Telangana High Court
Orsu Venkatesh, Mahabubnagar Dist. vs P.P., Hyd on 22 October, 2024
1
THE HONOURABLE SRI JUSTICE K.SURENDER
AND
THE HONOURABLE SHRI JUSTICE J.ANIL KUMAR
CRIMINAL APPEAL No.148 OF 2016
JUDGMENT:
(per Hon'ble Sri Justice K.Surender)
1. This appeal is filed aggrieved by the judgment dated
24.11.2015 in S.C.No.142 of 2015, passed by the Judge,
Family Court-cum-VIII Additional Sessions Judge,
Mahabubnagar, convicting the appellant for the offence
under Section 302 of IPC and sentenced to life
imprisonment for committing murder of his wife. He was
further convicted and sentenced to undergo Rigorous
Imprisonment for a period of (10) years, for the offence
under Section 307 of IPC for injuring his daughter/PW6
with an axe.
2. PW1, who is the mother of the deceased lodged a
complaint on 27.05.2014 at 06:30 A.M. In the said
complaint, she alleged that seven years prior to the
incident, her daughter/deceased was married to the
appellant. PW6 is the daughter of deceased and accused
and she is aged around 3 ½ years. On 27.05.2014, in the
early morning at 04:00 A.M., the elder brother of PW1's
son-in-law namely Swamaiah, S/o. Balaiah (not examined
in Court) has informed one Ravi, who is the son of PW1's
brother that some unknown persons have killed the
daughter of PW1 by cutting her throat. On knowing the
same, all of them went to the scene. When questioned by
PW1, PW6 who is her granddaughter has informed that the
accused has killed the deceased by cutting her throat with
a knife and when PW6 went in between, accused also
stabbed PW6 on her neck.
3. Basing on the said complaint, PW12 registered a case
against the accused and took up investigation. PW6 was
examined by PW11 around 05:15 A.M. on 27.05.2014 and
then, she was sent to Nilofer hospital for better treatment.
The police went to the scene of offence and conducted the
scene of offence panchanama and drafted the proceedings
in the presence of PWs.7 and 8. Thereafter, inquest
panchanama/Ex.P5 was conducted, however PWs.7 and 8
independent panch witnesses to inquest turned hostile to
the prosecution case. Later, the dead body of deceased
was sent for post mortem examination. Ex.P8 is Post-
Mortem Examination report. Ex.P9 is the FSL report and
Ex.P10 is the wound certificate of PW6. The police while
searching for the accused, apprehended him on
03.07.2014 by the Inspector of Police/PW12 with the help
of his personnel. Further, the accused confessed that he
had committed the murder. At his instance, MO.1/Knife
and MO.2/Shirt of the accused which was worn at the time
of committing the offence were seized. The said seizure
was behind the house of accused. Thereafter, the accused
was sent to judicial custody, after he was produced before
the jurisdictional Magistrate.
4. After completion of investigation, the Police filed
charge sheet against the accused for the offences under
Sections 302 and 307 of IPC before the Magistrate Court
concerned. The learned Magistrate committed the case to
the Sessions Judge.
5. After framing of charges, during the course of trial,
the learned Sessions Judge has examined PWs.1 to 12 and
marked Exs.P1 to P13. MOs.1 and 2 were also placed on
record by the prosecution.
6. Learned Sessions Judge found favour with the
prosecution version that it was the accused who had
committed the murder of the deceased and accordingly,
convicted the accused for both the offences under Sections
302 and 307 of IPC.
7. Learned Legal Aid Counsel appearing on behalf of
appellant would submit that the conviction was based on
the evidence of PW1, who was not an eye witness to the
incident. Though PW6, who is the daughter of deceased
and accused was examined in the Court, her statement
was closed without recording her evidence, since the
learned Sessions Judge found that she was not mature
enough to depose before the Court. In the absence of any
direct evidence, the conviction cannot be sustained.
8. On the other hand, learned Public Prosecutor
submits that since the accused is the husband of the
deceased, it has to be inferred that he was present in the
house and the burden is on the accused to prove his case
as to how the deceased died. In the absence of any
explanation, the trial Court has rightly convicted the
accused for committing the murder of his wife and also
trying to commit the murder of PW6, by injuring her with
an axe.
9. The complaint/Ex.P1 was lodged on 27.05.2014 at
06:30 A.M. by PW1. In the said complaint, she narrated
that she came to know that her daughter was murdered by
an unknown person. After receiving the information
through one Swamaiah and Ravi (who were not examined
in the Court), they went to the scene. They found the
deceased with cut injury on the throat. On enquiry, PW6
allegedly informed that the appellant caused injuries to
both the deceased and PW6. PW6 was examined by PW11
at around 05:15 A.M. on the very same day. PW11 issued
Ex.P10 which is wound certificate. In the said Ex.P10, it is
mentioned that the girl was referred by the Shadnagar
Police. However, the history regarding PW6 receiving
injuries was not stated. Only the diagnosis and referring
PW6 to Nilofer hospital was only mentioned. The
prosecution has failed to elicit during examination of PW11
regarding the history of injuries received by PW6.
10. The version of PW1 stating that the accused was
responsible is on the basis of information given by PW6.
The evidence is hearsay in nature and there is no
corroboration from any quarter to say that it was PW6 who
informed regarding the appellant's involvement in causing
injuries to the deceased. However, PW6 had stated to PW1
that it was accused who had caused injuries, the same
would have been stated before the Doctor. It is common
knowledge that the Doctor examining any patient would
ask as to how the injury was received. As already stated,
there is no history of the case in the wound certificate given
by PW11.
11. PW2 who is the paternal uncle of the deceased has
stated that they also went to the scene and found injuries
on the deceased. He was informed that the appellant had
killed the deceased. However, PW2 did not state that it was
PW6 who had given information. Further, in his cross
examination, PW2 stated that on the same day of incident
i.e., 27.05.2014 at 02:00 P.M., he had noticed the accused
in Police lock up. However, according to Investigating
Officer/PW12, the accused was arrested on 03.07.2014. It
is not the case of the prosecution that the accused had
absconded from the village. None of the witnesses who are
relied on by the prosecution stated that the accused had
absconded from the village. In fact, none of the
independent witnesses speak about the accused being in
the house on the night when the incident occurred. The
independent witnesses i.e., PWs.4 and 5 turned hostile to
the prosecution case. PW6 was not examined by the Court,
since she was not able to understand the proceedings.
PWs.7 and 8 who are the witnesses to the inquest
panchanama also turned hostile to the prosecution case.
The evidence of PWs.1 and 2 on whose basis conviction is
recorded, deposed on the basis of information given by
PW6. It is hearsay evidence. PW6 was not examined in
Court since she was unable to understand the proceedings.
12. After the arrest of the accused on 03.07.2014,
according to PW12 and the independent mediator/PW9,
the appellant led them to his house and the knife used and
shirt worn by accused at the time of incident were seized.
It is highly improbable that MO.1 and blood stained shirt of
the accused/Mo.2 would be behind the house for nearly
1½ months. The said open recovery behind the house
cannot be believed. MOs.1 and 2 were not sent for FSL
examination for reasons best known to the investigating
officer.
13. The prosecution case, as already discussed above is
unreliable and there is no proof provided by the
prosecution, beyond reasonable doubt against the accused
to suggest in any manner that it was the accused alone
who had caused the death of deceased.
14. During the course of 313 Cr.P.C. examination, the
accused stated that he was not present when the incident
happened and he had gone to the house one hour
thereafter. The accused was arrested and he was subjected
to third degree methods. Thereafter, he confessed that he
has committed the crime. The version of the accused
during 313 Cr.P.C. examination that he was illegally
detained by police appears credible when evidence of PW2
is considered. PW2 stated that the appellant was taken
into custody on the day of incident and was found in police
lock up on the date of complaint. The said aspect was not
disputed by prosecution during his examination in Court.
15. In view of the above, since the prosecution failed to
prove its case against the accused, benefit of doubt is
extended to the accused.
16. Accordingly, the Criminal Appeal is allowed. The bail
bonds of the accused shall stand discharged.
_________________
K.SURENDER, J
___________________
J. ANIL KUMAR, J
Date: 22.10.2024
mnv/plp
