Telangana High Court
Chelikani Narasimha Rao , Shettipally ... vs State Of Telangana on 24 October, 2024
1
HON'BLE SRI JUSTICE K.SURENDER
And
HON'BLE SRI JUSTICE ANIL KUMAR JUKANTI
CRIMINAL APPEAL No.1075 OF 2015
JUDGMENT:
(per Hon'ble Sri Justice K.Surender)
1. The present appeal is filed by A1 and A2 aggrieved by their
conviction under Section 302 IPC vide judgment in S.C.No.55 of
2015 dated 18.11.2015 passed by the Judge, Family Court-cum-
Additional Sessions Judge at Khammam. However, A2 was released
after the Government granted remission. Accordingly, appeal of A1
is only heard.
2. Briefly, the case of the prosecution is that the deceased is the
husband of A2. Both are agricultural coolies and had children i.e.,
P.Ws.3, 4 and another. A2 developed physical intimacy with
A1/appellant. On knowing the relationship in between A2 and the
appellant, the deceased assaulted A2.
3. A2 allegedly conspired with A1 to eliminate the deceased. It is
further the case of the prosecution that on 06.01.2014, A1 took the
deceased outside. After some time, the deceased was brought home
by A1 on his shoulder. A1 carried the deceased on his shoulder
and laid him on the bed and covered him with blanket. Then, A1
and A2 talked with each other and the appellant went away. The
next day morning, A2 started crying and informed others that the
deceased died. P.W.1 who is the sister of the deceased, filed
complaint with the police. On the basis of the said complaint, police
started investigation. On the same day i.e., 06.01.2014, P.W.17
took up investigation. Scene of offence was photographed, which is
Ex.P2 and scene of offence panchanama was also conducted which
is Ex.P3. Inquest proceedings were concluded and drafted as Ex.P4.
Thereafter, the dead body was sent for postmortem examination.
Having concluded investigation, charge sheet was filed.
4. Learned Sessions Judge examined P.Ws.1 to 18 and marked
Exs.P1 to P13 on behalf of the prosecution. Further, M.Os.1 to 6
were also brought on record during the course of trial by the
prosecution. The learned Sessions Judge found favour with the
evidence of P.Ws.3 and 4, who are the daughter and son of the
deceased and A2 and convicted both A1 and A2.
5. Learned Senior Counsel appearing on behalf of the appellant
would submit that the only evidence is that of P.Ws.3 and 4, who
are the children of the deceased and A2. The version given by them
is highly improbable since the deceased could not have been
brought on the shoulders of the appellant and laid on the bed. It is
practically impossible and the children have stated against A1 only
on account of tutoring prior to their evidence in the Court. Learned
counsel relied on the judgment of Hon'ble Supreme Court in the
case of Pradeep v. State of Haryana 1 , wherein it was held as
follows:
"9. It is a well settled principle that corroboration of the testimony of a child
witness is not a rule but a measure of caution and prudence. A child witness of
tender age is easily susceptible to tutoring. However, that by itself is no ground to
reject the evidence of a child witness. The Court must make careful scrutiny of the
evidence of a child witness. The Court must apply its mind to the question whether
there is a possibility of the child witness being tutored. Therefore, scrutiny of the
evidence of a child witness is required to be made by the Court with care and
caution.
10. Before recording evidence of a minor, it is the duty of a Judicial Officer to ask
preliminary questions to him with a view to ascertain whether the minor can
understand the questions put to him and is in a position to give rational answers.
The Judge must be satisfied that the minor is able to understand the questions and
respond to them and understands the importance of speaking the truth. Therefore,
the role of the Judge who records the evidence is very crucial. He has to make a
proper preliminary examination of the minor by putting appropriate questions to
ascertain whether the minor is capable of understanding the questions put to him
and is able to give rational answers. It is advisable to record the preliminary
questions and answers so that the Appellate Court can go into the correctness of the
opinion of the Trial Court."
2023 SCC OnLine SC 777
6. Learned Senior Counsel also relied on the judgment of
Division Bench of this Court in the case of Sugali Dungavath
Lakshma Naik @ Anda and others v. State of Andhra Pradesh 2.
7. On the other hand, Sri Arun Kumar Dodla, learned Additional
Public Prosecutor would submit that the witnesses P.Ws.3 and 4,
who are the children of A2, would not have spoken against their
mother. The deceased was taken outside by A1 and brought back
the deceased. It is for A1 and A2 to explain as to how the deceased
died. Learned Sessions Judge has rightly concluded that only on
account of A1 and A2, the deceased died.
8. P.W.3 was 11 years old when her evidence was recorded.
P.W.4's age is also shown as 11 years. Learned Sessions Judge had
recorded that P.W.3 was a student of 8th class and aged 11 years
and when questioned, the witness stated that she will speak truth
only. Therefore, oath was administered.
9. Under proviso to sub-section (1) of Section 4 of the Oaths Act,
1969, in case of a child witness under the age of 12 years, unless
satisfaction is recorded, oath cannot be administered to the child
2020 (1)ALD (Crl.) 172 (A.P)
witness. The recording of the learned Sessions Judge before
administering oath to P.Ws.3 and 4 is as follows:
P.W.3-
"The witness is student of 8th class, aged 11 years. When questioned the
witness stated that she will speak truth only under oath. Therefore, oath
is administered."
P.W.4-
"The witness is student of 6th class, aged 11 years. When questioned the
witness stated that he will speak truth only under oath. Therefore, oath is
administered."
10. Both under Section 118 of the Evidence Act and proviso to
Section 4(1) of the Oaths Act, learned Sessions Judge ought to have
put preliminary questions to satisfy himself regarding the witnesses
being able to understand the proceedings in Court. The learned
Sessions Judge has not recorded specifically as to what was asked
by the Judge to record his satisfaction that P.W.3 and P.W.4 were
capable of understanding the proceedings.
11. P.Ws.3 and 4 stated that the day prior to 06.01.2014, A1 took
his father outside and brought him back fully drunk on his
shoulder, laid him on bed and covered with blanket. The next day
morning, A2 was crying and when asked, A2 informed that the
deceased died. In the cross-examination, P.Ws. 3 and 4 denied the
suggestions put by the learned counsel regarding their statement
being incorrect.
12. P.W.1, who is the sister of the deceased and complainant
turned hostile to the prosecution case. P.W.2, neighbor stated that
at 6.00 a.m, he heard A2 crying and found the deceased dead.
P.W.5 is another neighbor, who went to the house of A2 on hearing
A2 crying. Both P.Ws.2 and 5 deposed that when enquired with A2,
she told that A1 killed the deceased as the deceased had become
hurdle for continuing relation in between A1 and A2.
13. P.W.7 stated that on coming to know about the death of the
deceased when he went to the house of A2, A2 was beaten by
villagers and she escaped. Further, P.W.7 stated that he gave a Sim
card of his brother to A2 on her request on 28.12.2013. P.W.8
stated that the appellant was a womanizer and drunkard, as such,
he stopped giving him work.
14. P.W.10 stated that on 05.01.2014, A1 took her husband's
motor cycle stating that he wanted to go to the market and on the
next day morning on 06.01.2014, he returned the motor cycle.
Again on 29.01.2014, the appellant took the motor cycle and
returned on the next day. P.Ws.11 and 12 speak about the
appellant and A2 having sexual relationship. P.W.13 is the inquest
panch, who found injuries on the body of the deceased around neck
and face.
15. P.W.15/PME doctor found the following injuries on the
deceased:
"1. Contusion 7 x 1 cm around the neck.
2. multiple abrasion 1 x 1 cm on the dorsum of nose
3. abrasion of 1 x 1 cm both the cheeks
4. contusion of 2 x 2 cm on the chest."
According to P.W.15, the injuries were antemortem in nature
and hyoid bone was sent for FSL examination. After receiving the
FSL report, Ex.P6, P.W.15 gave opinion that the cause of death was
due to Mechanical asphyxia due to strangulation. He also stated
that the contusions around the neck of the deceased are possible if
strangulated by a kerchief.
16. According to the Investigating Officer/P.W.17, the appellant
confessed that he killed the deceased in the Mango garden of Pittala
Krishna Kumar and drafted scene of offence panchanama in the
presence of P.Ws.14 and 16. The scene of offence panchanama was
marked as Ex.P10. Both P.Ws.14 and 16 turned hostile to the
prosecution case. Empty liquor bottle MO7 was recovered at the
scene. Ex.P10 scene of offence pancahanama is dated 30.01.2014.
17. P.Ws.3 and 4 who are the children were also examined during
inquest proceedings. It is mentioned in the inquest report Ex.p4
that on the basis of the statements given by blood relatives and
witnesses, which included both P.Ws.3 and 4, the deceased was
brought home on the shoulders by A1, laid on the cot and A1 went
away. In the morning around 6.00 a.m, A2 started crying. The other
witnesses found that the deceased was murdered and accordingly,
complaint was filed by P.W.1.
18. Except the confession of the appellant, there is no evidence to
speak about the alleged murder by the appellant in the Mango
garden of Pittala Krishna near Mukundapuram village. The said
Pittala Krishna Kumar who owned the Mango Garden is not
examined. No reason is given as to why the owner of the Mango
Garden was not examined. In the cross-examination of Investigating
Officer/P.W.17, he stated as follows:
"Mukundapuram is at a distance of 2 km to Chalamappagudem
village. It is true there are residential houses commercial
establishment between Mukundapuram and Chalamappagudem
village."
19. If at all the mango garden is at a distance of nearly 2 kms from
the house and the deceased was killed in the mango garden, there
is no reason why the appellant would carry the dead body for 2 kms
all the way to the house and place the dead body in the house
risking of being seen while carrying the dead body. It is admitted
that there are residential houses and commercial establishments in
between Mukundapuram village where the alleged murder was
committed and Chalamappagudem village where the house of the
deceased is situated and dead body was found. It is highly
suspicious and improbable that the dead body would be carried for
2 kms on a two wheeler by one person. If at all the murder was
committed in the Mango garden, body would have been left there
and no reason is given why A2 carried the dead body all the way,
two kilometers away. Even accepting that A1 brought the deceased
home that night, it is not proved that by that time the deceased was
dead. Death of deceased after A1 brought him home cannot be
ruled out.
20. As already discussed, it is impossible to carry the dead body of
a person of 5'.6'' inches on a two wheeler for 2 kms at the risk of
being seen. It is not the case of P.Ws.3 and 4 that after placing the
body of the deceased on the bed, the appellant had strangulated the
deceased. P.W.3 in her cross-examination admitted that she cannot
say who brought the deceased home as it was night. Though P.W.3
stated in chief examination that deceased and A2 used to quarrel
regarding relation between A1 and A2, however, in cross-
examination P.W.3 admitted that there were disputes since
marriage but does not know the reason for disputes. P.W.4 in
examination in chief stated that when questioned by neighbors in
the morning of 06.01.2014, A2 stated that A2 with the help of A1
killed the deceased as he was a hurdle to continue illicit intimacy.
P.Ws.3 and 4 were examined one year and eight months after the
incident. As already discussed, no questions were put by Sessions
Judge before examining P.Ws.3 and 4 and record satisfaction. In
the said circumstances, benefit of doubt is extended to the
appellant.
21. In the result, the judgment of trial Court in S.C.No.55 of 2015
dated 18.11.2015 is hereby set aside and the appellant is acquitted.
Since the appellant is on bail, his bail bonds shall stand
discharged.
22. Accordingly, Criminal Appeal is allowed.
__________________
K.SURENDER, J
____________________________________
ANIL KUMAR JUKANTI, J
Date : 24.10.2024
kvs
