Choppadandi Shanker, vs The State Of A.P., Rep By Pp.,
2022 Latest Caselaw 4125 Tel

                HON'BLE SRI JUSTICE K.SURENDER

                CRIMINAL APPEAL No.734 OF 2009
JUDGMENT:

1. The appellant is convicted for the offence under Section 304

part II IPC and sentenced to undergo rigorous imprisonment for a

period of seven years and also to pay fine of Rs.1,000/-, in default,

to suffer simple imprisonment for a period of six months vide

judgment in S.C.No.92 of 2008 dated 30.01.2009 passed by the III

Additional Sessions Judge (FTC) at Asifabad. Aggrieved by the

same, present appeal is filed.

2. The case of the prosecution is that P.Ws.1 and 2 are the

parents of the deceased. The appellant is the husband of the

deceased. According to the prosecution case, the deceased was

married to one Pullaiah 15 years prior to her death and they had

two children. After the marriage, due to disputes, the deceased

gave divorce to her husband and living with her parents P.Ws.1 and

2. Five years prior to the incident, the appellant developed intimacy

with the deceased, for which reason, the deceased and the appellant

married. They have four years old child at the time of incident. The

appellant used to harass the deceased for money and also beat

hear suspecting her character of having intimacy with others. On

27.02.2005, P.Ws.1 and 2, parents of the deceased, P.Ws.3 and 4,

the children of the deceased, went to Pochamma temple to perform

puja. At about 1.00 p.m, when they came back, they saw the

appellant coming out of the house and when they went inside, the

dead body of the deceased was found on a cot. Suspecting that it

was the appellant who killed her, a complaint was filed.

3. Learned counsel for the appellant submits that the case of the

prosecution cannot be believed for the reason of several

inconsistent statements made by the witnesses. The said

inconsistencies go to the root of the prosecution case and the case

cannot be believed. None of the witnesses P.Ws.1 to 4 are eye

witnesses to the incident. However, they say that they found the

appellant outside the house and when they inside, they saw the

deceased dead on a cot. Regarding recovery, P.Ws.3 mentioned that

the rod was recovered from the scene of offence. However, according

to the Investigating Officer, it was recovered at the instance of the

appellant. Since there are no eye witnesses to the incident, the

appellant has to be acquitted of the charge.

4. Learned Public Prosecutor submits that there is no reason

why P.Ws.1 and 2, who are parents-in-law and P.Ws.3 and 4

children of the appellant and deceased would make false statement

against the appellant. Only logical conclusion that can be drawn is

that the appellant had inflicted injuries in the back ground of there

being constant harassment as the appellant was suspecting the

character of the deceased. For the said reason, the conviction

recorded by the trial Court cannot be interfered with.

5. The case of the prosecution is that there were differences

between the deceased and the appellant. The appellant suspecting

the character of the deceased for having relation with others and for

the said reason, the appellant was beating and harassing the

deceased.

6. By the time P.Ws.1 to 4 went to the house, the appellant was

coming out of the house and when questioned, he stated that he

had killed the deceased because she was immoral and characterless

lady. The said statement of the appellant can be considered to be

an admission made immediately after the incident and admissible.

In the back ground of the consistent evidence of P.Ws.1 to 4 that

the appellant was subjecting the deceased to continuous

harassment and on the date of incident, it was the appellant, who

was alone present in the house, the appellant being responsible for

the death of the deceased cannot be ruled out.

7. It is not the case of the appellant that someone else might

have murdered or killed the deceased and meanwhile the appellant

went there. Under Section 106 of the Indian Evidence Act, it is for

the appellant to explain the circumstances under which the

deceased died. Since there was no one else in the house except the

appellant and the deceased, the burden of stating and explaining

the death is on the appellant, which is not discharged. In the said

circumstances, the evidence of P.W.3 that the rod was found at the

scene and the Investigating Officer stating that it was recovered at

the instance of the appellant, is of no consequence. The evidence

produced by the prosecution proves beyond doubt that it was the

appellant who inflicted injuries on his wife suspecting her

character.

8. The incident is of the year 2005 and 17 years have gone by

since the date of incident, the conviction under Section 304 part II

IPC, there is no minimum sentence prescribed. In the said

circumstances, this Court is of the considered opinion that the

sentence of imprisonment be reduced to one year.

9. In the result, the conviction recorded by the trial Court vide

impugned judgment is confirmed. However, the appellant is

convicted and sentenced to undergo rigorous imprisonment for a

period of one year. The trial Court shall take steps to secure the

presence of the appellant and sent him to prison to serve out the

sentence. The remand period undergone by the appellant shall be

set off under Section 428 of Cr.P.C.

10. Accordingly, the Criminal Appeal is partly allowed. As a

sequel thereto, miscellaneous applications, if any, shall stand

closed.

_________________ K.SURENDER, J Date:11.08.2022 kvs

HON'BLE SRI JUSTICE K.SURENDER

CRIMINAL APPEAL No.734 OF 2009

Dated: 11.08.2022

kvs