Telangana High Court
C.Subramanyam , Subbu vs State Of Telangana on 15 April, 2025
THE HONOURABLE SRI JUSTICE K.SURENDER
AND
THE HON'BLE SRI JUSTICE E.V.VENUGOPAL
CRIMINAL APPEAL Nos. 2004 and 2074 OF 2018
COMMON JUDGMENT:
(Per Hon'ble Sri Justice K.Surender)
The Criminal Appeal No.2004 of 2018 is filed by the
appellant-accused No.1, and Criminal Appeal No.2074 of
2018 is filed by the appellant-accused No.2, questioning the
Judgment dated 14.06.2018 in S.C.No.330 of 2016, passed
by the Metropolitan Sessions Judge, Hyderabad, wherein
the accused Nos.1 and 2 were convicted and sentenced for
the offences under Sections 302 and 380 read with 34 of
Indian Penal Code, 1860 (for short "IPC").
2. Heard P.Prabhakar Reddy, learned counsel for the
appellants-accused Nos.1 and 2 and Sri M.Vivekananda
Reddy, learned Assistant Public Prosecutor representing
Sri Arun Kumar Dodla, learned Additional Public Prosecutor
for the respondent-State, and perused the record.
3. The case of the prosecution, in brief, is that A1 is the
son of Madan Mohan Rao (deceased) and A2 was working as
a cook in the house of the deceased. Both A1 and A2 were
friends. The deceased lived in Flat No.401, Vinar Sohani
Apartments, Gudi Malkapur, Hyderabad, and A1 was also
living with him. The wife of the deceased died 14 years ago
in an accident, and the wife of A1 also passed away under
natural circumstances. A1 was prosecuted and convicted for
the offences under Sections 304(B) of IPC. After being
released from jail, A1 was dependent on his father for
money.
4. On 19.10.2015, at around 7:30 AM, A1 and A2
informed other residents of the flat that the deceased had
died. Thereafter, the arrangements for the funeral were
undertaken.
5. PW1 is the defacto complainant and brother-in-law of
the deceased. PW1 lodged a complaint on 19.10.2015 at
8:00 PM, with the police. In the said complaint, he narrated
that on the same day, around 11:30 AM, he received a
phone call from PW5, who is the daughter of the deceased
and the sister of A1, informing him that she had received
information about the death of the deceased. PW1 then
called A1 on his number; however, A2 picked up the phone.
A2 handed the phone to A1 and A1 informed PW1 that the
deceased had died and the funeral would be conducted
within one hour. PW1 asked A1 to wait until PW5 arrived
from Pune. PW1 also went to the house of the deceased
around 4:00 PM. A1, A2, and other relatives were present.
The body of the deceased was brought down to the ground
floor for a bath before being taking for the funeral. PW1 and
others observed black spots on the body and noticed
injuries. Immediately, PW1 went to the police station and
lodged a written complaint. Having received the complaint,
the police went to the apartment complex and the body was
shifted to Osmania General Hospital. The body of the
deceased was sent for postmortem examination. The
postmortem doctor, who is PW12, found the following
injuries:-
1) Contused abrasion of 20x15 cms over front of upper
chest and front of lower neck in the mid line and left side of
the neck.
2) Contused abrasion of 10x5 cms below the left side of the
mandible.
3) Contused abrasion 15x10 cms over right shoulder.
4) Contused abrasion 10x5 cms over front and left forearm
middle 1/3.
5) Contused abrasion 15x5 cms front of right forearm.
6) Contused abrasion 8x5 cms over back of right lower ¼
forearm.
7) Contusion of 2x1 cms over the neck muscle along the
thyroid cartilage.
8) Both horns of thyroid cartilage are fractured surrounded
by contusion.
9) Cervical vertebral fracture dislocation c6 and 7
surrounded by 5x3 cms contusion.
According to PW12, the death was due to manual
strangulation.
6. After the postmortem, the body was handed over to
the relatives for the purpose of funeral. During the course of
investigation, PW13 found that there were withdrawals from
the account of the deceased by A1. A1 and A2 were arrested
on 27.11.2015. They were interrogated, and at their
instance, the police seized the passbook and cheque book of
the deceased from A1.
7. Since the investigation revealed that both A1 and A2
were seen going in and out of the apartment on the date of
the incident, police filed a charge sheet against A1 and A2
for committing murder of the deceased.
8. Learned Sessions Judge found that the circumstantial
evidence adduced by the prosecution proved the guilt of
both A1 and A2. Learned Sessions Judge relied on the
following circumstances:-
1) Both A1 and A2 were present with the deceased on the
night of 18.10.2015 until the morning of 19.10.2015, as
established by the evidence of the watchman, PW3.
2) A1 was in a hurry to perform the funeral on the same
day.
3) A1 and A2 informed about the death of the deceased to
the other residents of the apartment.
4) An amount was withdrawn from the account of the
deceased by A1, and the passbook and cheque book of the
deceased were found in possession of A1 after his arrest.
5) A1 and A2 attempted to complete the funeral on the same
day. However, when the body was sent for postmortem, the
doctor confirmed that the cause of death was homicide.
6) A1 brought a woman and wanted to keep her in the
apartment. However, the deceased refused. A1 then took
that woman to the watchman's room and asked PW3 to give
her shelter. However, PW3 refused.
9. Learned counsel appearing on behalf of the appellants
submitted that the entire case of the prosecution rests on
the evidence of PW3, who stated that A1 and A2 were going
inside and coming out of the flat of the deceased on the
night. However, the said evidence of PW3 is a complete
omission. In fact, the statement of PW3 cannot be
considered as 'last seen' evidence, since none of the
witnesses stated that they had seen the deceased and the
appellants together. For the said reason, the prosecution
failed to prove that the appellants were present in the house
when the incident took place. He further submitted that had
PW3 stated about the presence of A1 and A2, they would
have been arrested on the same day, i.e., on 19.10.2015,
and the police would not have waited so long to arrest the
appellants.
10. On the other hand, the learned Assistant Public
Prosecutor submitted that it is not the defense of A1 that he
did not reside with his father. Even in his examination
under Section 313 Cr.P.C., he did not provide any reasons
nor state that he was not present in the house when the
incident took place. In the said circumstances, the
conclusion drawn by the learned single judge is correct.
11. According to PW1, A1 was living with the deceased in
the house. PW2 also stated that A1 and the deceased
resided together in flat No.401, and that A1 was habituated
to drinking alcohol. PW1 further stated that A1 and the
deceased were staying together, and A2 was the cook
engaged by the deceased. PW4, another independent
witness, stated about A1 and A2 informing others about the
death of the deceased. PW5, the sister of the deceased,
stated about the death of the deceased and also mentioned
that A1 was in a hurry to perform the funeral. PW6, another
independent witness, stated that the deceased and A1 were
living alone in their apartment.
12. As seen from the cross-examination of all the
witnesses and also the examination of the accused under
Section 313 Cr.P.C., A1 never disputed staying with the
deceased in the apartment. He also did not suggest to any of
the witnesses that he was not present in the house on the
evening of 18.10.2015.
13. Learned counsel for the appellants submitted that the
entire evidence of PW3 regarding A1 and A2 coming and
going from the apartment on 18.10.2015 is an
improvement. The omission is proved through the
Investigating Officer. Once the evidence of PW3 is not
considered, as it is a complete omission, and a subsequent
development during the trial, there is no other evidence to
connect A1 with the incident or to infer that A1 was present
in the house on 18.10.2015.
14. The said argument cannot be considered. As already
discussed, all the witnesses have stated that A1 was living
along with the deceased in the said apartment. A1 did not
take any specific defense about not staying with his father
or that he was not present on 18.10.2015. Once the
prosecution has proved that A1 was staying along with his
father in the said apartment, the burden shifts to A1 to
explain under what circumstances the homicidal death of
the deceased occurred. The burden shifts onto A1 under
Section 106 of the Indian Evidence Act, 1872.
15. Admittedly, A1 and A2 informed the other members in
the apartment complex and also relatives about the funeral
of the deceased. Injuries on the body were apparent and
were observed by PW1 and others. However, A1 did not
suppress the homicidal death and, in fact, claimed that the
deceased died of natural causes.
16. The burden that shifts onto the accused can be
discharged by preponderance of probabilities. However,
such a burden can only be discharged when the accused
provides a convincing explanation. Mere denial by A1 about
the knowledge of the death of the deceased or that he was
not present in the house will not absolve him of the burden
that shifts onto him under Section 106 of the Indian
Evidence Act, 1872. A1 failed to discharge the burden
shifted onto him under Section 106 of the Indian Evidence
Act, 1872.
17. According to the evidence of the Investigating Officer,
the omission was in regard to A1 and A2 coming in and out
of the apartment. However, the Investigating Officer stated
that PW3 stated about A1 and A2 being present near the
apartment during the statement made under Section 161 of
Cr.P.C. In the background of A1 staying with the deceased
in the apartment, the said omission, which was elicited
through the Investigating Officer, is of no consequence.
However, the said omission does have bearing on the
presence of A2. The presence of A2 is only spoken to by
PW3, who spoke about his presence near the apartment on
the date of the incident, i.e., on 18.10.2015. To the extent of
the presence of A2 on 18.10.2015, it remains doubtful
about A2 being involved in the homicidal death of the
deceased. Unlike A1, no burden is shifted onto A2 to prove
his innocence or explain about the death of the deceased.
Accordingly, benefit of doubt is extended to A2.
18. Accordingly, the Criminal Appeal No.2004 of 2018
filed by accused No.1 is dismissed, and Criminal Appeal No.
2074 of 2018 filed by accused No.2 is allowed. Accordingly
the conviction of the appellant-accused No.2 in S.C.No.330
of 2016 is hereby set aside. The bail bonds of accused No.2,
if any, furnished by him, shall stand cancelled. The fine
component remains unaltered.
Miscellaneous Petitions, pending if any, shall stand
closed.
_______________________
JUSTICE K.SURENDER
___________________________
JUSTICE E.V. VENUGOPAL
Date: 15.04.2025
pss
THE HONOURABLE SRI JUSTICE K.SURENDER
AND
THE HON'BLE SRI JUSTICE E.V.VENUGOPAL
CRIMINAL APPEAL Nos. 2004 and 2074 OF 2018
Date: 15.04.2025
pss
