Chilla , Pastham Yakalaxmi vs The State Of Telangana
2023 Latest Caselaw 4084 Tel

        THE HONOURABLE SRI JUSTICE K.SURENDER

                CRIMINAL APPEAL No.226 OF 2021

JUDGMENT:

This Criminal Appeal is filed by the Appellant/Accused

aggrieved by the conviction recorded by the Special Sessions

Judge for Trial of Cases under SC/STs (POA) Act-cum-VII

Additional Sessions Judge, Warangal, in S.C.No.130 of 2020

dt.10.05.2021, convicting the accused for the offence punishable

under Sections 304, Part-II of the Indian Penal Code and

sentencing to undergo rigorous imprisonment for a period of seven

years and also to pay a fine of Rs.100/-.

2. Heard both sides. Perused the record.

3. Briefly, the case of the prosecution is that the

appellant/accused married the deceased six years prior to his

death. The appellant/accused gave birth to a son and daughter.

The deceased was beating the accused stating that the son was

not born to him and she was having an affair. The said act of

beating was on a daily basis. The deceased used to come home

drunk and beat the child and also the appellant/accused. PW1 in

his complaint stated that he came to know about the appellant

assaulting the deceased with an Axe on the head which resulted in

his death.

4. On the basis of the complaint lodged by PW1 who is the

brother of the deceased the Police registered the case and filed

charge sheet for the offences under Section 302 of the Indian

Penal Code.

5. The learned Sessions Judge having examined the witnesses

PWs.1 to 12 and going through the exhibits marked for the

prosecution which are Exs.P1 to P10 found that the offence is

made out under Section 304 part-II of the Indian Penal Code and

accordingly sentenced. The said acts of the deceased in coming

home drunk and assaulting the accused was narrated by PWs.1,

3, 6, 11 and 12.

6. Learned Counsel appearing for the appellant/accused would

submit that PW1 is not an eye-witness to the incident. The Police

have not taken any steps to send the Axe for the purpose of FSL

examination to conclude that the blood found on the Axe was of

the deceased. Further, all the witnesses have stated that the

appellant had informed them that she had killed him, however, no

evidence was produced by the prosecution to show that the

appellant was present in the house when the death had taken

place. Only on the basis of the alleged extra judicial confession

made to PWs.1, 3, 11 and 12, conviction was recorded. It is stated

by the witnesses that they found the deceased dead in the house.

The appellant informed them that she had assaulted with an Axe

when the deceased came home drunk and started beating her. The

said statements of the witnesses cannot be considered to infer

that the appellant had assaulted the deceased with an Axe.

7. On the other hand learned Additional Public Prosecutor

would submit that the evidence on record and the witnesses

examined would go to show that it was the appellant who had

committed the act of assaulting the deceased with an Axe.

Corroborative evidence was collected from the scene. M.O.1-Axe

contains blood stains and it was seized at the instance of the

appellant. In the said circumstances, Criminal Appeal has to be

dismissed.

8. It is an admitted fact by all the witnesses who were

examined, that the deceased used to suspect the character of the

appellant and also used to say that the son was not born to him.

He was beating the appellant on a daily basis after coming home

drunk. According to the witnesses, the appellant was in the house

when the incident had taken place. If the appellant was present in

the house, under Section 106 of the Evidence Act, the burden is

on the appellant/accused to explain under what circumstances,

the deceased died. Except denial, there is no other evidence to

suggest that the appellant was not present in the house.

9. The witnesses PWs.1, 3, 6, 11 and 12 stated that the

appellant has assaulted her husband since he had come home

drunk and started beating her. There is no reason as to why the

witnesses who were neighbours and well-known to the appellant

would speak false against her. As already stated she was present

in the house when the witnesses went there and she had informed

the witnesses about the incident seeking help from them.

10. Assault by the appellant/accused is apparent, in the

background of continuous differences in between the appellant

and the deceased and statements of witnesses. PW.12 stated that

the appellant used to leave her son with PW.12, since the

deceased used to come home drunk and beat the child also.

11. Post conviction, the appellant was in jail along with the son

and daughter. Apparently, there are no other relatives who would

take care of the children. On the basis of the children being lodged

in jail along with the appellant, sentence was suspended and bail

was granted. The alleged attack even according to the prosecution

was a result of the deceased beating her, daily, suspecting her

character and also beating the son stating that he was not born to

him. Since there is no one else to take care of the children and in

the peculiar facts of the present case, this Court deems it

appropriate to reduce the sentence of imprisonment to the period

already undergone.

12. Accordingly, the Criminal Appeal is partly allowed reducing

the sentence of imprisonment of the appellant/accused to the

period already undergone. Since the appellant/accused is on bail,

her bail bonds shall stand discharged.

Miscellaneous applications pending, if any, shall stand

closed.

_________________ K.SURENDER, J Date: 17.11.2023 tk