
events points out towards the guilt of the accused.
29. Accordingly, the Criminal Appeal is dismissed by confirming the
conviction and sentence recorded by trial Court.
Before parting, we would like to place on record the endeavour made by
learned counsel Sri Ganga Kumar Chakravarthula, appearing for the
appellant, who took up the case as pro bono, has made strenuous efforts in
defending the appellant.
No costs. As a sequel, interlocutory applications, pending if any, shall
stand closed.
________________________
U.DURGA PRASAD RAO, J
________________________
KIRANMAYEE MANDAVA, J
01.07.2024
MVK
HON'BLE SRI JUSTICE U.DURGA PRASAD RAO
AND
HON'BLE SMT. JUSTICE KIRANMAYEE MANDAVA
CRIMINAL APPEAL NO: 908 OF 2016
01.07.2024
MVK
