1
SC No.205/2019, Dt: 29.04.2022
IN THE COURT OF THE IV ADDL. SESSIONS JUDGE (FTC), SATHUPALLY
Date this the 29th day of April, 2022
Present: Sri C.V.S. Sai Bhupathi, IV Addl. Sessions Judge, Sathupally.
SC. No.205 of 2019
===============================================
1.Complainant:The State Circle Inspector of Police, Wyra.
2.Name of the accused:A1 – Shaik Akbar S/o Afzal, Age: 24 years, Muslim, Occu: Two wheeler Mechanic, R/o Near Balaji Towers, Wyra Village and Mandal, Khammam district. A2 – Shaik Hameedha W/o Late Abdul, Age: 25 years, Muslim, Housewife, R/o Near MDO Office, Wyra Village and Mandal, Khammam district.
3.Crime No.:42 of 2019 of P.S Wyra
4.P.R.C.No.:15 of 2019
5.Name of the Officer who:Sri.K.Srikanth, committed the caseAddl. Judl. Magistrate of First Class, Madhira.
6.Prosecution conducted by :Addl. Public Prosecutor, Sathupally.
7.Defence conducted by:Sri.D.Narayana, Advocate for A1 Sri.P.Viplava Kumar, Advocate for A2
8.Charges :Under Section 302 r/w 34 IPC
9.Plea of the accused:Not guilty 10Finding of the court: Accused Nos.1 and 2 are found guilty 11Sentence of order: In the result, the accused Nos.1 and 2 are found guilty for the offence U/Sec.302 r/w 34 of IPC and accordingly they are convicted under Section 235(2) Cr.P.C and sentenced to undergo life imprisonment each and to pay a fine of Rs.5,000/- (Rupees five thousand only) each, in default of payment of fine, they shall undergo simple imprisonment for three months each. MOs.1 to 3 are ordered to be destroyed after appeal time is over. Since accused Nos.1 and 2 are convicted for life they are not entitled to set off under Section 428 of Cr.P.C at present and the period 2
SC No.205/2019, Dt: 29.04.2022
of judicial custody of accused No.1 is from 20.02.2019 to 27.04.2019 i.e., (2 months 7 days) and the period of judicial custody of accused No.2 is from 20.02.2019 to 09.05.2019 i.e., (2 months 19 days) for consideration of remission if any under Section 433 Cr.P.C by the Government in future. A free copy of this Judgment shall be immediately furnished to the accused Nos.1 and 2 under Section 363 of Cr.P.C.
This case is coming before me for final hearing on 25.04.2022 and after hearing the arguments of Addl. Public Prosecutor for the state and of Sri.D.Narayana, Advocate for accused No.1 and Sri.P.Viplava Kumar, Advocate for accused No.2; upon perusing the material papers available on record; upon hearing the arguments on both sides; this court delivered the following:-
J U D G M E N T
1. The Circle Inspector of Police, Wyra laid charge sheet against the accused Nos.1 and 2 in Cr. No.42/2019, U/Sec.302 r/w 34 of
IPC alleging that the accused No.1 and 2 are liable to be punishable
U/Sec.302 r/w 34 of IPC.
2.The factual matrix of the case of prosecution are as follows;
On 15.02.2019 at 10.00 hours, Pw.1 lodged a Telugu written petition in police station, Wyra stating that they having four progeny to his parents and youngest brother by name Shaik Abdul and his marriage was performed in the year 2012 with the younger daughter of Shaik
Nagul Meera by name Shaik Hameeda and after the marriage they were residing near M.D.O Office and during their conjugal life, they were blessed with two female children and the elder daughter’s name is Shaik
Samreen aged about 6 years and younger daughter’s name is Shaik
Sameera aged about 4 years and his brother said to him with suffer that his wife was having illegal contact with one Shaik Akbar for about one year and that he promised him that he would do retrieve his conjugal life with the help of elders and then admonished his sister-in-law, but she could not change her attitude and as usual continued her illegal 3
SC No.205/2019, Dt: 29.04.2022
intimacy with Akbar and his brother also admonished her about that issue and told him that four days ago the said Akbar and his wife were in his house and at that time on seeing him, Akbar ran away from there by threatening him to kill and narrated him the happened incident and on that he said that he was on some work and after completion he would approach the police station and file a complaint against Akbar and that from few days the deceased was suffering by keeping the same in his mind and on 14.02.2019 in the night hours at about 11.45 P.M his sister-in-law went to her neighbour’s house by name Shaik Saheda
Begum and said that her husband died with fits and immediately the said Saheda Begum made a phone to her father Patan Nizam and stated the same and on that he rushed to him and told the same and immediately he rushed to the house of his brother and saw him dead on the cot and he informed all his relatives and in the morning shifted the dead body of deceased from in house to varanda and observed contusion injuries under his neck and asked the younger daughter of the deceased by name Shaik Sameera and she told him that at last night
Akbar came to their house and sat on his brother and throttled the neck with his hands while his sister-in-law cot his legs firmly and as per their plan his sister-in-law and Akbar with an intention to avoid his brother from their way, killed him and requested to take necessary action.
On the receipt of report, Lw.19/T.Naresh, S.I of Police, Wyra registered a case in Cr. No.42/2019, U/Sec.302 r/w 34 of IPC and issued express F.I.R. On receiving the information from Lw.19/T.Naresh, S.I,
Pw.14 took up investigation since the offence is grave in nature and immediately rushed to the scene of offence situated at the house of deceased near M.D.O Office, Wyra and examined and recorded the statement of Pw.1 and observed the dead body of deceased in the presence of Pw.7 and Lw.8/Patan Hymath Khan, drafted rough sketch of 4
SC No.205/2019, Dt: 29.04.2022
scene of offence, incorporated the details and description in the CDF
before the same mediators, examined and recorded the statements of
Pws.2 to 5 and Lw.4/Shaik Abida, got photographed the dead body of the deceased with the help of Pw.6 and further examined and recorded his statement, conducted inquest over the dead body of deceaesd in the presence of Pw.7 and Lw.8/Patan Hymath Khan, shifted the dead body to
Govt. Civil Hospital, Madhira with escort with a requisition to conduct postmortem examination. After completion of formalities the corpse was handed over to relatives. On 20.02.2019 at 7.00 hours on reliable information, Pw.14 along with Lw.19/T.Naresh, S.I of Police and Woman
P.C.3380 rushed near to vegetable market, Wyra and apprehended accused Nos.1 and 2, immediately secured the presence of Pw.8 and
Lw.10/Pureti Dharmaiah, interrogated them individually in their presence and on interrogation the accused persons confessed the guilt of offence, secured the panchas and recorded the confession and seizure panchanama of A1 and seized the cell phone of REDMI Note 5 Pro Gold and two simcards, one is Idea (91339 37122) and second one is BSNL (94921 26763) and later recorded the confession panchanama of A2
before the same panch witnesses. Basing on the confessional and
seizure panchanama of accused No.1, Pw.14 along with Pw.8 and
Lw.10/Pureti Dharmaiah proceeded to the place which is situated at backside of M.D.O office led by accused No.1 and accused No.1 shown the pillow and white towel which was used by the accused in the commission of offence and seized them under cover of panchanama in the presence of the same mediators. On 27.02.2019, secured the presence of woman officer i.e., Pw.11/ICDS supervisor and got recorded the statement of Pw.9 in the presence of Pw.1 under videography of
Pw.6. Later, Pw.14 examined and recorded the statement of Pw.9 in the presence of Pw.1. On 28.02.2019, Pw.14 examined and recorded the 5
SC No.205/2019, Dt: 29.04.2022
statements of Pw.10 and Lw.15/Shaik Rafi. Lw.18/Smt.N.Anitha Reddy,
I Addl. Judicial Magistrate of First Class, Khammam recorded the 164 Cr.P.C statement of Pw.9. Pw.14 obtained 65-B (4) (c) of Indian
Evidence Act, 1872 Certificate from Pw.13 and CAF particulars from the
Nodal Officer (AP & TS). Nodal Officer/Pw.13 and through CDR it came to notice that A2 made a phone call from the mobile phone of deceased on 14.02.2019 at 21:49:35 for a duration of 201 seconds at 22:02:52 for a duration of 20 seconds and at 23:36:31 for a duration of 27 seconds and on consequent transfer and posting of Lw.21/J.Vasantha Kumar, C.I of Police, Wyra to Wyra circle office, he took up investigation from
Pw.14. Pw.12, who conducted autopsy over the dead body of deceased, issued detailed PME report opined that the cause of death of deceased was due to cardio respiratory arrest due to asphyxia due to pressure on the neck. Later, Lw.21/J.Vasantha Kumar, C.I of Police obtained RFSL report vide WGL/TOX/266/2019 and opined that no poisonous substance is found. After completion of investigation, Lw.21/J.Vasantha Kumar, C.I of Police filed charge sheet against the accused Nos.1 and 2 alleging that they are liable to be punishable U/Sec.302 r/w 34 of IPC.
3.Basing on the material available on record, the learned Addl.
Judicial Magistrate of First Class, Madhira took the case on file and took
cognizance for the offence punishable under Section 302 r/w 34 of IPC against A1 and A2 and registered a case vide PRC No.15/2019 and after serving copies of documents to them in compliance of Section 207 of Cr.P.C. Since, the section 302 of IPC is exclusively triable by the
Court of Sessions, the case was committed to Hon’ble Prl. District and
Sessions Court, Khammam under Section 209 of Cr.P.C.
4.On appearance of the accused No.1 and 2, basing on material available on record, the Hon’ble Prl. District and Sessions Court, 6
SC No.205/2019, Dt: 29.04.2022
Khammam was pleased to take over the case for the offence punishable under Section 302 r/w 34 of IPC against accused Nos.1 and 2 and registered the case vide S.C No.205/2019 and made over the case to this court for trial and disposal.
5. On the appearance of the accused and on hearing the learned Public Prosecutor and the learned counsels for the accused
Nos.1 and 2, the accused were examined and charge framed against the accused Nos.1 and 2 under section 228 Cr.P.C for the offence punishable under Section 302 r/w 34 of IPC against A1 and A2, readover and explained to them in Telugu. Having understood the same, the accused denied the offence, pleaded not guilty and claimed to be tried. The accused were defended by their counsel.
6. Out of (21) witnesses cited by the prosecution, the prosecution has examined PWs.1 to 14 and got marked Exs.P1 to P14 and
MOs.1 to 3. No witnesses were examined from the side of accused and
Exs.D1 to D3 were marked from the side of accused. The learned Addl.
Public Prosecutor has given up Lw.4/Shaik Abeeda, Lw.8/Patan Hymath
Khan, Lw.10/Pureti Dharmaiah, Lw.15/Shaik Rafi, Lw.18/Smt.N.Anitha
Reddy, I Addl. Judicial Magistrate of First Class, Khammam,
Lw.19/T.Naresh, S.I of Police and Lw.21/J.Vasantha Kumar, C.I of Police.
7. After completion of the prosecution evidence the accused
Nos.1 and 2 were examined U/Sec.313 Cr.P.C and the incriminating evidence was read over and explained to the accused in Telugu. Having understood the same the accused denied the evidence and further stated that they have no defence evidence.
8.Heard both sides arguments.
9. Now the point for determination is “Whether the prosecution has proved the guilt of the accused Nos.1 and 2 for the offence punishable under Section 302 r/w 34 of IPC beyond reasonable 7
SC No.205/2019, Dt: 29.04.2022
doubt?
POINT:
10. The conspectus of the prosecution case is that the deceased-
Shaik Abdul was younger brother of Pw.1 and resident of Wyra and he was a private electrician and A2 is the wife of deceased and in the year 2012, he got married the accused No.2 and led their marital life happily and were blessed with two female children and the accused No.1 is eking his livelihood by cleaning motor cycle parts in the mechanic shed of his maternal uncle and used to go to his grandmother’s house for sleeping at night, which is located nearby MPPS School and beside the house of deceased and accused No.2 tried to make acquaintance with accused No.1 and from one year accused No.2 maintained illegal intimacy with accused No.1 and on knowing the same Pw.2, who is the mother of deceased, admonished accused No.1, but she did not hear the words of Pw.2 and continued physical contact with accused No.2 and at about 10 days ago while accused No.2 was alone in the house, taking the advantage accused No.1 went into the house and the deceased observed the same and on seeing the deceased, accused No.1 pushed him and fled away from there by threatening him to kill and later the deceased asked accused No.1 about the incident and accused No.1 grew wild and attacked the deceased with a stick and in the meantime the deceased procured the stick and attacked accused No.1 and later the deceased went to his house and took the cell phone of accused No.2 and hidden it and due to which accused Nos.1 and 2 felt inconvenience for their communication and thought that the deceased was main obstacle for their life and that the accused No.1 came to know that the deceased was suffering from fits and approached accused No.2 and hatched a plan to kill the deceased and on 14.02.2019 after completion of his meals the deceased went to deep sleep and in pursuance of their 8
SC No.205/2019, Dt: 29.04.2022
plan at 22.00 hours, the accused No.2 made a phone call to accused
No.1 and narrated the situation to him in twice and immediately accused No.1 rushed to the house of deceased and procured a pillow and applied on the face of the deceased with pressure and sat on him and accused No.2 assisted accused No.1 and caught hold the legs of deceased firmly and immediately accused No.1 throttled with hands and by suspecting the death of deceased, accused No.2 gave a white towel to the accused No.1 and he tightened the neck of deceased and confirmed his death and in the meantime Pw.9 who slept in the same room, with fear hidden in the blanket and observed the incident and after confirmation of death of deceased, accused No.1 concealed the pillow and white towel at the backside of M.D.O office and at 23.30 hours again A2 made a phone call to A1 and confirmed that whether he went away from there or not and after the confirmation A2 went to the house of Pw.4 and stated that the deceased died due to fits and on that
Pw.4 telephoned to Pw.5 and informed the same and on that Pw.5 transmitted the same information to Pw.1 and Pw.1 immediately rushed to the house of deceased and saw him died on the cot and informed all the relatives and on 15.02.2019 in the morning while shifting the dead body from in house to varanda Pw.1 observed contusion injuries under the neck of deceased and due to suspicion he enquired Pw.9 and she narrated him the entire incident.
11. Pw.1 is the defacto-complainant and the elder brother of the deceased and circumstantial witness and through him Ex.P1/Report was marked. Pw.2 is the mother of the deceased and Pw.3 is the elder sister of deceased and they are the circumstantial witnesses. Pw.4 is the neighbour of the deceased and Pw.5 is the father of Pw.4 and they are the circumstantial witnesses. Pw.6 is the photographer and through him three (3) photographs were marked as Ex.P2. Pw.7 is the panch witness 9
SC No.205/2019, Dt: 29.04.2022
for CDF and Inquest and through him Ex.P3/Crime details form and
Ex.P4/Inquest Panchanama were marked. Pw.8 is the panch witness for confession and recovery panchanamas and through him
Ex.P5/Confession Panchanama and Ex.P6/Recovery Panchanama and
MOs.1 to 3 were marked. Pw.9 is the eye witness and the daughter of the deceased. Pw.10 is the circumstantial witness. Pw.11 is the child development project officer and through her Ex.P7/Attested copy of the statement of Pw.9 was marked. Pw.12 is the medical officer and though him Ex.P8/RFSL report and Ex.P9/Postmortem Examination report were marked. Pw.13 is the Nodal officer and through him Ex.P10/Original
Section 65-B Certificate, Ex.P11/Attested photo copy of customer application along with I.D proof of applicant were marked. Pw.14 is the investigating officer and through him Ex.P12/F.I.R and Ex.P13/Requisition to AJFCM, Khammam, Ex.P14/164 Cr.P.C statement of Pw.9 were marked.
12. Pw.1, who is the defacto-complainant as well as the elder brother of the deceased, deposed in his evidence that Pw.2 is his mother and accused No.2 is wife of his deceased brother/Shaik Abdul and he knows accused No.1 and about 12 years ago, the marriage of accused
No.2 was performed with the deceased and they were blessed with two daughters and after the marriage, they lived happily for sometime and later accused No.2 developed illegal contacts with accused No.1 and he admonished accused No.2 many times, but she continued her illegal contacts with accused No.1 and the deceased informed him about the illegal contacts between accused Nos.1 and 2 and even though he admonished accused No.2, she continued her illegal contacts with accused No.1 and on one day, the deceased saw both accused
Nos.1 and 2 in his house and on seeing the deceased, accused No.1 started running and at that time he warned the deceased that he would kill him and the deceased told him about the threat given by accused 10
SC No.205/2019, Dt: 29.04.2022
No.1 and since he was busy with his work, they did not approach police to give any report. On 14th February at 11.45 P.M, while he was at his house and was about to sleep, Pw.5 came to his house and informed that his daughter, who is Pw.4, told him that his brother died in his house by fits and the same was informed her by accused No.2 and immediately he went to the house of deceased in the same day night and observed the deceased died and in the morning, the children of the deceased were weeping and he asked the youngest daughter of deceased what happened and she told him that at night accused No.1 came to their house and was pressing the neck of deceased and accused No.2 caught hold the legs of deceased and when he questioned her how she witnessed the same, she replied that she peeped by lifting the bed sheet and when she asked her why she did not shout, she said that due to fear she did not raise any shoutings and then, he questioned why should she wake-up till that night and she replied that her parents quarreled with each other and due to that she woke-up and he gave Ex.P1/report to police.
13. Pw.5, who said to have informed Pw.1 about the incident, deposed in his evidence that Pw.4 is his daughter and he knows the deceased Shaik Abdul and accused Nos.1 and 2 and about two years ago at about 10.30 P.M or 11.00 P.M while he was at Shanthi Nagar,
Wyra, Pw.4 telephoned to him and informed that accused No.2 came to her in weeping and woke up and stated that her husband Shaik Abdul died and asked him to inform the same to Pw.1 and that he went to the house of Pw.1, who is residing near by his house, and informed the matter to him and on the next day morning, he went to the house of deceased and found him dead. Pw.4, who is the daughter of Pw.5 and who said to have informed Pw.5 through phone about the incident, deposed in her evidence that she knows accused Nos.1 and 2 and the 11
SC No.205/2019, Dt: 29.04.2022
deceased/Sk.Abdul and her house is situated in the locality of house of accused No.2 and on 14.02.2019 at night 11.45 P.M, accused No.2 knocked her house gate and she came out of their house and observed accused No.2 was weeping and she asked accused No.2 about the reason for her weeping and she stated to her that her husband fell down due to fits and he was not talking and in the meanwhile, the opposite house inmates by name Koteswara Rao and Muthyalu came out from their houses and they all went to the house of accused No.2 and they observed the deceased was lying on the cot and they called him by saying his name as Abdul, Abdul and the said Koteswara Rao caught hold the hand of deceased and declared him as dead and the two daughters of accused No.2 were also present in the house and the said
Koteswara Rao tried to telephone Pw.1, but his cell phone was switched off and then she telephoned to Pw.5 and informed the same and Pw.5 came along with Pw.1 and thereafter all their relatives came there and she does not know the reason for the death of the deceased.
Pws.4 and 5 corroborated the version of Pw.1 about the communication of the information of the death of deceased to Pw.1 and supported the version of the prosecution.
14.The cross-examination of Pw.1 revealed that the house of deceased is consisting two rooms and in one room, the deceased resided along with family and there is one exit to the single room and he admitted that the locality, which the house of deceased situated, is a busy locality and deceased was staying in one room and their mother is staying in another room of the same house which belongs to her and it is a tin sheet roofed house and the size of room is in medium size and he used to visit the house of deceased once in 5 or 6 months in a year and the deceased had one double cot and one navar cot and he saw the dead body of deceased lying on the navar cot facing towards upward 12
SC No.205/2019, Dt: 29.04.2022
direction (supine position) and wearing pant and shirt and the distance between his house and the house of deceased is about one kilometer and there were about 10 to 15 people gathered at the house of deceased and he was continuously present at the house of the deceased till the morning and his relatives and neighbours, who gathered there, observed the dead body in the night itself and at 10.00 A.M he drafted the report at his house and gave to police and immediately after giving report to police, police came to the house of deceased within 10 minutes and he admitted that there is common varanda to the entire house and also admitted that often the deceased got fits and further revealed that the deceased was in the habit of consuming alcohol. Pw.14, who is the investigating officer, deposed in his evidence that on 15.02.2019 at 10.00 hours, Lw.19/T.Naresh, S.I of
Police, Wyra received report from Pw.1 and basing upon the contents of report, he registered a case in Cr. No.42/2019, U/Sec.302 r/w 34 of IPC and issued Ex.P12/F.I.R and after that he received information from
Lw.19/T.Naresh, S.I of Police that the offence was grievous in nature and he took up further investigation from him.
15.Pw.2, who is the mother of Pw.1 and the deceased, deposed in her evidence that A2 is the wife of deceased/Abdul and her daughter- in-law and that she knows accused No.1 and about seven years ago the marriage of accused No.2 was performed with the deceased and they were blessed with two daughters and they lived happily for some time and later accused No.1 used to visit the house of deceased and there are illegal contacts between accused Nos.1 and 2 and that on one day, the deceased saw accused Nos.1 and 2 in the house and accused No.1 warned the deceased that he would kill him at anytime and she told accused No.2 not to develop illegal relationship with accused No.1 and after that the husband of her daughter died and she went to the house 13
SC No.205/2019, Dt: 29.04.2022
of her daughter to see her and stayed there for five days and Pw.1 telephoned to him and informed over phone that the deceased died and she came to the house of deceased and found him dead and Pw.9, who is her younger granddaughter, told her that she saw accused No.1 sat on the chest of the deceased and pressed his neck and accused No.2 caught hold his legs firmly and further deposed that due to illegal relationship between accused Nos.1 and 2 they decided to get rid off the deceased and as per their plan they killed the deceased. Her cross- examination revealed that on that day she returned from her daughter’s house to the house of deceased at 9.00 A.M and at that time all her relatives gathered at the house of the deceased and the parents of accused No.2 were also present there and she admitted that the deceased used to get fits and sometimes she goes to work.
She further deposed in her cross-examination that she did not state
before police that on 14.02.2019 at night her elder son telephoned to
her younger daughter and informed that his brother Abdul died due to fits and that herself and her younger daughter came to the house of her son at Wyra in the morning and found dead as in Ex.D1. The portion of 161 Cr.P.C statement of Pw.2 was marked as Ex.D1. Pw.14, the investigating officer, has denied the suggestion in his cross-examination that Pw.2 did not state before him as in Ex.D1. The evidence of Pw.2 is obvious that though she is residing by the side room in the same house, yet she was not present by the time of the incident and she was in the house of her younger daughter and on information by Pw.1 through phone she came to the house of deceased.
16. The evidence of Pw.3, who is the elder sister of the deceased, revealed that on 14.02.2019 she was in Vellanki village and her younger sister telephoned to her at night hours stating that their younger brother died and on the next day morning she came to Wyra 14
SC No.205/2019, Dt: 29.04.2022
and found the dead body of her younger brother Shaik Abdul on a cot and then she asked Pw.1 who is responsible for the death of her younger brother and about the reason for the death of the deceased and he told her that the wife of the deceased and accused No.1 both killed the deceased and also stated that accused No.1 sat on the chest of the deceased and pressed his neck and accused No.2 caught hold his legs and there are illegal contacts between accused Nos.1 and 2. Her cross- examination revealed that about 10 persons were present by that time and she did not state before police that on yesterday night her younger brother telephoned to her and informed that their elder brother Abdul died due to fits as in Ex.D2. The portion of 161 Cr.P.C statement of Pw.3 was marked as Ex.D2. Pw.14, the investigating officer, has denied the suggestion in his cross-examination that Pw.3 did not state before him as in Ex.D2.
17.The whole evidence of Pws.1 to 5 revealed that accused
No.2 informed Pw.4, who is her neighbour, that her husband, who is the deceased Abdul, died due to fits and after arriving the house of deceased, Pw.1 and Pw.2 came to know from Pw.9, who is the younger daughter of the deceased, that A1 and A2 killed the deceased. Ex.D1 and Ex.D2 are not major contradictions which do not go to the root of the prosecution case. The evidence of Pws.1 and 2 is clear that the accused No.2 developed illegal contacts with accused No.1 and even though Pws.1 and 2 admonished accused No.2, yet she continued her illegal contacts with accused No.1 and the deceased happened to see the accused Nos.1 and 2 together in his house and the accused No.1 warned the deceased to kill him at anytime.
18.Pw.14, who is the investigating officer, further deposed in his evidence that he visited the scene of offence i.e., the house of 15
SC No.205/2019, Dt: 29.04.2022
deceased near M.D.O office, Madhira and secured the presence of Pw.7 and Lw.8/Patan Hymath Khan and conducted scene of offence panchanama and prepared CDF and drawn rough sketch in their presence and he secured Pws.1 to 5 and Lw.4/Shaik Abeeda and examined and recorded their statements and got photographed the dead body of deceased/Shaik Abdul with the help of Pw.6 and examined and recorded his statement and conducted inquest over the dead body of deceased in the presence of the same panch witnesses and shifted the dead body to Govt. Hospital, Madhira for postmortem examination with escort and after completion of formalities of PME, he handed over the dead body to the relatives.
19.Pw.7, the panch witness for CDF and Inquest, revealed in his evidence that about two years ago, Abdul died in Wyra at night and he went to the house of Abdul in the morning at 10.00 A.M, by that time police were present and police conducted scene of offence panchanama in his presence and obtained his signature and he saw the dead body of
Abdul in his house and the dead body was lying on a navar cot and he observed scratch marks on the face, on the neck and police conducted inquest and noted in his presence and they the panchas opined that the cause of death of the deceased is due to murder and Ex.P3 is the crime details form and Ex.P4 is the inquest panchanama. His cross- examination revealed that his house is four houses away from the house of Abdul and by that time he went to the house of accused and only police persons were present and except police no others were present and himself and Lw.9/Patan Hymath Khan went together to the house of
Abdul and about 10 police persons were present and police were observing the dead body and police drafted CDF and Inquest in the varanda of the house and the dead body of Abdul was inside the room of the house on a navar cot and the room is small in size and there are 16
SC No.205/2019, Dt: 29.04.2022
almarahs and shelfs in the room and the head of dead body was towards east and there is one exist door to the room and there is one window opposite to exit room and on observing the scratch marks on the face and neck of the dead body, he opined that the death was caused due to murder.
20. Pw.6, who is the photographer running photo studio in the name and style of Prem Digital Studio in Wyra, deposed in his evidence that about two years ago, one constable came to him and asked him to take photographs at M.D.O Office and accordingly he went to the house of Abdul and took the photographs of the dead body of Abdul and when he enquired the police, they informed him that the wife of Abdul and another person killed the Abdul and later he handed over the photographs to police and Ex.P2 is three photographs. Since the prosecution has not filed the compact disc, the photographs are marked subject to objection raised by the learned counsels for accused. His cross-examination revealed that his photo studio is not registered and he is not maintaining any record or register in his photo studio and he has no licence or authorization to run photo studio and he is the president of photographers union in Wyra Mandal and he is having
I.D card and he took photographs in four cases and he did not give any receipt to police for taking the photographs.
21.Pw.14, the investigating officer, further revealed in his evidence that on reliable information on 20.02.2019 at 7.00 A.M, he along with his staff apprehended accused Nos.1 and 2 at vegetable market, Wyra and secured the presence of Pw.8 and Lw.10/Pureti
Dharmaiah and on interrogation the accused confessed the guilt of offence in the presence of panch witnesses and he recovered one REDMI
Note 5 pro gold and two sim cards one is Idea No.91339 37122 and 17
SC No.205/2019, Dt: 29.04.2022
another one is BSNL No.94921 26763 (MO.1) from the accused and after completion of confession and recovery panchanama of accused Nos.1 and 2 and basing on the confession statement of accused No.1, he along with panchas and accused Nos.1 and 2 proceeded to the back side of M.D.O office vacant land belongs to veterinary office and seized one pillow (MO.2), White towel (MO.3) which were used by the accused in the commission of offence and after completion of arrest formalities, he produced the accused before the court for judicial custody.
22.The evidence of Pw.8, who is the then V.R.O, Gollenpadu village and said to be the panch witness for confession and recovery panchanama of accused, revealed that on 20.02.2019 police telephoned to their M.R.O and requested him to send two panch witnesses and
M.R.O instructed him and Lw.10/Puleti Dharmaiah to go to the place near Vegetable market of Wyra and they reached the place at 7.00 A.M and by that time one male and female persons were present by the side of the road and police stated to them their names as Akbar and
Hameeda and asked them to enquire the two persons. Pw.8 has identified accused Nos.1 and 2, who were present in the court hall. Pw.8 further revealed in his evidence that first they enquired accused No.1 and he stated that he is working in the mechanical shop of his uncle and used to bring kerosene to clean the machine parts from known persons and go to the house of his maternal grandmother to sleep and by the side of his grandmother’s house, there is MPP school and the house of deceased/Shaik Abdul is by the side of MPP School and that he used to give signs to accused No.2 and tried to talk to her and decided to move closer to accused No.2 and to yield her and used to go to her house on some pretext and the mother of deceased/Abdul also warned him not to come to their house and even then he continued his activities and he moved closer to accused No.2 and both participated sexually and 18
SC No.205/2019, Dt: 29.04.2022
confessed the commission of offence of murder of deceased along with accused No.2 and police seized REDMI Note 5 Pro gold mobile of accused No.1 and that the accused, police and they went to the place where the pillow and kanduva were thrown i.e., vacant site of veterinary hospital and accused No.1 went inside the thorn bushes and brought out the kanduva and pillow and shown to the police and police seized the pillow and kanduva (towel) in his presence.
The evidence of Pw.8 further revealed that accused No.2 also confessed the same as confessed by accused No.1 and the cover of pillow is in black colour with matti rangu, green colour and white flowers and the colour of pillow is violet and white dots and the kanduva (towel) is in white colour and he signed on the panchanamas drafted by police and
Ex.P5 is the confession panchanama and Ex.P6 is the recovery panchanama and MO.1 is the REDMI Note 5 Pro gold mobile and MO.2 is pillow with cover and MO.3 is kanduva (towel). He admitted in his cross- examination that on one side of the road there is a bus stand and on the other side there is a vegetable market in Wyra and bus stand of Wyra is a big one and the part of confession panchanama of accused was conducted 10 feet away on the road from the vegetable market and accused Nos.1 and 2 were in the custody of police when they went to that place and they asked accused at a distance of two meters away from the police and police writer drafted the panchanama and at 9.30 A.M the accused led them to veterinary hospital and admitted that veterinary hospital is a public place and public move closely in the entire place of veterinary hospital.
23.Pw.14, the investigating officer, revealed in his cross- examination that the accused made confession about the using of pillow and towel at the time of confession panchanama and the finger print experts visited the scene of offence, but no clues were found by them.
19
SC No.205/2019, Dt: 29.04.2022
Pw.1 revealed in his cross-examination that police seized pillow, towel, wire and cell phone after the arrival of V.R.O on the same day.
The learned counsels for the accused have argued that the witness admitted that the veterinary hospital is a public place and the said place is accessible to the public and not in the exclusive knowledge of accused.
In State of Maharashtra v. Bharat Fakira Dhiwar, this Court held: (SCC p. 629, para 22) "22. In the present case the grinding stone was found in tall grass. The pants and underwear were buried. They were out of visibility of others in normal circumstances. Until they were disinterred, at the instance of the respondent, their hidden state had remained unhampered. The respondent alone knew where they were until he disclosed it. Thus we see no substance in this submission also."
Pw.8 categorically deposed in his evidence that accused No.1 went inside the thorn bushes and brought MOs.2 and 3 and the accused
No.1 alone knew where they were until he disclosed. Hence, there is no force in the argument of learned counsels for accused.
24.Pw.10, who is the circumstantial witness, revealed in his evidence that in the 14th day of February, 2019, himself and his younger brother were consuming alcohol at pam oil garden in Wyra at around 9.00 P.M and at that time accused No.1 came to them with a liquor bottle and consumed alcohol and thereafter at around 9.45 P.M, he received phone call and went away. Pw.14, the investigating officer, deposed in his evidence that on 28.02.2019 he secured the presence of
Pw.10 and Lw.15/Shaik Rafi and examined and recorded their statements. The accused could not elicit anything adverse to the version of prosecution from the evidence of Pw.10 and to support their contention.
20
SC No.205/2019, Dt: 29.04.2022
25. Except the evidence of Pw.9, who is the own daughter of the deceased and accused No.2 and a child witness, there is no other eye witness to the incident and all the circumstantial evidence rests on the evidence of Pw.9, which is crucial, to fasten the liability of the accused persons to the offence and to prove the case of the prosecution with the evidence placed and relied upon it. Pw.11, who is the then
additional child development project officer, Wyra Mandal in ICDS
Project, Madhira, deposed in her evidence that on 27.02.2019 the Circle
Inspector telephoned to her at around 7.30 or 8.30 A.M and asked her to record the statement of minor girl and she went to Wyra station and a minor girl by name Sameera was present with the police in the police station and she recorded the statement of minor girl/Sameera and she stated to her that her mother’s name is Hameeda and her father’s name is Abdul and that one Akbar pressed the neck of her father and her mother caught hold the legs of her father and both killed her father
Abdul and that she recorded her statement and handed over the same to C.I of Police and while she was talking to the minor girl, her supervisor by name Malathi recorded the statement of said minor girl and she read over and explained the contents to the minor girl and later she signed under the statement and Ex.P7 is the attested copy of statement of minor girl which was recorded in her presence and bears her signature. Her cross-examination revealed that the junior paternal uncle of the minor girl accompanied her and she did not allow him and took the minor girl to the tree, which is within the compound of police station, to record her statement and she enquired her in Telugu language and the minor girl stated to her that while her father was sleeping, the incident took place and as per Ex.P7/Statement,
Pw.9 stated that ‘with a hand pressed the neck of deceased’ and the meaning of ‘chethoni’ is with single hand and Pw.9 stated to her that 21
SC No.205/2019, Dt: 29.04.2022
‘Duppatlonundi’ and she did not lift the bed sheet. When a question was put to the witness by the court what is the meaning of ‘Duppatlonundi’, the witness gave the answer that as per her opinion ‘Duppatlonundi’ meansby covering the bed sheet. Pw.14, the investigating officer, deposed in his cross-examination by the learned counsel for accused No.1 that Pw.9 did not state before him ‘with both hands’. Pw.9, categorically deposed in her evidence that Akbar pressed the neck of her father with both hands. Pw.14, the investigating officer, deposed in his cross-examination that he put a question to Pw.9 that ‘godava evariki aindi’ and Pw.9 stated to him that ‘dady ki mammy ki,
Akbar ki, kottindu baga Akbar daddy ni. Kottesina tarvatha, ayana ma intidaggara untundu. Maa intiloki vastundu, baaga ledani doctor ni pilipinchukoni vachinaru, teesukoni vachina tarvatha emi ledannaru (the dispute took place between her father, mother and Akbar and Akbar beat her daddy indiscriminately and after that Akbar was staying in the house and used to come to the house, brought the doctor as not feeling well and after brought him, said nothing was there)”.
26.Since Pw.9 is a child witness aged about 7 years, the court put some questions to her to know whether the witness is competent to give answers. Pw.9 gave rational answers to the questions put by the court and the court is satisfied that the witness is competent to give evidence. The evidence of Pw.9 revealed that accused No.2 is her mother and she knows accused No.1, who used to come to their house earlier and her father’s name is Abdul and he died so many days ago and she was in the house at night and herself and her mother and father were in the house and she was lying on the bed and awoke and her mother opened the door of the house and accused No.1 came inside their house and sat on her father and pressed his neck and her mother caught hold the legs of her father and her father died and thereafter her 22
SC No.205/2019, Dt: 29.04.2022
mother opened the door and Akbar went away from their house and her mother went out from their house in weeping and said to neighbours that her father died and she peeped by lifting the bed sheet and her mother was weeping and went outside. Pw.9 identified accused No.1 who is present in the court hall. Pw.9 further deposed in her evidence that in the morning hours police came to their house and her statement was recorded by Judge sir in the court.
Her cross-examination revealed that she was going to school at the period of incident took place and after returning from school she used to have dinner early at night and after having dinner she used to sleep late at night and two hours after having dinner she used to go to bed and her elder sister also used to go to bed two hours after having dinner and there are two cots in their house and one is double cot and other is navar cot and herself, her elder sister and her mother used to sleep on double cot and her father used to sleep on navar cot and she used to sleep in the middle of her mother and elder sister and she used to wake up at 3.00 A.M and used to sleep by covering bed sheet and her mother, elder sister and father also used to cover them with bed sheets and there are two doors to their house and her father was auto mechanic and her father was not in the habit of consuming alcohol and he used to go to work everyday and come to house at night before they slept and one hour after having dinner, her father used to go to bed and on that day her father went to bed late at night and her mother opened the front door of their house and by that time her father already slept and her elder sister also slept by that time and she was waking and even her mother opened the door, her father did not wake up and he also did not wake up in the morning and while Akbar was sitting on her father and pressing his neck, her father did not wake up and died and she stated before police that on that day her mother, father and 23
SC No.205/2019, Dt: 29.04.2022
accused No.1 quarreled and beat with each other and on that day the doctor came to their house and stayed one hour in their house and Pw.1 did not come to their house by that time the doctor was present in their house and Akbar was pressing the neck of her father for one hour and she slightly lifted the bed sheet and witnessed the same and after returned from the school she used to read for sometime and then she goes to bed and after finishing of their reading before going to sleep her parents used to switch off the lights and she stated before police that he came and pressed the neck, sat on her father after sitting of her mother and her mother opened the door and after opening he went outside and at present she is staying with Pw.1 and Pw.1 brought her to the court to give evidence on that day.
She deposed in her cross-examination that she did not state
before police that her mother was sleeping, saw, woke up and asked her
to sleep and slept for sometime as in Ex.D3. The portion of 161 Cr.P.C statement of Pw.9 is marked as Ex.D3 and it is not a major contradiction and does not go to the root of the prosecution case. Moreover, the learned counsels for accused did not confront the Ex.D3 statement of
Pw.9 to her in her evidence. Pw.9 denied the suggestion put by the learned counsel for accused No.1 in her cross-examination that she did not state before police that her mother opened the door and Akbar came inside the house and her mother went outside from their house by weeping and informed the neighbours that her father died. Pw.14, the investigating officer, deposed in his cross-examination that Pw.9 stated
before him that her mother opened the door of the house and A1 came
inside their house and that her mother was weeping and went outside and that she saw the incident by lifting the bed sheet.
24
SC No.205/2019, Dt: 29.04.2022
In Suryanarayana Vs. State of Karnataka in
Crl.A.No.522/1999, dated 03.01.2010, wherein Hon’ble the
Supreme Court of India held that; “The evidence of the child witness cannot be rejected per se, but the court, as a rule of prudence, is required to consider such evidence with close scrutiny and only on being convinced about the quality of the statements and its reliability, base conviction by accepting the statement of the child witness. The witness of PW2 cannot be discarded only on the ground of her being of Teen age. The fact of being PW2 a child witness would require the court to scrutinise her evidence with care and caution. If she is shown to have stood the test of cross-examination and there is no infirmity in her evidence, the prosecution can rightly claim a conviction based upon her testimony alone. Corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. Some discrepancies in the statement of a child witness cannot be made the basis for discarding the testimony. Discrepancies in the deposition, if not in material particulars, would lend credence to the testimony of a child witness who, under the normal circumstances, would like to mix up what the witness saw with what he or she is likely to imagine to have seen. While appreciating the evidence of the child witness, the courts are required to rule out the possibility of the child being tutored. In the absence of any allegation regarding tutoring or using the child witness for ulterior purposes of the prosecution, the courts have no option but to rely upon the confidence inspiring testimony of such witness for the purposes of holding the accused guilty or not.”
27.The learned counsels for the accused mainly argued that
Pw.9 did not depose about the date, time and place of the incident and it was not possible for Pw.9 to see what was happening outside while 25
SC No.205/2019, Dt: 29.04.2022
she covered herself with bed sheet and she deposed that she witnessed from the bed sheet and also while the lights were switched off and also there was no evidence whether the deceased/Abdul came to the house on the date of alleged incident and if really the incident was happening in the presence of Pw.9, she must have raised shouting and the silence on the part of Pw.9 cast suspension regarding the presence of Pw.9 and the prosecution has not proved from the evidence of Pw.9.
Pw.9 categorically deposed in her evidence that herself, her mother and father were in the house and on that day her father went to bed late at night and her mother opened the front door of their house and by that time her father already slept and he also did not wake up in the morning. The evidence of Pw.9 is clear that her father was present in the house on the date of the incident. Pw.9 admitted the question put by the learned counsel for the accused No.2 in her cross-examination that after finishing of their reading before going to sleep, her parents used to switch off lights. The learned counsel for the accused No.2 did not elicit from the evidence of Pw.9 that on that day the lights were switched off at the time of the incident. The non-eliciting of the switching off the lights and the darkness at the time of the incident from the evidence of Pw.9 has not given strength to the version of the accused to come to the conclusion that the prosecution has not proved from the evidence that it was not possible to Pw.9 to witness the incident at the time of commission of the offence. Hence, there is no force in the argument of learned counsels for accused.
28. The learned counsels for the accused argued that if Pw.9 was present, she might have been examined on the next day, but prosecution examined Pw.9 after 13 days from the alleged date of incident and the investigating agency has not examined the elder sister 26
SC No.205/2019, Dt: 29.04.2022
of Pw.9, who was in the room and did not wake up on the date of the alleged incident and the prosecution has not assigned the reasons.
Pw.14, the investigating officer, deposed in his evidence that on 27.02.2019 he secured Pw.9, examined and recorded her statement in the presence of Pw.11 and Pw.1 under the photography of Pw.6 and he filed requisition to record the Section 161 Cr.P.C statement of Pw.9 and Lw.18/Smt.N.Anitha Reddy, I Addl. JFCM, Khammam recorded the
Section 164 Cr.P.C statement of Pw.9 and Ex.P13 is the requsition given to the I Addl. JFCM, Khammam and Ex.P14 is the Section 164 Cr.P.C statement of Pw.9. He admitted in his cross-examination that 13 days after the incident he examined Pw.9 and recorded the statement of Pw.9 at the house of Pw.1. It is evident on record that Pw.9 was present at the time of arrival of police on the next date of incident and also Pws.1 and 2 deposed in their evidence that Pw.9 informed them that she saw the accused No.1 came to their house at night and pressed the neck of deceased and accused No.2 caught hold his legs. It is also evident on record that the elder sister of Pw.9 slept by the time of the incident.
It is obvious from the version of Pw.9 that her elder sister was sleeping by the time of the incident. The learned counsels for the accused could not elicit from the version of Pw.9 that her elder sister was awaking along with her. Even the learned counsels for accused did not put any question to Pw.14, the investigating officer, about the non-examination of the elder sister of Pw.9. The learned counsels for the accused also did not question the Pw.14, the investigating officer, about the reason for non-examination of Pw.9 immediately after the incident.
27
SC No.205/2019, Dt: 29.04.2022
Hon’ble the Supreme Court in the case of Prithvi (Minor)
Vs. Mam Raj reported in (2004) 13 SCC 279 reads as under :
10.....… In Mohd. Khalid v. State of W.B., SCC at p. 349, para 12, this Court observed that: (SCC p. 349, para 12) "Mere delay in examination of the witnesses for a few days cannot in all cases be termed to be fatal so far as the prosecution is concerned.
There may be several reasons. When the delay is explained, whatever be the length of the delay, the court can act on the testimony of the witness if it is found to be cogent and credible."
In the present case the investigating officer, who is Pw.14, informed Pw.11, who is Child Development Project Officer, ICDS
Project, to receive the statement of Pw.9 and on 27.12.2019 when she recorded the statement of Pw.9, the investigating officer has recorded the statement of Pw.9 under 161 Cr.P.C statement.
Pw.9 categorically deposed in her cross-examination that she can read and on that day she has gone through her statement and police did not brief anything in this case and denied the suggestion put by the learned counsel for accused No.1 that the police and Pw.1 gave training to her to give evidence in the court and that she is deposing false.
In Panchhi & Ors. v. State of U.P. [1998 (7) SCC 177],
Hon’ble the Supreme Court of India held that; the evidence of the
child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus an easy prey to tutoring. The evidence of the child witness must find adequate corroboration before it is relied upon as the rule of corroboration is of practical wisdom than of law (vide Prakash v.
State of M.P. 1992 (4) SCC 225, Baby Kandayanathi v. State of Kerala 1993
Supp (3) SCC 667; Raja Ram Yadav v. State of Bihar, 1996 (9) SCC 287;
Dattu Ramrao Sakhare v. State of Maharashtra 1997 (5) SCC 341).
28
SC No.205/2019, Dt: 29.04.2022
In Ballu @ Firoz Khan vs State Of Madhya Pradesh in
Crl.A.No.426 of 2017, dated 08.02.2022, wherein Hon’ble the High
Court of Madhya Pradesh held that; “14. To the same effect is the decision in Shivasharanappa v.
State of Karnataka. Para 17 can be referred to as under: (SCC p. 712) "17.
Thus, it is well settled in law that the court can rely upon the testimony of a child witness and it can form the basis of conviction if the same is credible, truthful and is corroborated by other evidence brought on record. Needless to say, the corroboration is not a must to record a conviction, but as a rule of prudence, the court thinks it desirable to see the corroboration from other reliable evidence placed on record. The principles that apply for placing reliance on the solitary statement of the witness, namely, that the statement is true and correct and is of quality and cannot be discarded solely on the ground of lack of corroboration, apply to a child witness who is competent and whose version is reliable.
43. This Court cannot lose sight of a fact that Aarju (P.W.4) is a minor girl aged about 6 years. Her presence on the spot at the time of incident is undisputed. Every human being is not expected to act in an uniform manner. Some may react and some may stand still. Further, the appellant was her uncle and he was not a stranger. If She was unable to understand the things which were going on or She could not raise an alarm, then it would not mean, that She had not witnessed the incident”.
Hence, there is no force in the argument of learned counsels for accused.
29.Pw.1 has denied the suggestion put by the learned counsel for accused No.1 in his cross-examination that he did not state before police that daughter of deceased stated to him that she peeped by lifting the blanket and that she did not shout due to fear that they would also kill her and that her parents quarreled with each other and as such she woke up till 29
SC No.205/2019, Dt: 29.04.2022
late night. Pw.14, the investigating officer also deposed in his cross- examination that Pw.1 did not state before him that “then he questioned why should she wake up till that night and she replied that her parents quarreled with each other and due to that she woke up and when he questioned her how she witnessed the same, she replied that she peeped by lifting the bed sheet and that when he asked her why she did not shout, she said that due to fear she did not raise any shoutings.” The learned counsel for accused No.1 did not put any question to Pw.9 during in her evidence whether she told Pw.1 about her seeing the incident and due to fear she did not raise any shoutings in order to contradict her version to the version of Pw.1. Pw.9 categorically deposed in her cross-examination that she stated before police that on that day her mother, father and A1 quarreled with each other.
30.Pw.2 denied the suggestion put by the learned counsel for accused No.1 in her cross-examination that she did not state before police that her younger grand daughter stated to her that she saw accused No.1 sat on the chest of deceased and pressed his neck and accused No.2 caught hold his legs firmly. Pw.14, the investigating officer, deposed in his cross-examination that Pw.2 did not state before him that Pw.9 stated to her that she saw accused No.1 sat on the chest of deceased and pressed his neck and accused No.2 caught hold his legs firmly. Pw.3, deposed in her cross-examination that she stated to police that she asked Pw.1 about the reason for the death of deceased and he stated the same and further denied the suggestion put by the learned counsel for accused No.1 that she did not state to police that she asked Pw.1 about the reason for the death of the deceased and he stated the same and also denied the suggestion put by the learned counsel for accused No.1 that she stated to police that her younger sister telephoned to her. Pw.14, the investigating officer, deposed in his cross-examination that Pw.3 did not state before him that her sister telephoned to her and informed that Abdul died and that she 30
SC No.205/2019, Dt: 29.04.2022
asked Pw.1 about the reason for the death of the deceased. Pw.4 denied the suggestion put by the learned counsel for accused No.1 in her cross- examination that she did not state to police that the opposite house inmates by name Koteswara Rao and Muthyalu came out from their houses and that Koteswara Rao tried to telephone Pw.1. Pw.14, the investigating officer, deposed in his cross-examination that Pw.4 did not state before him that the opposite house inmates by name Koteswara Rao and Muthyalu came out from their houses and they all went to the house of A2 and
Koteswara Rao tried to telephone Pw.1, but his cell phone was switched off.
31.The learned counsels for the accused have argued that all the witnesses are relatives of deceased and report was given on the next day at 10.00 A.M and more than 10 hours delay and prosecution did not come to correct approach and hence sent viscera to FSL and there is no evidence about the protest of deceased by using hands and the bed sheet was not disturbed on cot and no incident took place in the house of the deceased and the deceased died due to any other reason in somewhere and the family members of the deceased requested the police and with the help of police they foisted false case against accused and that the deceased never came to his house on the date of the alleged incident and that he consumed heavy alcohol and due to suffering of fits he died.
Pw.1 deposed in his cross-examination that at 10.00 A.M he drafted the report and gave to police and he drafted the report at his house. Pw.14, the investigating officer, admitted in his cross-examination that there is a delay of 10.00 hours in giving Ex.P1/Report to police.
I have perused Ex.P1/Report, where it is mentioned that Pw.1 intimated to his relatives that his brother died due to fits and in the morning he shifted the dead body of his brother from inside the house to varanda and observed a ligature mark on the neck of his brother and enquired the daughters of deceased on suspicion. Ex.P12/F.I.R reveals that the reason for delay in reporting by the complainant is due to telephoning to all his 31
SC No.205/2019, Dt: 29.04.2022
relatives. The prosecution has explained the delay from Exs.P1 and P12.
The learned counsels for accused did not question Pw.1 with regard to the alleged delay in giving Ex.P1/Report. Pw.14, the investigating officer, has deposed in his cross-examination that the dead body was placed in the varanda when he visited the house of deceased. Pw.1 deposed in his cross-examination that the navara cot and blanket were in normal and not in disturbed condition. As already mentioned in Ex.P1 that Pw.1 shifted the dead body of deceased from inside the house to varanda at the initial stage before suspicion, the foldings and disorder of the blanket might not have been appeared because of the proper arrangement of blanket on the cot. Except the mere contention that the deceased died due to any other reason and consumed heavy alcohol and due to suffering of fits in somewhere, the accused did not prove from any source of evidence and even could not elicit from the evidence of prosecution witnesses to rebut the evidence of prosecution and to support their contention. Moreover, the place of death of the deceased was in the house of deceased and accused
No.2.
Pw.12, the medical officer, deposed in his evidence that on 15.02.2019, he received requisition from C.I of Police, Wyra to conduct postmortem examination over the dead body of deceased/Shaik Abdul and accordingly he commenced postmortem examination on 15.02.2019 at 14.10 hours and found antimortem injuries i.e., 1) fracture right horn of hyoid bone, 2) Three abrasions 1 x 1/8 inch (Nail pricks) i. Left side of nose, ii. Left upper lip and iii. Right side of anterior neck, 3) Abrasion 1 x 1/2 inch right lower lip, 4) Ligature mark 3 x 1/2 inch transverse over thyroid cartilage extending from below chin & middle of anterior neck to the left side up to sternocledomastoid region and 5) Contusion 1 inch around ligature mark is present. Sub cutaneous bruising present below and around ligature mark and he sent stomach, small intestine and its contents, liver and kidneys to RFSL for analysis and report and he received RFSL report 32
SC No.205/2019, Dt: 29.04.2022
stating that no poisonous substance is found in the viscera and basing on the RFSL report he gave final opinion that the cause of death due to his knowledge is cardio respiratory arrest due to asphyxia due to pressure on neck and Ex.P8 is RFSL report and Ex.P9 is the postmortem examination report.
His cross-examination revealed that the ligature marks are possible with thread or with stick and ligature mark will be caused by pressure on the body and he did not notice any thumb mark or finger mark on the body of the deceased and ligature mark will be caused by one person.
The duration of a time for the death of a person by throttling depends upon the force used and if high pressure is used in throttling, the death will be caused immediately and if average pressure is used, the death will be caused in 10 minutes and if both hands are used for throttling on both sides from the front of the victim, the presence of thumb marks of assailant in both sides on the front of neck of the victim is possible and there is a possibility of appearing of both thumb marks and finger marks if both hands are used to throttle the victim and if both hands are used from the front side of the victim there is possibility of presence of thumb marks on anterior part of neck and on both lateral parts of the neck and no injuries are found on the back side of neck of the deceased and if the hands are skid during throttling, the injuries will appear on the jaw of the victim and admitted that if a person suffering from fits fell on the ground, he will become unconscious and the person does not know where he fell down and admitted that the hyoid bone fracture is possible if a person suffering from fits fell on a iron strip or stone or wood and the second injury is not possible if a person fell on a thorn bush and on physical observation and on measuring the injuries he found that the injuries were caused with nails and the injury on left side nose and left upper lip at injury No.2 are not possible by throttling and the injury No.3 at right lower lip is not possible by throttling and further admitted that the age of injuries are not mentioned in 33
SC No.205/2019, Dt: 29.04.2022
postmortem examination report and time of death of the deceased is about 2.00 A.M prior to the commencement of postmortem examination and admitted that the contusion injury will change in the duration of time and he did not mention the colour of contusion injury in postmortem examination report.
Pw.12 denied the suggestion put by the learned counsel for accused No.1 in his cross-examination that the injuries mentioned in postmortem examination are not possible by throttling. It is obvious from the version of Pw.12 that the injuries on the dead body of the deceased particularly injuries No.1, 4 and 5 are possible by throttling and injuries
No.2 were caused with nails. The accused have failed to prove that the injuries No.1, 4 and 5 are not possible by throttling and injuries No.2 were not caused by nails and also failed to establish their contention that the injuries sustained by the deceased were not at the house of deceased.
The sending of viscera of deceased to RFSL does not mean that the prosecution did not come to correct approach and in order to give final opinion of Pw.12 the same were sent to RFSL. The evidence of Pw.9 coupled with Pw.11 has established the meaning ‘Duppatlonundi’ that at the time of incident Pw.9 was under the blanket covered on her body, which signifies that she did not completely removed the blanket from her body and she was in the blanket. Since she is a child, peeping the incident by lifting the blanket gives the meaning that she witnessed the incident from the blanket which covered her body, by slightly lifting it. Pw.9, who is the eye witness, categorically deposed in her evidence that accused No.1 pressed the neck of the deceased with both the hands.
In Ashok Debbarama @ Achak Debbarama Vs. Stateof
Tripura 2014(4) SCC 747 the Hon’ble Apex Court held “if evidence tendered by witness in witness box is credit worthy and reliable, that evidence cannot be rejected merely because a particular statement 34
SC No.205/2019, Dt: 29.04.2022
made by witness before court does not find place a statement recorded under section 161 Cr.P.C.
In Mohabbat Vs. State of Madhya Pradesh (2009) 13
SCC 630 wherein the Hon’ble apex Court held that “relationship is not a ground affecting the credibility of a witness, That it is unreasonable to contend that evidence given by related witness should be discarded only on the ground that such witness is related”.
In Alagupandi @ Alagupandian vs State Of Tamil Nadu
in AIR 2012 SC 2405, Hon’ble the Supreme Court of India has
referred the citations in the Judgment;
In the case of Namdeo v. State of Maharashtra, [(2007) 14 SCC
150]. This Court drew a clear distinction between a chance witness and a natural witness. Both these witnesses have to be relied upon subject to their evidence being trustworthy and admissible in accordance with the law.
29. It was then contended that the only eyewitness, PW 6 Sopan was none other than the son of the deceased. He was, therefore, “highly interested” witness and his deposition should, therefore, be discarded as it has not been corroborated in material particulars by other witnesses. We are unable to uphold the contention. In our judgment, a witness who is a relative of the deceased or victim of a crime cannot be characterized as “interested”. The term “interested” postulates that the witness has some direct or indirect “interest” in having the accused somehow or the other convicted due to animus or for some other oblique motive.”
20. It will be useful to make a reference of another judgment of this
Court, in the case of Satbir Singh & Ors. v. State of Uttar Pradesh, [(2009) 13 SCC 790], where this Court held as under:
35
SC No.205/2019, Dt: 29.04.2022
“26. It is now a well-settled principle of law that only because the witnesses are not independent ones may not by itself be a ground to discard the prosecution case. If the prosecution case has been supported by the witnesses and no cogent reason has been shown to discredit their statements, a judgment of conviction can certainly be based thereupon.
Furthermore, as noticed hereinbefore, at least Dhum Singh (PW 7) is an independent witness. He had no animus against the accused. False implication of the accused at his hand had not been suggested, far less established.”
For the forgoing reasons, it is safely concluded that there is no force in the arguments of learned counsels for accused.
32. The learned counsels for the accused have relied upon the decision in Hari Om alias Hero Vs. State of Uttar Pradesh in 2021
Crl.J.1062. The facts of that case are not applicable to the facts and circumstances of the present case on hand. In that case the child witness herself was injured and there are inconsistencies and there was an absence of substantive piece of evidence.
The learned counsels for the accused have relied upon another decision reported in Chunthuram Vs. State of Chattisgad 2001 Crl.J 46. The facts of that case are not applicable to the facts and circumstances of the present case on hand. In that case the eye witness had poor vision and hearing capacity and no material was shown any proximate and immediate motive for crime.
The learned counsels for the accused have relied upon another decision reported in State of Andhra Pradesh Vs. Shaik alias Mohammad Karimulla 2016 Crl.J.4043. The facts of that case are not applicable to the facts and circumstances of the present case on 36
SC No.205/2019, Dt: 29.04.2022
hand. In that case the court held that the statement of eye witnesses were not reliable because of inconsistencies relating to manner of the incident.
The learned counsels for the accused have relied upon the decision reported in Boya Bogam Pedda Maddilety & Others Vs.
State of Andhra Pradesh 2021 Crl.J.809. The facts of that case are not applicable to the facts and circumstances of the present case on hand. In that case the statement of eye witnesses recorded after 15 days of incident and he never informed the incident to anybody and the court held that the short comings in evidence of witnesses leading to serious doubts and the medical evidence falsifying oral evidence.
The learned counsels for the accused have relied upon the decision reported in Sangali @ Sanganathan Vs. State of
Tamilnadu 2014 Crl.J.4519. The facts of that case are not applicable to the facts and circumstances of the present case on hand. In that case the prosecution rests on the circumstantial evidence and there are no eye witnesses and the court held that the chain should be such that no other conclusion, except the guilt of the accused person, is discernible without any doubt.
The learned counsels for the accused have relied upon the decision reported in Anil Sham Rao Sute and another Vs. State of
Maharashtra 2013 Crl. J.2223. The facts of that case are not applicable to the facts and circumstances of the present case on hand.
In that case there is no statement in F.I.R that the other accused assaulted the deceased and whether the version given by witness in
F.I.R that accused Nos.1 and 2 assaulted the deceased has to be accepted or whether the version by her in the cross-examination that 37
SC No.205/2019, Dt: 29.04.2022
accused Nos.1 and 2 only dragged the deceased with accused No.3 and accused No.3 assaulted the deceased with others is to be accepted is the question and the panch witnesses turned hostile and there is no evidence on record which can support the prosecution case and the court held that suspicion however strong, cannot take the place of proof.
The learned counsels for the accused have relied upon the decision reported in Venu Prem Kumar @ Bobby and Mekala Prem
Kumar and others Vs. State of A.P 2014 Law Suit (A.P) 456.
The facts of that case are not applicable to the facts and circumstances of the present case on hand. In that case Pw.1 stated that Ex.P1 is a recorded statement by a person unknown to her and Pw.2 stated that
Ex.P1 was drafted by her in her house and the name of Pw.4 and another was not disclosed in the F.I.R or in the statements of Pws.1 to 3 and the witness though figured as Lw.7 in the list of witnesses was given up and the court held that the omission of such an important witness is indeed fatal to the case of prosecution.
The learned counsels for the accused have relied upon the decision reported in Mahavir Singh Vs. State of Madhya Pradesh 2017 Crl.J.749. The facts of that case are not applicable to the facts and circumstances of the present case on hand. In that case certain criminal proceedings were pending between the accused and his family members and one case had already been filed by accused prior to the incident and there was an altercation between the wife of deceased and
Dhullu and nowhere the name or presence of eye witness was mentioned.
The learned counsels for the accused have relied upon the decision reported in State of Rajasthan Vs. Tejasingh and others 2001 Crl.J.1176. The facts of that case are not applicable to the facts 38
SC No.205/2019, Dt: 29.04.2022
and circumstances of the present case on hand. In that case the accused not being strangers to those villagers could have easily identified them by not examining those independent witnesses the prosecution has failed to produce the available independent corroborative evidence to support the evidence of interested witnesses and there was a delay of F.I.R reaching to the Magistrate and after 5 days of the crime the evidence of eye witness was recorded though he was available in the village and the explanation given by the investigating officer is not at all satisfactorily and the eye witnesses did not support the case of prosecution.
33.Pw.13, the Nodal Officer, Bharathi Airtel Limited, Hyderabad, revealed in his evidence that on 19.03.2019, Nodal Officer Airtel,
Hyderabad received a letter from Addl. D.G.P Law and Order, Khammam requesting for hard copies of call detailed reports (CDRs.) and customer application for the mobile number No.96765 51387 for the period of 14th day and 15th day of February, 2019 and their office has provided call detailed reports (CDRs.) and customer application form for the same along with certificate for the CDRs. as per Section 65-B of Indian
Evidence Act and Ex.P10 is original Section 65-B Certificate and Ex.P.11 is the attested copy of customer application along with I.D proof of the applicant and further revealed that in general their office furnishes the attested photo copies to the police and the original customer application along with I.D proof of the applicant is available in the warehouse of their company. His cross-examination revealed that he has not submitted any document to show his possession in the company and his identity card does not disclose his possession in the company except the employee of the company and endorsement of nodal office of their company for receiving the requisition of police and the original 39
SC No.205/2019, Dt: 29.04.2022
requisition is in their office and he did not bring the original documents from their company and he cannot say by seeing Ex.P10 the number of incoming and outgoing calls of the mobile number 96765 51387 and he does not know whether Ex.P11 is admissible in evidence or not since it is a photocopy and further revealed that “attested” is not mentioned on
Ex.P11 and he cannot say whether Ex.P11 is not valid in evidence as it is not compared with original and admitted that any telephone service provider has nodal officers and that he is giving evidence as per the documents given by their office and he has no personal involvement while providing Ex.P10 and Ex.P11 and admitted that there are other two nodal officers in their office and he did not bring any authorization letter from their office to give evidence in this case and the documents with respect to customer application form i.e., Ex.P11 are available in their office and in case of attested documents the official seal of attesting officer should be affixed and admitted that there is no attestation or the designation stamp of attesting officer on Ex.P11.
Pw.14, the investigating officer, has deposed in his evidence that on 28.02.2019 he secured the presence of Pw.10 and Lw.15/Shaik Rafi and examined and recorded their statements and he obtained 65-B Certificate, CDR and Customer application form i.e., Ex.P10 and
Ex.P11 from the Nodal officer, Bharathi Airtel, Hyderabad. Moreover, the accused No.1 never denied that the cell phone number 94921 26763 does not belong to him. The version of prosecution is that the cell number of the deceased is 96765 51387 and the cell number of the accused No.1 is 94921 26763. Ex.P11 proves that the application form with the cell number belongs to the deceased. The cell number of the accused No.1 94921 26763 pertaining to MO.1, which was seized from him and the call data shows that the outgoing call from the cell number 96765 51387 on 14.02.2019 is to the cell number 94921 26763.
40
SC No.205/2019, Dt: 29.04.2022
34. The evidence of Pws.1 to 5 corroborated the version of prosecution that on the date of incident the accused No.2 informed
Pw.4, who is her neighbour, that the deceased died due to fits and to communicate the same to Pw.1. The evidence of Pw.10 has corroborated the version of prosecution that on the date of the incident the accused
No.1 left them on receiving phone call. The evidence of Pws.6 and 7 has corroborated the version of prosecution regarding the observation of scene of offence coupled with Exs.P3 and P4. The evidence of Pw.8 has corroborated the version of Pw.14 with regard to the seizure of MO.1 at the instance of accused No.1 and the evidence of Pw.13 has corroborated the version of prosecution regarding the outgoing call from the mobile of the deceased to the number of the accused No.1 on the relevant date and time of the incident, which was received by accused
No.1 from his mobile (MO.1) evidenced under Ex.P10 and Ex.P11 along with CDR enclosure. The evidence of Pw.11 has corroborated the version of prosecution regarding her recording of the statement of Pw.9 under Ex.P7. The medical evidence has corroborated the ocular evidence from the version of Pw.12 under Ex.P8 and Ex.P9. The circumstantial evidence has corroborated the evidence of Pw.9, who is the natural witness to the incident and supported the version of prosecution that on the date of the incident at the relevant time both accused Nos.1 and 2 together committed the murder of the deceased.
35.For the forgoing reasons and in the light of the above decisions, I have no hesitation to conclude that the cumulative effect of the above mentioned facts taken together is conclusive in establishing the guilt of accused Nos.1 and 2 and the evidence on record proved that accused No.2, who is the wife of the deceased, was having illegal contact with the accused No.1 and though the deceased and Pws.1 41
SC No.205/2019, Dt: 29.04.2022
and 2 admonished her, she did not change her attitude and on the date of the incident at night, with the accessibility of accused No.2, the accused No.1 entered into the house of the deceased and both the accused together committed the murder of the deceased, while he was sleeping on the cot in the house, with a common intention to get rid of him and the same had been witnessed by the younger daughter of the deceased, who is Pw.9 and the natural witness. The prosecution has proved the case against the accused Nos.1 and 2 for the offence punishable U/Sec.302 r/w 34 of IPC beyond reasonable doubt.
36. In the result, the accused Nos.1 and 2 are found guilty for the offence U/Sec.302 r/w 34 of IPC.
Typed to my dictation by the Typist, corrected and pronounced by me in the open court on this the 29th day of April, 2022.
IV Addl. Sessions Judge (FTC), Sathupally.
QUANTUM OF SENTENCE
When the accused No.1 is asked about the question of sentence under section 235 (2) Cr.P.C., Accused No.1 pleaded mercy by stating that he is sole bread winner of his family.
When the accused No.2 is asked about the question of sentence under Section 235 (2) Cr.P.C., Accused No.2 pleaded mercy by stating that she has two small children and she is the sold bread winner of her family.
The offence committed by the accused Nos.1 and 2 against the deceased is the brutal and heinous offence. Such offenders should not be dealt with any kind of leniency, since the sentence in a criminal case should have a social object of serving the society as a whole so as to operate as a deterrence to the persons having similar bent of mind and also to prevent them from the committal of such offences in future.
42
SC No.205/2019, Dt: 29.04.2022
37.In the result, the accused Nos.1 and 2 are found guilty for the offence U/Sec.302 r/w 34 of IPC and accordingly they are convicted under Section 235(2) Cr.P.C and sentenced to undergo life imprisonment each and to pay a fine of Rs.5,000/- (Rupees five thousand only) each, in default of payment of fine, they shall undergo simple imprisonment for three months each. MOs.1 to 3 are ordered to be destroyed after appeal time is over.
Since accused Nos.1 and 2 are convicted for life they are not entitled to set off under Section 428 of Cr.P.C at present and the period of judicial custody of accused No.1 is from 20.02.2019 to 27.04.2019 i.e., (2 months 7 days) and the period of judicial custody of accused No.2 is from 20.02.2019 to 09.05.2019 i.e., (2 months 19 days) for consideration of remission if any under Section 433 Cr.P.C by the
Government in future. A free copy of this Judgment shall be immediately furnished to the accused under Section 363 of Cr.P.C.
Typed to my dictation by the Typist, corrected and pronounced by me in the open Court on this the 29th day of April, 2022.
IV Addl. Sessions Judge (FTC), Sathupally.
Appendix of Evidence
For Prosecution: For Defence:
PW.1: Shaik Fareed -None-
PW.2: Shaik Mahaboobi
PW.3: Shaik Shakeera
PW.4: Shaik Saheda Begum
PW.5: Patan Nizam
PW.6: Aduri Prem Kumar
PW.7: Miryala Srinivasa Rao @ Srinu
PW.8: Pothaboina Narsimha Rao
PW.9: Shaik Sameera 43
SC No.205/2019, Dt: 29.04.2022
PW.10: Shaik Mansor Ali @ Moin
PW.11: N.Dayamani
PW.12: Dr.B.Srinivas
PW.13: B.C.Ramaiah
PW.14: A.Ramakanth
Exhibits Marked
For Prosecution: For Defence:
Ex.P1: is the report Ex.D1-Portion of 161 Cr.P.C Statement of Pw.2
Ex.D2-Portion of 161 Cr.P.C Statement of Pw.3
Ex.D3-Portion of 161 Cr.P.C statement of Pw.9
Ex.P2: Photographs (3) in number
Ex.P3: is the Crime details form
Ex.P4: is the Inquest Panchanama
Ex.P5: is the Confession Panchanama
Ex.P6: is the Recovery Panchanama
Ex.P7: is the attested copy of the statement of minor girl (Marked subject to objection)
Ex.P8: is the RFSL report
Ex.P9: is the Postmortem Examination Report
Ex.P10: is the Original Sec.65-B Certificate
Ex.P11: is the attested photo copy of customer application along with ID Proof of the applicant (Marked subject to objection)
Ex.P12: is the First Information Report
Ex.P13: is the Requisition given to the I Addl. JFCM, Khammam
Ex.P14: is the Sec.164 Cr.P.C statement of Pw.9
Material Objects: MO1: Redmi Note 5 Pro Gold Mobile
MO2: Pillow with cover MO3: Kanduva (Towel)
IV Addl. Sessions Judge (FTC), Sathupally.
44
SC No.205/2019, Dt: 29.04.2022
CALENDER
IN THE COURT OF THE IV ADDITIONAL SESSIONS JUDGE (FAST
TRACK COURT) AT SATHUPALLY
SESSION CASE No.205 of 2019
Between:- The State Circle Inspector of Police, Wyra …Complainant AND
1) Shaik Akbar S/o Afzal, Age: 24 years, Muslim, Occu: Two wheeler Mechanic, R/o Near Balaji Towers, Wyra Village and Mandal, Khammam district.
2) Shaik Hameedha W/o Late Abdul, Age: 25 years, Muslim, Housewife, R/o Near MDO Office, Wyra Village and Mandal, Khammam district. …Accused No.1 and 2 Charge Under Section 302 r/w 34 of IPC PRC No.15/2019 on the file of Addl. Judicial Magistrate of First Class at Madhira. Committed by : Sri.K.Srikanth, Addl. Judl. Magistrate of First Class, Madhira. Crime No.42/2019 of P.S Wyra. Description of the accused : As mentioned above.
Occurrence 14.02.2019 15.02.2019 Complaint or Report
Apprehension of A1 and A2 20.02.2019
Release of A1 and A2 A1 on 28.04.2019 and A2 on 10.05.2019
Commencement of Trial 24.11.2021
Closure of Trial 23.12.2021
Judgment 29.04.2022
Plea of accusedPleaded not guilty
Finding of the CourtAccused No.1 and 2 are found guilty
Order and Sentence In the result, the accused Nos.1 and 2 are found guilty for the offence U/Sec.302 r/w 34 of IPC and accordingly they are convicted under Section 235(2) Cr.P.C and sentenced to undergo life imprisonment each and to pay a fine of Rs.5,000/- (Rupees five thousand only) each, in default of payment of fine, they shall undergo simple imprisonment for three months each. MOs.1 to 3 are ordered to be destroyed after appeal time is over. Since accused Nos.1 and 2 are convicted for life they are not entitled to set off under Section 428 of Cr.P.C at present and the period of judicial custody of accused No.1 is from 45
SC No.205/2019, Dt: 29.04.2022
20.02.2019 to 27.04.2019 i.e., (2 months 7 days) and the period of judicial custody of accused No.2 is from 20.02.2019 to 09.05.2019 i.e., (2 months 19 days) for consideration of remission if any under Section 433 Cr.P.C by the Government in future. A free copy of this Judgment shall be immediately furnished to the accused Nos.1 and 2 under Section 363 of Cr.P.C.
IV Addl. Sessions Judge (FTC-III), Sathupally.