Telangana High Court

Siri Mani , Mandasailu, Medak Dt., vs The State Of Telangana, Rep Pp., on 22 October, 2024

      THE HONOURABLE SRI JUSTICE K.SURENDER
                      AND
     THE HONOURABLE SHRI JUSTICE J.ANIL KUMAR


          CRIMINAL APPEAL No.1124 OF 2015

JUDGMENT:

(per Hon'ble Sri Justice K.Surender)

This appeal is filed aggrieved by the judgment dated

16.09.2015 passed in S.C.No.340 of 2014 on the file of VIII

Additional District & Sessions Judge, at Medak, convicting

the appellant/accused for the offence punishable under

Section 302 of Indian Penal Code (for short 'IPC') and

sentenced to undergo rigorous imprisonment for life and to

pay a fine of Rs.100/-, in default of payment of fine to

undergo simple imprisonment for three months.

2. Heard Sri Peri Prabhakar, learned legal aid counsel

for the appellant/accused and Sri Arun Kumar Dodla,

learned Additional Public Prosecutor for respondent-State.

3. The case of the prosecution is that PW1, who is the

brother in law of the appellant, lodged complaint/Ex.P1

with the Police on 20.06.2014, at around 8.00 a.m. PW1

mentioned in Ex.P1 that the deceased and the appellant

were husband and wife fighting amongst themselves, and 2 KS, J & JAK, J

also appellant suspecting his wife of having relation with

someone else. On 20.06.2014, at around 6.00 a.m., PW2,

the daughter of the deceased, and another daughter of the

deceased, who was not examined, went to the house of

PW1 and informed him regarding the appellant hacking

their mother with an axe. Immediately, PW1 and others

went to the appellant's house and found the dead body of

the deceased.

4. The police commenced investigation and went to the

scene of offence. Scene of offence panchanama was

conducted and said proceedings were drafted as Ex.P3.

Thereafter, inquest proceedings were also conducted which

was drafted as Ex.P.5. The body was sent to the

postmortem examination. The doctor found the following

injuries:

"a) Bleeding from left ear

b) Chop Injuries over left temporal side measuring 10*6*5 (Laceration), 6*3*3 and also 5*2*3.

c) Chop injuries over right temporal side measuring 2*3*2 (Laceration)

d) Fracture skull 3 KS, J & JAK, J

e) No other external injuries found over the body and all the injuries are ante mortem."

5. The opinion of the doctor is that the death was

caused on account of head injury leading to hypovolumic

shock and cardiac arrest. The time of the death was 12 to

15 hours prior to the postmortem examination. The

postmortem examination was conducted at 2.00 p.m., on

20.06.2014.

6. The appellant was found absconding and the police

on information apprehended the appellant on 23.06.2014,

i.e., after three days from his house and pursuant to his

confession, Axe/MO-6 was seized from his house. PW6 was

the independent witness who witnessed the confession of

the accused and seizure proceedings.

7. Having concluded the investigation, charge sheet was

filed for the offence under Section 302 of IPC.

8. Learned Sessions Judge examined the witnesses 1 to

9 on behalf of the prosecution. Further, the prosecution

has also placed on record Exs.P1 to P10. The seized axe is

MO-6 and from the scene MOs.1 and 2, which are burnt 4 KS, J & JAK, J

beedi pieces and empty match box, were seized. MOs.3 to 5

are wearing apparel of the deceased.

9. Learned Sessions Judge having placed reliance on the

evidence of PW2, found that the murder was committed by

the appellant.

10. Learned legal aid counsel appearing on behalf of the

appellant argued that the evidence of PW2, when excluded

from consideration, on the basis of her contradictory

evidence, there is no other evidence to suggest that it was

the appellant who had committed the murder of the

deceased. In fact it is the case of the appellant that there

was robbery by some persons in the village and murder of

the deceased would have been committed by such persons.

The axe/MO-6 was seized from the appellant's house after

3 days. However, the said axe was sent for FSL

examination and FSL did not find any blood stains on the

axe, though it was stated in the panchanama that there

were blood stains on the axe/MO-6.

11. Learned counsel further argued that PW2 in her cross

examination stated that she did not see her father

attacking her mother. Further, PW2 stated that appellant 5 KS, J & JAK, J

was taken by the police in the morning itself. If at all the

version of PW2 was to be believed that the appellant was

found in the house on the date of complaint, the

prosecution has deliberately suppressed his arrest and

shown his arrest after 3 days. It was suggested by the

defense counsel, to the investigating officer during cross

examination that from 20.06.2014 to 23.06.2014, the

appellant was illegally detained.

12. On the other hand, learned public prosecutor argued

that if at all the case of the appellant is that robbers might

have committed the assault on the deceased, there is no

explanation for the silver jewelry found on the body. In the

said circumstances, the question of some others, other

than the appellant causing death of the deceased does not

arise.

13. The crucial evidence that has been relied upon by

prosecution is the evidence of PW2. PW2 when brought to

the Court stated that she does not know her age. It was

recorded by learned Sessions Judge as follows:

"Question by Court:

I am studying Vth class in Government school Amdoor Village. I do not know my surname or age.

6 KS, J & JAK, J

I do not know what is this place I came to this place to say that my father hacked my mother with axe. No body asked me to say that. If I say that, police will catch my father. The police may shoot my father. I don't want my father.

My father may take away us and sell us. I tell the truth. If I say false police will catch me. I take oath to speak truth. Oath is administered. The witness is answering to the questions properly, which are known to her and stating that she does not know the facts unknown to her. The witness is understanding the questions properly."

14. As seen from the evidence of PW2, who was a child

witness, learned Sessions Judge has not recorded any

questions which were put to the child witness before

commencing the recording of statement, to convince

himself that the witness was a competent witness. In fact

PW2 stated that she does not know which place she was in

and further without being asked any question, she went on

to say that her father has hacked her mother with an axe.

That itself would go to show that child was tutored even

prior to bringing her to the witness box. Without there

being any question regarding involvement of her father, the

witness had stated that she had come to this place to say

that appellant hacked her mother.

7 KS, J & JAK, J

15. The evidence of PW2 cannot be considered and from

her cross examination, she admitted that at around 1.00

a.m. in the morning, the murder was committed. She

further admitted that she did not see her father attacking

her mother. However, she went to sleep and the next day

morning, she went to PW1 and informed about the

incident. PW2/child witness, having witnessed such

gruesome and bloody assault on her mother with an axe,

and going to sleep till the morning and next date meeting

PW1 appears to be highly improbable.

16. However, the accused admits that he was present in

the house, when the deceased was killed. Learned counsel

appearing for the appellant would submit that though the

appellant was present in the house, he does not know how

the deceased was killed. Having admitted that he was in

the house, the burden is on the appellant to say how the

death occurred. As seen from the scene of offence

panchanama and sketch drawn by police, the house has

only two rooms and there is only one entrance to the first

room. The first room shows that it is the place of kitchen

and also the pooja place. From the first room, there is

entrance to the 2nd room in which the dead body was 8 KS, J & JAK, J

found. Apparently the said room is used for sleeping. Even

for a moment accepting the version of the appellant that he

does not know how the deceased was killed, since there is

only one entrance to the house, the appellant's defense as

suggested to witnesses PW1 and PW3 that thieves/robbers

must have killed the deceased, cannot be accepted.

17. The Hon'ble Supreme Court in Trimukh Maroti

Kirkan vs State Of Maharashtra 1 held as follows:

"15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.

22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen

(2006) 10 SCC 681 9 KS, J & JAK, J

together or the offence takes placed in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. In Nika Ram v. State of Himachal Pradesh, it was observed that the fact that the accused alone was with his wife in the house when she was murdered there with 'khukhri' and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt.

In Ganeshlal v. State of Maharashtra the appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 Cr.P.C. The mere denial of the prosecution case coupled with absence of any explanation were held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife. In State of U.P. v. Dr. Ravindra Prakash Mittal the medical evidence disclosed that the wife died of strangulation during late night hours or early morning and her body was set on fire after sprinkling kerosene. The defence of the husband was that wife had committed suicide by burning herself and that he was not at home at that time. The letters written by the wife to her relatives showed that the husband ill- treated her and their relations were strained and further the evidence showed that both of them were in one room in the night. It was held that the chain of circumstances was complete and it was the husband who committed the murder of his wife by 10 KS, J & JAK, J

strangulation and accordingly this Court reversed the judgment of the High Court acquitting the accused and convicted him under Section 302 IPC. In State of Tamil Nadu v. Rajendran, the wife was found dead in a hut which had caught fire. The evidence showed that the accused and his wife were seen together in the hut at about 9.00 p.m. and the accused came out in the morning through the roof when the hut had caught fire. His explanation was that it was a case of accidental fire which resulted in the death of his wife and a daughter. The medical evidence showed that the wife died due to asphyxia as a result of strangulation and not on account of burn injuries. It was held that there cannot be any hesitation to come to the conclusion that it was the accused (husband) who was the perpetrator of the crime."

18. Once the appellant admits that he was in the house,

when the incident has taken place, mere denial or stating

that he does not know how the death occurred and it might

have been committed by thieves/robbers will not relieve

him of the burden which is cast on him under Section 106

of Evidence Act. It cannot be said that the burden is

discharged when such a suggestion of robbers killing the

deceased is made. As already discussed, the house has two

rooms with only one entrance and death happened in the

2nd room. When the appellant was in the house, it is the

duty cast upon him to explain as to how the deceased died.

11 KS, J & JAK, J