Telangana High Court

Kethavath Chandar, Basheerbad Mandal, ... vs The State Of Ap., Rep. By Pp., High Court, ... on 10 September, 2024

                HON'BLE SRI JUSTICE K.SURENDER

                CRIMINAL APPEAL No.1494 OF 2011
JUDGMENT:

1. The appellant was convicted for the offence under Section 304 Part-

I and 498-A IPC and sentenced to undergo rigorous imprisonment for a

period of eight years and three years respectively vide judgment in

S.C.No.753 of 2008, dated 18.11.2011 passed by the X Additional

District Sessions Judge (FTC), Ranga Reddy District at L.B.Nagar.

2. The appellant/A1 was married to the deceased. The deceased was

daughter of P.W.2 and sister of P.Ws.1 and 3. The marriage of the

deceased and the appellant was performed on 09.05.1999. At the time of

marriage, Rs.2.00 lakhs cash, five tulas of gold and other articles were

given as dowry. They were blessed with two children. Thereafter, the

appellant was addicted to consuming alcohol and was without any

avocation. The deceased was being harassed for getting additional dowry.

Panchayat was held in the presence of P.Ws.4, 5 and 8, who advised the

appellant not to ill-treat the deceased. Though the appellant undertook

to take care of the deceased, he continued harassing her. On 02.09.2008,

the deceased was found dead. P.W.1, who is the elder brother of the

deceased came to know about the death, lodged complaint with the

police. On the basis of investigation and evidence collected during

investigation, charge sheet was filed under Section 302 and 498-A IPC.

3. Learned Sessions Judge, having considered the evidence of P.Ws.1

and 3, who are brothers and P.W.2/father of the deceased and also the

evidence of son/P.W.7 and other circumstantial evidence witnesses

found that the offence committed by the appellant falls within Section

304 Part-I IPC and not under Section 302 IPC. Accordingly, the appellant

was sentenced to imprisonment as stated above.

4. Sri K.Sarvabhouma Rao, learned counsel appearing for the

appellant argued that there is no evidence regarding the appellant

causing injuries to the deceased. All the witnesses, P.Ws.1 to 5 who are

circumstantial evidence witnesses have not stated anything about the

appellant causing injuries to the deceased. Only evidence is that of the

son of the appellant, who was examined as P.W.7. P.W.7 was declared as

hostile to the prosecution case. He did not state that he has seen his

father i.e., the appellant causing injuries to the deceased. Only for the

reason of the deceased being found in the house, dead with injuries, it

cannot be said that it was the appellant, who caused her death in the

absence of any tangible evidence.

5. On the other hand, learned Assistant Public Prosecutor would

submit that sufficient reasons are given by the learned Sessions Judge

for recording conviction, which are reasonable. The hostility of P.W.7/son

is understandable and his hostility will not have any bearing on the case

since the deceased was found in the house.

6. Having gone through the record, P.Ws.1 and 3/brothers,

P.W.2/father stated that the deceased was married to the appellant and

he was harassing her for additional dowry in drunken condition. Having

come to know about the death of the deceased, they went and found that

she was lying in the bed room on the cot with injuries. P.W.5 is another

independent witness who stated about harassment by the appellant.

P.Ws.1 to 5 stated that the children, P.W.7 and his younger brother

informed that the appellant had beaten the deceased to death.

7. However, the younger son was not examined. P.W.7/elder son was

examined. He was declared hostile to the prosecution case. He stated

that around 8.30 p.m, he returned home after tuition, found that the

deceased was sleeping on the bed. Since she was not responding, P.W.7

informed the appellant, who in turn rang up to his sister Jayamma. The

child was treated as hostile to the prosecution case.

8. Though P.W.7 was declared hostile to the prosecution case, his part

of the evidence, which is reliable can be looked into. Even according to

P.W.7, when he went home he found his mother was on the bed without

responding and he informed the appellant. Apparently, the appellant was

present in the house and the deceased was found dead with injuries. To

the extent of the deceased and the appellant being present in the house,

the evidence of P.W.7 can be considered. It is not the case of the

appellant that he was not present in the house or that any third person

had entered into the house and caused the death of his wife. When it is

proved by the prosecution that only the deceased and the appellant were

present in the house and the deceased was found dead due to injuries,

the burden is on the appellant to explain the cause of death of the

deceased. The burden shifts on to him under Section 106 of Indian

Evidence Act.

9. The Hon'ble Supreme Court in the case of Balvir Singh v. State of

Uttarakhand (Criminal AppealNo.301 of 2015, dated 06.10.2023)

observed as follows:

"34. Section 106 of the Evidence Act referred to above provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. The word "especially" means facts that are pre-eminently or exceptionally within the knowledge of the accused. The ordinary rule that applies to the criminal trials that the onus lies on the prosecution to prove the guilt of the accused is not in any way modified by the rule of facts embodied in Section 106 of the Evidence Act. Section 106 of the Evidence Act is an exception to Section 101 of the Evidence Act. Section 101 with its illustration:

(a) lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible or at any rate disproportionately difficult for the prosecution to establish the facts which are, "especially within the knowledge of the accused and which, he can prove without difficulty or inconvenience".

38. In Trimukh Maroti Kirkan v. State of Maharashtra reported in (2006) 10 SCC 681, this Court was considering a similar case of homicidal death in the confines of the house. The following observations are considered relevant in the facts of the present case:

"14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecutions [1944 AC 315 : (1944) 2 All ER 13 (HL)] -- quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh [(2003) 11 SCC 271 : 2004 SCC (Cri) 135].) The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:

"(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him."

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.

xxx xxx xxx

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 together or the offence takes place 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."

10. As already discussed, the appellant was present in the house when

P.W.7 found the dead body of his mother. Except a bald denial, the

appellant has failed to discharge his burden to explain as to how the

deceased died when the appellant and the deceased were only present in

the house, when deceased was found dead. Even in Section 313 Cr.P.C

examination, when accused was asked to state about anything he has to

say, the appellant replied that he has nothing to state. In view of the

appellant being the only person present in the house when the death

occurred and no explanation is given as to how the death occurred, the

finding of the trial Court cannot be disturbed.

11. However, keeping in view that the incident is of the year 2008, the

sentence of imprisonment under both counts is reduced to two years.