Ontipuli Gopi , Gopaiah, Krishna Dt., vs The State Of Telangana, Rep Pp.,
2025 Latest Caselaw 2533 Tel

Telangana High Court

Ontipuli Gopi , Gopaiah, Krishna Dt., vs The State Of Telangana, Rep Pp., on 25 February, 2025

                HON'BLE SRI JUSTICE K.SURENDER
                                And
              HON'BLE SRI JUSTICE ANIL KUMAR JUKANTI
                 CRIMINAL APPEAL No.220 OF 2017
JUDGMENT:

(per Hon'ble Sri Justice K.Surender)

1. The appellant/A1 was convicted and sentenced to undergo life

imprisonment for the offence under Section 302 of IPC vide

judgment in S.C.No.86 of 2014 dated 18.01.2017 passed by the

Special Sessions Judge-cum-VII Additional District and Sessions

Judge at Mahabubnagar. Aggrieved by the same, present appeal is

filed.

2. Briefly, the case of the prosecution is that on 22.03.2011, at

9:00 PM, the CD file in Cr. No. 20/2011 under Sections 304-B, 201

read with 34 of IPC of Gampalagudem PS, Krishna District, was

received at Jadcherla Police Station on the point of jurisdiction

through the proper channel, along with the Memo dated 21.03.2011

from the Superintendent of Police, Mahbubnagar.

3. The complainant, PW1, father of Smt. Ontipuli Nagalaxmi

(hereinafter referred to as the 'deceased'), lodged a written

complaint at Gampalagudem PS on 22.02.2011. In his complaint,

marked as ExP1, he stated that he is a resident of Penuganchiprolu

village and had performed the marriage of the deceased with A1 on

24.11.2010. One week after the marriage, the deceased went to her

in-laws' house at Gampalagudem village. Subsequently, the

deceased was taken by A1 (husband of the deceased), A2 (father-in-

law), A3 (mother-in-law), A4 (brother-in-law), and A5 (wife of A4) to

Bureddypally, Jadcherla, for manufacturing bricks. PW1 further

stated in ExP1 that at the time of marriage, he had given a dowry of

₹20,000/-. The deceased had informed him over the phone that A1

to A5 were harassing her for additional dowry and that they also

used to beat her daily.

4. One week before the incident, PW1, PW4 (wife of PW1), and

their son went to Jadcherla, where the deceased informed them

about the torture and harassment she was facing. While weeping,

she requested PW1 to take her back. However, when PW1 was

about to take the deceased with him, A1 to A5 intervened and

convinced him that they would not harass or beat the deceased and

would take care of her properly. They also assured him that they

would bring the deceased to Penuganchiprolu village after one

week. Believing their assurances, PW1 returned to his village.

However, PW1 again received phone calls from the deceased stating

that her husband and in-laws had intensified their torture and

harassment for additional dowry. Amidst this, on 20.02.2011, A5

informed PW4 that the deceased had died, that they were bringing

her body to Gampalagudem village, and asked PW4 to come and see

the body. PW4 conveyed this information to PW1 when he returned

home. PW1 and PW4 became suspicious of A1 to A5, believing that

they had ill-treated the deceased and murdered her by

administering poison. In Ex.P1, PW1 also alleged that A1 to A5 had

conspired to bring the deceased's body to Gampalagudem village to

bury it without informing the police at Jadcherla. However, their

relatives objected to this attempt. Upon receiving the complaint,

PW10 (SI of Police, Gampalagudem PS) registered a case in Cr. No.

20/2011 under Sections 304-B, 201 read with 34 of IPC, issued

FIR-ExP8, and took up the investigation.

5. During the course of the investigation, PW10 requested the

Tahsildar of Gampalagudem village to visit the scene of the

incident, i.e., the house of the accused at Gampalagudem village, to

conduct an inquest over the deceased's body, as the post-marital

period of the deceased was within seven years of marriage, and to

record the statements of witnesses and blood relatives. PW10

visited the house of the accused at NTR Colony, Gampalagudem

village, where the deceased's body was kept and conducted

inquiries. Meanwhile, the Tahsildar of Gampalagudem village went

to the scene and conducted an inquest over the deceased's body in

the presence of mediators (LWs 12 and 13) and PW9, and

subsequently sent the body to Specialist Area Hospital, Tiruvuru,

for postmortem examination. Later, PW11 conducted the autopsy

and preserved the deceased's viscera for chemical analysis and

report.

6. Thereafter, PW10 transferred the CD file to Jadcherla PS on

the point of jurisdiction through the proper channel. Upon receiving

the CD file, LW18 (Inspector of Police, Jadcherla PS) re-registered

the case as Cr. No. 95/2011 under Sections 304-B, 201 read with

34 of IPC, and issued FIR-ExP11, dated 22.03.2011. Subsequently,

PW12 (SDPO, Mahbubnagar) took up further investigation on

23.03.2011.

7. During the investigation, PW12 visited the scene of offence,

which was an agricultural land belonging to Padala Mallesh (PW5),

located south of the BT Road leading from Mahbubnagar to

Jadcherla, approximately 3 km west of Jadcherla PS, and

conducted inquiries. PW12 also secured the presence of mediators

(PW5 and LW15) and, in their presence, conducted a scene of

offence panchanama. PW12 examined and recorded the statements

of PWs 1 to 4 and 6 to 8, and LWs 5 to 7. Upon perusing the PME

report (ExP9), PW12 sought clarifications from PW11 regarding the

cause of death. PW11 reported that he had conducted the PME

alone, as no other doctor was available. He stated that the injuries

mentioned in ExP9 were sufficient to cause death. He further

clarified that no smell of poison was detected upon opening the

stomach, which was found empty, and that no contents were found.

Following the IO's directions, he preserved the deceased's viscera.

On 26.04.2011, A1 to A5, who had surrendered before the police,

were arrested and sent to judicial remand on the same day.

8. During the investigation, it was revealed that in the first week

of December 2010, A1 to A5, along with the deceased, went to

Bureddypally village to work as laborers in brick manufacturing at

the field of PW5. They erected three small huts at the worksite, one

for A1 and the deceased, one for A2 and A3, and one for A4 and

A5--and resided there. It came to light that A5 allegedly teased the

deceased and attempted to outrage her modesty. Upon learning of

this, A1 to A5 presumed that the deceased would expose them and

began harassing her further, allegedly intending to get rid of her.

They subjected her to continuous physical and mental harassment,

demanding additional dowry, knowing well that the deceased's

parents were unable to fulfill their demands.

9. On 20.02.2011, at approximately 5:30 AM, the accused

allegedly quarreled with the deceased and beat her, causing her to

fall unconscious. PW2 (a neighboring agriculturist), upon hearing

hue and cries, arrived at the scene and found the deceased lying on

the ground. Later, A1 to A5 placed the deceased on a cart, which

was used for shifting brick mud and stated that they were taking

her to a hospital. However, she died on the way, and A1 to A5 failed

to report the incident to Jadcherla PS. Allegedly, with the intent to

screen evidence and conceal the offence, they transported the

deceased's body to their native village, Gampalagudem.

10. During the pendency of trial, A2 passed away, and the case

against him was abated. After the conclusion of the investigation,

charges were framed under Sections 498-A, 302, 201 read with 34

of IPC, alternatively under Section 304-B of IPC, against A1 and A3

to A5.

11. Learned Sessions Judge, having framed charges against A1,

A3 to A5, found that A1 was guilty under Section 302 of IPC. The

appellant was found not guilty of Section 498-A IPC and 304-B IPC.

A3 to A5 were found not guilty under all the penal provisions for

which they were charged.

12. Learned Sessions Judge found that the deceased's death was

homicidal, based on:

1. The evidence of PW9, the mediator to the inquest, who

deposed about the external injuries found on the

deceased's body during the inquest, as recorded in ExP6.

2. The testimony of PW11, the doctor who conducted the

autopsy, who opined in ExP9 (PME Report), relying on

ExP10 (FSL Report), that the victim likely died due to

shock caused by grievous injuries and throttling.

Furthermore, the judge noted that the photographs and

CD filed along with the inquest report demonstrated that

the deceased had been severely beaten, further

corroborating the inquest report regarding the external

injuries observed on the deceased.

13. Learned Sessions Judge found A1 guilty of the deceased's

death, since the deceased was alone with A1 in a separate hut and

the death occurred within the confines of that hut, and A1 failed to

discharge the burden placed upon him under Section 106 of the

Indian Evidence Act (IEA). He was unable to provide a cogent

explanation for the injuries sustained by the deceased, which led to

her death. Further, the defence of the appellant that the deceased

had died by consuming poison was negated by the FSL report.

14. Learned counsel appearing on behalf of the appellant would

submit that the death was suicidal. The victim was suffering from

epilepsy and after she suffered an epileptic attack while being

shifted to the hospital, she died. Learned counsel submitted that

since the prosecution failed to prove that the death was homicidal,

the conviction has to be set aside. Learned counsel further argued

that this Court by order dated 17.11.2023 granted bail to the

appellant mainly on the ground that there are contradictory

statements of the witnesses regarding the death of the deceased.

Further, in view of the improvements made in the evidence of

P.Ws.1 to 3, bail was granted.

15. On the other hand, learned Additional Public Prosecutor

submits that the medical evidence is clear regarding the cause of

death being homicidal.

16. P.W.1, who is the father of the deceased stated that he

received information that the deceased consumed poison. P.W.1

made frantic efforts to see the deceased by calling the appellant

over phone. However, P.W.1 was misled regarding their location.

P.W.1 lodged complaint to the police and later came to know that

the dead body was kept in Gampalagudem village, which is

appellant's native place and on reaching the village, he found the

dead body of the deceased underneath the tin shed in the

appellant's house. The fact that the dead body was found in the tin

shed of the appellant is not disputed.

17. Though, it was informed to P.W.1 at 5.30 A.M on 20.02.2011,

however, he could not see the deceased until the night, on the same

day.

18. Initially, Gampalagudem police registered complaint on the

basis of the written complaint given by P.W.1. The inquest was

conducted by P.W.10, who worked as Sub-Inspector of Police of

Gampalagudem village. Postmortem examination was also

conducted after conclusion of inquest proceedings.

19. P.W.11 is the Doctor, who conducted autopsy on the body of

the deceased on 22.02.2011. He observed ante mortem injuries,

which are, 1) Dislocation of the Tibio-tarsal joint on the right side.

2) Dislocation of the Atlanto-Occipital Joint, and 3) Hyoid bone

fracture is present. The Doctor further stated that there was no

organo phosphate smell present in the stomach and stomach was

empty. The reason for death was multiple injuries resulting in

hemorrhage and shock as a result of cardio respiratory arrest.

Ex.P9 is the postmortem examination report and Ex.P10 is the FSL

report.

20. The defence of the appellant is that the deceased consumed

poison and on account of the transportation of the deceased body

over a distance of nearly 300 kms, the injuries were received. The

defence can be gathered from the suggestions given to the

Postmortem examination Doctor/P.W.11. P.W.11 denied the

suggestion and claimed that the fractures mentioned in Ex.P9 are

grave and will not be caused by transporting the dead body, though

it is for a distance of 300 kms.

21. P.Ws.2 and 3 stated before the Court that they came to know

that the deceased consumed poison and they saw the deceased

outside the hut struggling for her life. Neither P.W.2, nor P.W.5

were declared hostile to the prosecution case. P.W.5 further stated

that he found froth coming from the mouth of the deceased and did

not found any injuries on the body of the deceased while she was

being shifted to the hospital. P.W.8, who stated that the deceased

was suffering from epilepsy was declared hostile to the prosecution

case.

22. The cause of death found by the postmortem Doctor was due

to multiple injuries. The following injuries were recorded in the

postmortem examination and stated by the Doctor in his evidence

before the Court.

1. Dislocation of the Tibio-Tarsal Joint (Right Side):

This refers to the dislocation of the ankle joint, which usually results from high-impact trauma, such as a fall from a significant height or severe twisting force.

2. Dislocation of the Atlanto-Occipital Joint:

a) This injury involves the separation of the skull from the spine at the base of the head.

b) It is a severe injury typically associated with high-impact trauma, hanging, strangulation, or violent force.

c) In most cases, this type of injury leads to instant death or severe neurological impairment.

3. Hyoid Bone Fracture:

The hyoid bone is located in the neck, and fractures are most commonly observed in cases of manual strangulation, ligature strangulation, or hanging.

The presence of a hyoid bone fracture is a strong indicator of

asphyxia due to external force applied to the neck.

23. Epilepsy or epileptic seizures in a person may lead to head

injuries or to the limbs. Firstly, there is no evidence filed by the

appellant to show that the deceased suffered from epileptic seizures

at any point of time or that she was treated for the said condition.

The injuries that were received by the deceased cannot be a result

of fall due to epileptic seizure. The question of epilitic seizure fall

resulting in hyoid bone fracture is not found in any medical book.

The postmortem Doctor also ruled out such a possibility. The

fracture of hyoid bone would result from compression of the neck,

mostly related to strangulation, and not by fall.

24. In the Textbook of Medical Jurisprudence and Toxicology by

Jaising P Modi, 27th Edition, the below is the extract from page 582.

"It should be noted here that the hyoid bone and superior cornuae of the thyroid cartilage are not, as a rule, fractured by any other means other than by strangulation, although the larynx and the trachea may, in rare cases, be fractured by a fall. Post-mortem fracture of the hyoid bone is characterized by the absence of haemorrhage in the tissues around the fracture."

25. Further, at page 586 and 587, the Author has drawn

differences in between "Hanging" and "Strangulation". It is

specifically mentioned that the fracture of the larynx trachea and

hyoid bone is a feature of strangulation.

26. In cases of circumstantial evidence, the Hon'ble Supreme

Court in Sharad Birdhichand Sarda v. State of Maharashtra 1 ,

held as follows:

"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri)1033 :

1973 Crl LJ 1783] where the observations were made: [SCC para 19, p. 807:

SCC (Cri) p. 1047]

"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature and tendency,

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and

(1984) 4 SCC 116

must show that in all human probability the act must have been done by the accused."

27. The conduct of the appellant is also to be looked into. It is the

specific case that the deceased committed suicide by consuming

poison. No reasons are given as to why a distance of 300 kms was

covered without taking the deceased to the nearest Doctor or

hospital for treating her. The first reaction of a person is to take the

person, who had consumed poison, to the nearest Doctor. Having

taken the dead body of deceased and traveling over a distance of

300 kms, thereafter, the dead body was placed in the tin shed of the

appellant's residence. The burden is on the appellant to explain the

cause of death, in view of Section 106 of the Indian Evidence Act.

The prosecution has discharged its initial burden of proving that

the death was homicidal which happened within the four walls of

the hut of the appellant and deceased. Once the initial burden is

discharged, it is for the appellant to prove his case. As already

discussed, the defence of the appellant is suicide by the deceased

through poison consumption. The death by poisoning is ruled out

by P.W.11/Doctor.

28. In Balvir Singh v. State of Uttarakhand 2 , the Hon'ble

Supreme Court held as follows:

"35. In Shambhu Nath Mehra v. The State of Ajmer reported in AIR 1956 SC 404, this Court while considering the word "especially" employed in Section 106 of the Evidence Act speaking through Vivian Bose, J., observed as under:

"11. ... The word "especially" stresses that. It means facts that are pre- eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not.

It is evident that that cannot be the intention & the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. The King, 1936 PC 169 (AIR V 23) (A) and Seneviratne v. R, 1936-3 All ER 36 at p. 49 (B)."

36. The aforesaid decision of Shambhu Nath (supra) has been referred to and relied upon in Nagendra Sah v. State of Bihar reported in (2021) 10 SCC 725, wherein this Court observed as under:

"22. Thus, Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer proper explanation about the existence of said other facts, the court can always draw an appropriate inference.

23. When a case is resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances. In a case governed by circumstantial evidence, if the chain of circumstances which is required to be established by the prosecution is not established, the failure of the accused to discharge the burden under Section 106 of the Evidence Act is not relevant at all. When the chain is not complete, falsity of the defence is no ground to convict the accused."

Criminal Appeal No.301 of 2015 dated 06.10.2023

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. ..."

29. The defence taken by the appellant is that the death was due

to epileptic seizure and the deceased falling down. The hyoid bone

cannot be fractured in case of either fall on the ground or due to

travel. The incident happened in the house of the appellant and the

appellant failed to discharge his burden, as already discussed.

30. There are no grounds to interfere with the conviction recorded

by the learned Sessions Judge. Since the appellant is on bail, the

trial Court is directed to cause appearance of the appellant and

send him to prison to serve out the remaining period of sentence.

31. Accordingly, Criminal Appeal is dismissed.

__________________ K.SURENDER, J

____________________________________ ANIL KUMAR JUKANTI, J Date : 25.02.2025 kvs

THE HON'BLE SRI JUSTICE K.SURENDER And THE HON'BLE SRI JUSTICE ANIL KUMAR JUKANTI

CRIMINAL APPEAL No.220 of 2017

Date: 25.02.2025

kvs