Telangana High Court
Paladi Mahesh, Hyd vs S.H.O., Saroornagar P.S. on 29 December, 2023
Author: K. Lakshman
Bench: K. Lakshman
HON'BLE SRI JUSTICE K. LAKSHMAN
AND
HON'BLE SMT. JUSTICE K. SUJANA
CRIMINAL APPEAL No.801 OF 2014
JUDGMENT:
(Per Hon'ble Sri Justice K. Lakshman)
Heard Mr. M. Laxman Rao, learned counsel for the appellant -
accused No.1 and Mr. T.V. Ramana Rao, learned Additional Public
Prosecutor appearing on behalf of the respondent - State.
2. The appellant herein is Accused No.1 in S.C. No.346 of
2009 and he filed the present Criminal Appeal challenging the
judgment dated 14.02.2014 passed by learned III Additional District
and Sessions Judge, Ranga Reddy District in Sessions Case No.346 of
2009.
3. Vide the aforesaid judgment, trial Court found accused No.1
guilty of the offences under Sections - 302 and 201 of IPC and
accordingly convicted and sentenced life imprisonment for the offence
under Section - 302 of IPC and rigorous imprisonment for three (03)
years for the offence under Section 201 of IPC. Accused No.2 is the
mother of accused No.1 and she and accused No.1 were found not
guilty of the offence punishable under Section - 498A of IPC.
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4. The case of the prosecution is as under:
i) Accused No.1 is the husband of Smt. P. Geetha (hereinafter
called as 'the deceased') and their marriage was solemnized in the
year 1996. They are blessed with two male children viz., Mr. Vinay
Kumar and Mr. Karthi.
ii) At the time of marriage, the parents of the deceased gave
cash of Rs.1,25,000/- and 10 tolas of gold ornaments. Dissatisfied
with the said dowry, accused No.1 on the instigation of his mother,
accused No.2, demanded the deceased and her parents to pay
additional dowry.
iii) Accused No.1 used to suspect the fidelity of the deceased
and disputes arose between them. Then, accused No.1 bore grudge on
the deceased and decided to get rid of her and waiting for an
opportunity.
iv) On a fateful day i.e., on the night of 08.08.2008 after having
dinner, Mr. P. Vinay Kumar, elder son, was slept in the bed room,
while the younger son, the deceased and accused No.1 slept in the
front bed room. In the mid-night of 08/09.08.2008, accused No.1
woke up, shifted his younger son to the bed room, where the elder son
was sleep and at about 0300 hours, accused No.1 picked up a pestle
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found in the corner of the house, assaulted and beat on the head of the
deceased indiscriminately while she was in sleep which resulted her
sustaining bleeding head injury and died on the spot.
v) Accused No.1 then placed the body in a gunny bag, washed
the floor having blood stains with surf and again cleaned with clothes.
He also washed the blood stained pestle and clothes by applying soap.
Accused No.1 also applied white-wash on the walls where blood was
spotted. Later, he shifted the body into his Maruthi Car bearing
registration No.AP 16H 2913 and dumped the body on the bank of
Bairamalguda Tank and fled away. He also applied grease/oil on the
rear seat where blood stains were found without giving scope to
anybody to get suspicion. On the way, the vehicle went off road, then
called the mechanic and shifted to Bharath Motors Garage and then
fled away.
vi) On 10.08.2008 at about 1700 hours, accused No.1 made a
call to PW.1 and informed that the deceased died in a road accident in
the limits of Maheshwaram to deviate their attention and switched off
his phone. Thus, accused No.1 committed the aforesaid offences.
vii) PW.1 suspected accused No.1 and lodged a complaint with
Saroornagar Police Station. On receipt of the complaint lodged by
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PW.1, the Police registered a case in Crime No.951 of 2008 under
Section 'woman missing' and took up investigation.
5. On completion of investigation, the police filed a charge
sheet against both the accused for the offences punishable under
Sections - 498A, 302 and 201 of IPC against accused No.1 and
Section - 498A of IPC against accused No.2. Thereafter, the case was
committed to the Court of Sessions which was taken on file vide S.C.
No.346 of 2000 for the said offences.
6. The trial Court framed the charges under Sections - 498A,
302 and 201 of IPC against both the accused. Both the accused denied
the charges and pleaded not guilty and prayed for trial.
7. During trial, the prosecution has examined as many as 11
witnesses, viz., PWs.1 to 11 and marked Exs.P1 to P13 documents and
MOs.1 to 5 were exhibited. No oral evidence was let in on behalf of
the accused, however Ex.D1 was marked.
8. After completion of trial and on appreciation of evidence,
both oral and documentary, the trial Court found accused No.1 guilty
of the aforesaid charges framed against him and accordingly convicted
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him of the aforesaid charges, while accused Nos.1 and 2 were found
not guilty of the charges under Section - 498A of IPC.
9. Feeling aggrieved by the said conviction, accused No.1
preferred the present appeal.
10. Mr. M. Lakshman Rao, learned counsel for the appellant -
accused No.1 contends as follows:
i) There is contradiction in the statement made by PW.6
under Section - 161 of Cr.P.C. and his deposition;
ii) PW.8 did not send MOs.1 to 5 for Forensic Science
Laboratory. The said fact was admitted by PW.8 -
Investigating Officer during cross-examination. Even
then, the prosecution filed FSL report (Ex.P12) through
PW.9. There is no evidence to the effect that who sent
MOs.1 to 5 to FSL. Even then, trial Court relied upon the
same and convicted the appellant;
iii) There is also contradiction in the statement made by
PW.4 before the Police under Section - 161 of Cr.P.C.
and his deposition before the trial Court with regard to
bringing the subject vehicle (MO.5) to the Shed. Though
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there was no seizure, the trial Court did not consider the
said fact;
iv) There is contradiction with regard to the colour of MO.5 -
small cloth, and the same was not considered by the trial
Court;
v) There is no corroboration of evidence of prosecution
witnesses;
vi) There is no eye-witnesses to the incident;
vii) The trial Court recorded conviction basing on
circumstantial evidence. The circumstantial evidence is
not forming complete chain and the link is missing. Even
then, the trial Court recorded conviction against accused
No.1 without considering the said aspects;
viii) The Investigating Officer did not examine the tenants of
accused No.1 and the deceased and also the brother,
sister-in-law of the accused, who were also present in the
said house;
ix) PW.3, minor son of accused No.1 and the deceased, did
not speak about the offence. Even then, the trial Court
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relying on the last seen theory recorded conviction
against the appellant herein;
x) There is contradiction with regard to the registration of
FIR. As per the prosecution, the complaint was lodged
on 10.08.2008 at 2200 hours, whereas in Ex.P10 - FIR, it
is mentioned as 11.08.2008. Therefore, the said FIR is
defective;
xi) The prosecution did not send MOs.1 to 5 to FSL for
analysis either through PW.8 or PW.9 or Mr. C.
Prabhakar Reddy, PC 571 of Saroornagar Police Station,
through whom MOs were sent to FSL, Red Hills,
Hyderabad. Thus, the trial Court erred in convicting the
appellant; and
xii) PW.4 is the neighbor of PW.1 and, therefore, he is not an
independent witness.
11. On the other hand, learned Additional Public Prosecutor
would contend as follows:
i) PW.8 received the complaint Ex.P1 on 10.08.2008 and
the same was registered on the same day at 10.00 P.M.
which is evident from Ex.P1. In Ex.P1 - FIR, on the top,
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it is mentioned as 11/08/2008 due to inadvertence. It is
only typographical mistake as admitted by PW.8 -
Investigating Officer. However, in column No.3 (b) of
Ex.P10 - FIR, it is specifically mentioned the date as
10.08.2008 and time of receipt of Ex.P10 as 2200 hours.
In Ex.P4 - crime detail form, the date is mentioned as
10.08.2008. Therefore, accused No.1 cannot take
advantage of the same. Accused No.1 informed PW.1,
brother of the deceased and brother-in-law of accused
No.1, that on 10.08.2008 the deceased died due to
accident and, therefore, switched of his phone.
Thereafter, PW.1 got suspicion and, therefore, he along
with his parents came to the scene of offence, observed
that the Chappal of the deceased were there at the house
of the deceased and accused No.1 and white wash on the
walls etc. He got suspicion and lodged complaint to the
police on 10.08.2008 itself at 2200 hours;
ii) In fact, MOs.1 to 5 were sent to FSL by PW.8 himself,
but due to paucity of time between the incident and the
deposition i.e., the incident is on the intervening night of
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08/09.08.2008 and the deposition was recorded on
06.06.2013 i.e., five (05) years later. However, accused
No.1 did not object while marking Ex.P12 - FSL report
through PW.9. In fact, accused No.1 did not cross-
examine PW.9 at all. The said aspects were considered
by the trial Court;
iii) Even minor contradictions in the statement made by
PW.6 before the police recorded under Section - 161 of
Cr.P.C. and his deposition before the trial Court cannot
be considered due to paucity of time. However, the crime
vehicle was marked as MO.5;
iv) PW.4 though resident of Afzalgunj, he came to
Saroornagar to attend function and he has categorically
admitted that he does not know PW.1 and, therefore, he is
an independent witness. Admittedly, the deceased, wife
of accused No.1, was in the house along with accused
No.1, PW.3 and LW.6, their sons on the intervening night
of 08/09.08.2008. Therefore, accused No.1 has
knowledge about the same and, therefore, he has to
explain the commission of offence in terms of Section -
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106 of the Indian Evidence Act, 1872, which accused
No.1 failed to do;
v) PW.7 gave Ex.P9 - postmortem examination report,
wherein he gave his opinion that the cause of death to the
best of his knowledge and opinion is due to head injury
and time since death is about two-three days prior to his
PME. The same is also supported by Ex.P9;
vi) Accused No.1 suspected the fidelity of his deceased wife,
who worked as Teacher for some time, hatched a plan to
do away her life and, accordingly, taking advantage of
the deceased sleeping on the intervening night of
08/09.08.2008, attacked on her with MO.1 - Pestle and
committed murder brutally. Therefore, the prosecution
proved the motive beyond reasonable doubt;
vii) Prosecution also proved destruction of evidence beyond
reasonable doubt; and
viii) Considering the entire evidence, both oral and
documentary, the trial Court recorded conviction against
the appellant - accused No.1 herein. There is no error in
it.
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12. In view of the aforesaid rival submissions, there is no
dispute that the appellant - accused No.1 is the husband of the
deceased. Their marriage was performed in the year 1996. They
blessed with two-male children i.e., LW.5 and PW.3. According to
the prosecution, on 08.08.2003 after having dinner, elder son of the
appellant and deceased (LW.5) slept in the bed room, while PW.3,
their younger son along with accused No.1 and the deceased slept in
the front bed room. In the mid-night on 08/09.08.2008, accused No.1
woke up PW.3, shifted him to the bed room where their elder son was
sleeping. The appellant herein picked up pestle found in the corner of
the house, assaulted and hit on the head of the deceased
indiscriminately while she was in sleep, which resulted bleeding
injuries on the head of the deceased and she died on the spot. Thus,
all of them i.e., the appellant herein, the deceased, PW.3 and LW.5
were in the same house on 08.08.2008. Accused No.1 informed his
brother-in-law, PW.1, brother of the deceased on 10.08.2008 at about
5.00 P.M. over phone that the deceased met with an accident at
Maheshwaram and disconnected the phone. Therefore, he got
suspicion. PW.1, his parents and brother rushed to the house of
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accused No.1 and found the chappal of the deceased. They also found
patches of white-wash on the walls of the bed room of the deceased.
13. Accused No.2 was present and informed that accused No.1
and the deceased went away from the house on 09.08.2008 in the
morning time. The brother of accused No.1 and his wife were also
there in the house along with accused No.1. They did not give any
reply. They got suspicion and lodged a complaint with Police,
Saroornagar. On receipt of Ex.P1 - complaint, the police registered a
case in Crime No.951 of 2008 under the head 'woman missing' and
entrusted the investigation to Mr. S. Narsimha, Sub-Inspector of
Police, who visited the scene of offence and informed PW.8 that he is
having suspicion. PW.8 immediately rushed to the scene of offence
and examined Mrs. P. Rama Devi, co-sister of the deceased, both sons
of the appellant and the deceased. The appellant was also present.
PW.8 suspected the appellant and interrogated him and recorded his
confession in the presence of two mediators i.e., PW.4 and Mr.
Seetharam Arjun Kumar. The appellant - accused No.1 confessed
commission of offence at 0300 hours on 09.08.2008. Accused No.1
led PW.8 to a lake near Bairamalguda, where he had thrown the body
of the deceased. PW.8 saw a gunny bag in which they found body of
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the deceased. He prepared scene of offence panchanama in the
presence of the mediators and shifted the body to Osmania General
Hospital. Thereafter, the appellant led PW.8 to Bharath Motors
Garage, Champapaet, where they have seized the crime vehicle in
which accused No.1 shifted the dead body to Bairamalguda Lake. He
has also recorded the statement of the owner of the said Bharath
Motors. Then, he has altered section of law from woman missing to
Sections - 498A, 302 and 201 IPC. The police arrested accused No.1
on 11.08.2008 and produced before the Magistrate concerned.
14. The aforesaid facts would reveal that the appellant herein
informed PW.1, brother of the deceased that the deceased met with an
accident at Maheshwaram and, thereafter he switched of his phone.
The appellant herein did not make any effort to lodge a complaint to
the police with regard to the alleged accident of the deceased at
Maheshwaram. On the other hand, he has informed PW.1, brother of
the deceased, over phone. He did not inform the said fact to the
mother of the appellant who is accused No.2. Therefore, the conduct
of the appellant is highly doubtful.
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15. There is no explanation from the appellant with regard to
the alleged accident of his wife at Maheshwaram. He has not lodged
complaint with police with regard to the said alleged accident.
Admittedly, the appellant and the deceased and their children had their
dinner on 08.08.2008 and slept in the house. There is no explanation,
much less plausible explanation from the appellant with regard to the
alleged accident of the deceased at Maheshwaram. Having knowledge
about the said accident and the incident, it is the duty of the appellant
to inform the same to the police concerned in terms of Section - 106 of
the Evidence Act. In the present case, the appellant failed to discharge
the said burden.
16. It is relevant to extract Section - 106 of the Evidence Act
and the same is as under:
"106. Burden of proving fact especially within
knowledge.--When any fact is especially within
the knowledge of any person, the burden of
proving that fact is upon him.
Illustrations
(a) When a person does an act with some intention
other than that which the character and
circumstances of the act suggest, the burden of
proving that intention is upon him.
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(b) A is charged with travelling on a railway
without a ticket. The burden of proving that he had
a ticket is on him."
17. PW.7, the doctor, gave his opinion stating that the cause of
death is due to head injury and time since death is about two-three
days prior to his PME. Ex.P9 is the PME report. Nothing was elicited
from PW.7 during cross-examination. On the other hand, PW.7
during cross-examination categorically admitted that the injury was
not possible by a simple fall on hard surface and it is not possible in
accident as there would be other associated injuries in the accident.
Thus, the cause of death was due to head injuries.
18. PW.3 is the minor son of the appellant and the deceased
and he deposed that he was studying third class when his mother died.
On the date of incident, his father, mother, junior paternal uncle and
parental grandmother were in the house. On the next day of the
incident, his father informed the police when police brought him to the
house that he assaulted his mother with pestle and killed her. During
cross-examination, he has admitted that he saw his mother on the
night of 8th day of that month lastly. The appellant was not looking
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after them properly. He was assaulting. Therefore, PW.3 has last
seen his mother and father in the said house on 08.08.2008.
19. PW.4 is the panch witness for the confession of the accused
No.1, seizures and inquest. He is the resident of Ashok Bazar,
Afzalgunj, Hyderabad, where PWs.1 and 2 reside. According to
learned counsel for the appellant, he is not an independent witness and
he is known to PWs.1 and 2. However, during cross-examination,
PW.4 admitted that PW.2 is also resident of the same street, where he
resides. He has no acquaintance with PW.2. He was in the house of
his brother Mr. Yadagiri as there was marriage at P & T Colony,
Saroornagar, and at that time the police called him. He does not know
LW.9, another panch witness. Therefore, it cannot be said that he is
not an independent witness. Just because he is also resident of Ashok
Bazar, Afzalgunj, it cannot be said that he is known to PWs.1 and 2
and he is not an independent witness.
20. PW.6 is the Mechanic in Bharath Motors. He deposed that
four (04) years back in the month of August, accused No.1 brought his
Maruthi 800 Car bearing registration No.AP 16H 2919 to their shed.
Then, he went to Karmanghat, where the car was parked. As the
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battery was down, he started the car with another battery and brought
the car to the shed. They have informed accused No.1 that the battery
has to be replaced. Accused No.1 went away to bring the amount for
replacement of battery, but he did not turn up. Two (02) days
thereafter, the police came and seized the car. The police informed
him that the accused used the car to transport the dead body of his
wife after killing her.
21. However, referring to the deposition of PW.6 and his
statement recorded by the police under Section - 161 of Cr.P.C.,
wherein he stated that accused took Mr.Pratap Reddy, owner of the
shed, to Karmanghat and his owner changed the battery and took the
car to their shed. Therefore, according to learned counsel for the
appellant, there is discrepancy with regard to getting the vehicle to the
shed.
22. It is relevant to note that the incident is dated
08/09.08.2008, whereas the statement of PW.6 was recorded on
11.08.2008 by the Investigating Officer and his deposition was
recorded on 19.12.2012 almost after four (04) years four (04) months.
Therefore, minor variation with regard to the seizing of vehicle can be
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ignored. The appellant cannot take advantage of the said minor
contradictions.
23. With regard to the contention of learned counsel for the
appellant that PW.8 did not send MOs.1 to 8 to the FSL, during cross-
examination, PW.8 admitted that he did not send MOs.1 to 5 to FSL.
However, FSL report was marked through PW.9, successor of PW.8.
It was marked as Ex.P12. There was no objection from the appellant
while marking Ex.P12. There is no cross-examination on the same by
the appellant. However, perusal of the said FSL report would reveal
that the seized articles were sent to FSL through Mr. C. Prabhakar
Reddy, PC 571 on 22.09.2008.
24. It is further contended by learned counsel for the appellant
that PW.1 admitted that he filed a declaration given by accused No.1
and handed over the children to him in a civil case. Along with
declaration, the accused also handed over the FDRs initially to the
police and the police, in turn, handed over the same to PW.1.
Accused No.1 handed over those FDRs at 11 A.M. The accused
brought the said FDRs to the police station and handed over the same.
He has admitted the said fact in the civil case.
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25. PW.3, minor son of the appellant and the deceased, during
cross-examination, he has admitted that he came to know that his
father deposited Rs.6.00 lakhs in the form of fixed deposit in his
name.
26. It is relevant to note that PW.1 during cross-examination
categorically admitted that he saw accused No.1 on 11.08.2008
morning time in police station.
27. As discussed above, the Investigating Officer arrested
accused No.1 on 11.08.2008. In fact, the appellant was present at the
scene of offence on 10.08.2008 when Investigating Officer (PW.8)
visited the scene of offence. Therefore, it appears that there were
some compromise talks between the appellant family and the parents
etc., of the deceased keeping in view the welfare of the minor
children, the appellant cannot take advantage of the same.
28. Perusal of the Ex.P12 - FSL report would reveal that blood
was detected on item Nos.5 to 8. Origin of blood stains on item
Nos.5, 6 and 8 is of human. However, blood is not detected on item
Nos.1 to 4. Origin of blood stains on item No.7 could not be
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determined, while blood group of blood stains on item Nos.5, 6 and 8
could not also be determined.
29. The aforesaid facts would reveal that there is no eye-
witness to the incident. The entire case rests on circumstantial
evidence. Conviction can be recorded basing on circumstantial
evidence if circumstances form complete chain. Prosecution has to
prove the chain of all circumstances in commission of offence beyond
reasonable doubt. The said principle was also laid down by the
Hon'ble Supreme Court in Sharad Birdhichand Sarda v. State of
Maharashtra 1; Prem Singh v. State (NCT of Delhi) 2; and Ravi
Sharma v. State (Government of NCT of Delhi) 3. In the present
case, prosecution has proved all the circumstances which formed
complete chain and there is no missing of any link.
30. It is settled law that however grave the offence may be,
accused cannot be convicted based on suspicion. In the present case,
prosecution has proved the guilt of the accused beyond reasonable
doubt.
. (1984) 4 SCC 116
. (2023) 3 SCC 372
. (2022) 8 SCC 536
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31. There should not be any missing link and the entire events
shall form the chain. Considering the said aspects and also motive,
the trial Court found that accused No.1 committed murder of his wife
and thrown the dead body in Bairamalguda tank. Thus, accused No.1
was found guilty of the offences punishable under Sections - 302 and
201 IPC. There is no error in the said finding. The findings of the
impugned judgment are on proper reasons and on consideration of
entire evidence, both oral and documentary.
32. Defect in conducting investigation is no ground to acquit
the accused, more particularly, where other circumstances are proved
guilt of the accused beyond reasonable doubt.
33. In a matter like this, minor contradictions of the witnesses
cannot be considered. As rightly contended by learned Additional
Public Prosecutor that the incident was dated 09.08.2008 and most of
the witnesses deposed in the years 2012 and 2013 i.e., after lapse of
4½ years. In the light of the same, accused No.1 cannot take
advantage of minor contradictions and deviations of prosecution
witnesses.
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34. In the light of the aforesaid discussion, the appellant failed
to establish any ground to interfere with the impugned judgment.
Thus, the appeal fails and the same is liable to be dismissed.
35. The present Criminal Appeal is accordingly dismissed
confirming the conviction and sentence of imprisonment imposed by
learned III Additional District and Sessions Judge, Ranga Reddy
District in Sessions Case No.346 of 2009 against the appellant -
accused No.1, vide judgment dated 14.02.2014
As a sequel, miscellaneous applications, if any, pending in the
appeal shall stand closed.
_________________
K. LAKSHMAN, J
_________________
K. SUJANA, J
29th December, 2023
Mgr
