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IN THE COURT OF THE II ADDITIONAL METROPOLITAN SESSIONS JUDGE:
AT HYDERABAD
Present: Sri S.Radhakrishna Murthy, II Addl. Metropolitan Sessions Judge, Hyderabad.
FRIDAY, THE 16th DAY OF MARCH, 2018
SESSIONS CASE NO. 5 OF 2012
( in PRC No. 63 of 2011 )
Committed by Sri Md.Nizamuddin, VII Addl. Chief Metropolitan Magistrate, Hyderabad. Crime Number and Police StationCrime No. 111 of 2011 of Malakpet P.S., Hyderabad. Name and description of the K.Krishna Kishore S/o Late K.Venkata accusedNarayana Rao, Aged 40 years, Occ: Pvt. Teacher, R/o H.No.7-1-171, Reddy Enclave Temple AlwalTemple,Lothkunta, R.R.District, N/o H.No.3-136, Mareedu Vari Veedi, Gudivada (V & M), Krishna District. Name and description of the The Inspector of Police, PS Malakpet, ComplainantHyderabad. Prosecution conducted byAddl. Public Prosecutor. Accused defended bySri P.Rana Kamalasan, Counsel for the Accused. Offence chargedU/Section 302 of IPC. Plea of the accusedNot guilty. Finding of the CourtGuilty. ResultIn the result I find that the accused is guilty for the charge under Section 302 of IPC. Therefore, I convict the accused for the said charge under Section 235 (2) Cr.P.C. The MOs.1 to 6 shall be destroyed after expiry of appeal time. The M.Os 1 to 6 shall be destroyed after expiry of appeal time.
(1)The accused is heard with regard to quantum of sentence. He submitted that he is having old aged mother, he is working as a Teacher in a private school at Gudiwada and he is earning only Rs. 10,000/- per month and his old aged mother is dependent on him and he is maintaining his mother. Therefore, he prayed this court to take a lenient view while imposing the sentence.
(2)After hearing the submissions made by the accused and in view of the facts and 2
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circumstances of the case and also based on the settled principles of law imposing sentence of rigorous LIFE imprisonment will meet the ends of justice for the offence under Section 302 of IPC.
(3)Therefore, the accused is sentenced to undergo Rigorous LIFE Imprisonment and also to pay a fine of Rs. 1,000/- (Rupees ONE THOUSAND only) for the charge under Section 302 IPC, in default of payment of fine, he has to further undergo Simple Imprisonment for a period of three (3) months.
J U D G M E N T
IThe Inspector of Police, PS Malakpet, Hyderabad, has filed a charge sheet in Crime No.111/2011 for the offence under Section 302 of IPC against the accused person.
II The case of the prosecution in brief is as follows :
(a)On 27-03-2011 at 11.00 hours, the defacto complainant Sri Kasani
Naga Vasu (PW1), lodged a report with the police Malakpet stating that his sister
Kasani Ramadevi (deceased), got married to K. Krishna Kishore (accused) on 24- 03-2011 at 10.04 a.m. at Venkateshwara Swamy Temple, Tirumala Hills,
Asmangadh, Malakpet, Hyderabad. They arranged one house for the bridegroom and his mother for their temporary stay in Asmangadh area. After the marriage his sister (deceased) joined with her husband (accused), mother-in-law and other relatives in that temporary house for the night. Subsequently, on the next day i.e. on 25-03-2011, they arranged first night for the newly couple in his house i.e. Flat
No.207, Hill Top Apartments, Asmangadh, Malakpet, Hyderabad. On 26-03-2011, the accused collected the gold ornaments from his sister and left to his house situated at Alwal and informed that the ornaments have been kept in the bank locker. The accused again visited their house on the same day evening i.e. on 26- 03-2011, to participate with his bride (deceased) for second night. Both the bride 3
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and bridegroom slept in their house and they all slept in neighbours house. As the inside bolt of the main door of their house was not properly functioning, as such, it was locked to main door from outside by PW.2. On 27-03-2011 at about 5.30 a.m.
the accused called PW2 Smt Veeranki Venkata Kumari (maternal aunt of PW1 and the deceased) from the phone of his sister (deceased) and requested to open the door as the accused wanted to visit his mother, who was at Alwal. Hence, PW2 opened the door and the accused left to Alwal. When PW2 entered into the bed- room, she found his sister (deceased) in an unconscious condition and they informed to all and with the help of their neighbors, they shifted his sister to
Osmania General Hospital, where the doctors declared her as brought dead. The accused killed his sister during the night hours and left the place in the early hours.
(b)Basing on the above complaint of PW1, Sri N.A. Ashok Kumar (PW10), S.I of Police registered a case in Cr.No.111/2011 under Section 302 of IPC and took up the investigation. During the course of investigation, PW10 examined and recorded the statement of PW1, wherein PW1 narrated the facts of FIR. Then,
Sri. V. Ravi Kumar (PW11), Inspector of Police, took up the investigation from PW10 and informed to superior officers about the brutal murder. PW11 visited the scene of offence and secured the presence of P. Bakthavastal (PW5) and D. Santosh (LW8) and in their presence conducted the scene of offence observation panchanama and also drawn rough sketch of the scene. PW11 visited Osmania General Hospital
Mortuary and recorded the statements of the blood relatives of the deceased and they also corroborated the facts of PW1.
(c)Smt Waheeda Khatoon (PW8) visited Osmania General Hospital
Mortuary, on the requisition of PW11 and examined PW1 and recorded his detailed statement and conducted inquest over the dead body of the deceased in the presence of Smt Raja Gayatri (LW9) and Sri C. Raju (PW6) and found two scratches over right upper arm and elbow of the deceased. By hearing the version 4
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of complainant (PW1) and his blood relatives, the mediators con-jointly opined the cause of death might be due to smothering with the pillow by the husband of the deceased or due to strangulation as she resisted to participate in sexual intercourse with her husband, who was behaving violently and roughly which was not accustomed by the deceased as she was newly married two days ago i.e. on 24-03- 2011. PW11 took the photographs of the dead body of the deceased with digital camera. After inquest, the dead body of the deceased was subjected to autopsy. Dr.
M. Sugatha (PW9) conducted autopsy over the dead body of the deceased and opined the cause of death of the deceased was due to “SMOTHERING – AN
ASPHYXIAL DEATH”. After PME the dead body of the deceased was handed over to PW1 for performing last rites.
(d)On 29-03-2011 at 3.50 p.m. the accused was arrested near Samitha
Degree College, Asmangadh, Malakpet by PW11 along with his staff and on interrogation, the accused confessed about the commission of the offence. Then,
PW11 secured the presence of Manda Yadagiri (LW11) and C. Parmesh (PW7) and in their presence recorded the confessional statement of the accused and at his instance the pillow which was used in the commission of offence was seized from the bed room of the deceased in the presence of said mediators. Then the accused was brought to PS, effected his arrest duly informing him the grounds of his arrest by issuing arrest memo and the arrest intimation was given to his mother Smt K.
Laxmi Devi under proper acknowledgment. After collecting relevant documents and on completion of investigation, PW11 filed charge sheet against the accused for the offence punishable under Section 302 of IPC.
IIICognizance of the case was taken against the accused for the offence under Section 302 of IPC and numbered the same as PRC No. 63/2011 on the file of the VII Addl. Chief Metropolitan Magistrate, Hyderabad. On appearance of the accused, copies of the case documents were furnished to him as contemplated 5
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under Section 207 of Cr.P.C before the trial court. Since the offence under Section 302 of IPC is exclusively triable by the Court of Sessions, the learned Magistrate has committed the case to the Metropolitan Sessions Judge, Hyderabad, by following the due procedure as contemplated under Section 209 Cr.P.C.
IVThe case was registered as S.C No. 5 of 2012 by the Hon'ble
Metropolitan Sessions Judge, Hyderabad and made over the same to this court for disposal according to law. On appearance of the accused and upon hearing both sides, charge under Section 302 of IPC was framed against the accused, read over and explained to him, wherein the accused denied the charge, pleaded not guilty and claimed to be tried.
VDuring the course of trial, the prosecution has examined PWs 1 to 11 and got marked Exs. P1 to P12 and MOs 1 to 6. After the closure of prosecution evidence, the accused was examined under Section 313 Cr.P.C by explaining the incriminating material appearing against him from the prosecution evidence and the accused denied the same and reported no defence evidence. Ex.D1 is got marked on behalf of the defence.
VIHeard the arguments from both sides.
(1)The learned Addl., Public Prosecutor submitted his arguments that the accused caused the death of the deceased by smothering. There is circumstantial evidence from P.Ws 1 to 4 establishing the fact that the accused was along with the deceased on the night at the place of occurrence as on the date of incident. Hence, the accused is alone caused the death of the deceased by smothering. The inquest panchanama and also postmortem examination report shows that the accused died due to smothering. The antimortem injuries deposed by the doctor who conducted postmortem examination will show that there was some resistance by the deceased as such the deceased received several antimortem injuries at the 6
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time of smothering. The prosecution witnesses all have supported the prosecution case and the prosecution proved its case beyond reasonable doubt against the accused for the charge under Section 302 of IPC. Hence, the accused is liable for conviction and appropriate sentence.
(2)Whereas, the learned counsel for the accused submitted his arguments that the accused was never present as on the date of incident which was known as second night after the marriage, even though the deceased died under suspicious circumstances the accused is not responsible. The learned counsel for the accused took the plea of alibi by saying that the accused was not at all available at the scene of offence and he never visited the house of the deceased for second night and he is not responsible for the death of the deceased. P.Ws 1 to 4 are the near relatives and the remaining witnesses are also known to the PW.1 and they are planted witnesses. PW.1 foisted a false case against the accused by fabricating the evidence by planting the witnesses. The prosecution failed to prove its case against the accused beyond reasonable doubt for the charge under Section 302 of IPC.
Therefore, the accused is entitled for acquittal.
VII Now the point for determination is :
“Whether the prosecution has proved the guilt of the accused for the offence punishable under Section 302 of IPC beyond all reasonable doubt?”
VIII POINT:- (1)It is necessary to mention the relevant provisions under Sections 300 and 302 of IPC as follows:
(i) Section 300 of IPC reads as follows:
“Except in the cases hereinafter excepted, culpable homicide is murder, it the act by which the death is caused is done with the intention of causing death, or 7
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Secondly – If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or
Thirdly – If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or
Fourthly – If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.”
(ii) 302. Punishment for murder:- “Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine”.
(2)In this case, PW.1 Kasani Naga Vasu is the defacto complainant and brother of the deceased. PW.2 Smt. Veeranki Venkata Kumari is the maternal aunt of the deceased. PW.3 D. Krishna Varaprasad is the maternal uncle of the deceased.
(3)According to the evidence of PW.1 (K. Naga Vasu), the defacto complainant in this case, the deceased Rama Devi is his elder sister. Both the parents were died hence the deceased was living with him. About 5 years ago, V.
Venkata Kumari (PW.2) who is sister of his mother and also her daughter V. Sai
Karuna (LW.5) came to Hyderabad and started living with them for the purpose of education of Sai Karuna (LW.5). On 24-03-2011, the marriage of the deceased was performed with the accused. PW.1 identified the accused who is standing in the court. PW.1 further deposed that they presented 5 tulas of gold chain to the deceased and ½ tula of gold ring to the accused in the marriage. In the marriage on behalf of the accused, only his mother and one mediator attended the marriage.
There were no relatives and friends on behalf of the accused attended the marriage.
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But on behalf of the deceased there were about 150 relatives and friends attended the marriage. The said marriage was performed at Vekateshwara Temple,
Malakpet. After the marriage the accused and his mother came to their house. The accused demanded the deceased to give ONE Lakh rupees towards dowry on the next day of marriage. Therefore, they promised to pay the same by disposing their land. On 23-03-2011, they arranged first night to the deceased and the accused.
On the next day the accused went away along with his mother by taking gold chain by saying that he will put the gold chain in the locker. They went to Alwal as the mother of the accused was residing at Alwal. On the same day night the accused came back to their house. On 26-03-2011, in order to accommodate the accused and the deceased for their second night P.Ws 1, 2 and LW.5 (Sai Karuna) were adjusted in the neighbour's flat. PW.2 Smt. V. Venkata Kumari locked the main door of their house as there was no locking facility to the bed room of the deceased and the accused. About 05:40 to 05:45 A.M., in the early hours of 27-03-2011, PW.2 gave a phone call to the PW.1 through the cell phone of deceased and informed to
PW.1 that the deceased was in unconscious. Therefore, PW.1 reached the room and found that the face of deceased was changing into black colour and she was unconscious and unable to speak and there was spitting from her mouth.
Therefore, they shifted the deceased immediately to Osmania General Hospital. On enquiry by PW.1, the PW.2 told him that the accused called her through the cell phone of the deceased to open the door lock as he was going to see his mother as she was not feeling well, hence, PW.2 opened the door lock. Hence, by saying that the accused left the house. On arrival of PW.1 to the deceased PW.1 did not see the accused as the accused already left. After the accused went away PW.2 went to the bedroom and found that the deceased was fallen unconscious. In the Osmania
General Hospital the Doctors told that the deceased was already died before 5 to 6 hours. Therefore, the deceased was already died in the bedroom itself. According to PW.1, the accused killed the deceased by putting the pillow on the face of the 9
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deceased by stopping her breathing. There are some nail marks on the face of the deceased. One day before to the marriage, the mother of the accused checked the body of the deceased to find out white scars as PW.1 was having, but the deceased was not having said scars as confirmed by her. The mother of the accused was not satisfied with the marriage and she was harassing the deceased with a demand of
Rs. 1.00 lakh as dowry. Ex.P.1 is the complaint signed by PW.1. The Tahsildar of inquests recorded the statement of PW.1. The police also recorded the statement of
PW.1.
(4)Perusal of cross examination of PW.1, the learned counsel for the accused put several suggestions to the PW.1. According to those suggestions, the
PW.1 does not know the contents of the Ex.P.1 complaint. The bolt of the bedroom door was locked by them from inside and PW.2 and her daughter (LW.5) were sleeping in the hall and they never slept in the neighbour's flat. The accused is not responsible for the death of the deceased. The accused never caused the death of the deceased by using pillow. Even though the death of the deceased was occurred under suspicious circumstances, the accused is falsely implicated by them. The accused never took away the gold chain and gold ring from the deceased. No gold item was presented in the marriage as the family of the deceased is very poor.
Ex.P.1 (complaint) was not lodged at 07:00 AM and it was lodged at 11:00 AM.
Ex.P.1 was lodged after thought and after consultation with the police and others.
Ex.P.1 was drafted by the police and PW.1 simply signed on it without knowing the contents. The police never recorded the statement of PW.1 under Section 161
Cr.P.C. The accused is noway connected to the death of the deceased. A false case is foisted against the accused. All the above said plea by the counsel for accused was taken in the cross-examination by the counsel for the accused by putting several suggestions, but all the suggestions were denied by the PW.1. In the said suggestions, very specifically, the learned counsel for the accused suggested that bolt of the bed room door was locked by them from inside, it means, 10
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the deceased and the accused were inside the bed room and they have locked, as per the cross-examination of the counsel for the accused dated 09-05-2016. The same counsel for the accused on further cross-examination dated 17-01-2017 after recalling the PW.1 vide Crl. M.P No. 55 of 2017, he took plea that the accused never visited the house of the PW.1 for spending second night with the deceased. The said suggestion is denied by the PW.1. There is further plea in the cross- examination dated 17-01-2017 that the deceased died in suspicious circumstances on the second night, the accused falsely implicated. The accused never visited the house of the PW.1 on the second night which is the date of the incident. PW.2 never gave any phone call and PW.2 never visited the place of the incident and never saw the deceased in unconscious condition. It is false to say that the accused killed the deceased by putting pillow on her face. P.Ws 5, 6, LW.11 (M.
Yadagiri) and PW.7 are auto drivers and friends of the Pw.1, hence they are planted witnesses by PW.1. On the day of incident, PW.2 was not present near by the place of incident. P.Ws 2, 3, LW.5 (Sai Karuna), LW.6 (V. Ramesh) are planted witnesses who are relatives of the PW.1. All the said suggestions are also denied by the PW.1 in the cross-examination by the counsel for the accused. On my deep scrutiny of cross-examination of the PW.1, his evidence in the chief-examination is not shaken.
Nothing is elicited in the cross-examination to disbelieve any facts deposed by the
PW.1 in his chief-examination.
(5)The important witness Smt. V. Venkata Kumari (PW.2) deposes that she is resident of Chintal, Hyderabad. The deceased Rama Devi is her elder sister's daughter. PW.1 is her sister's son. PW.3 (Krishna Vara Prasad) is her elder brother. K. Savitha (PW.4) is her neighbour. The deceased Rama Devi and PW.1 were living at Flat No. 207, Hill Top Apartments, Asmanghad, Malakpet, Hyderabad.
For the purpose of pursuing P.G studies of K. Sai Karuna (LW.5) joined in the flat of
PW.1. PW.2 also used to visit frequently. One mediator of marriage alliances approached them to perform the marriage of deceased with the accused. The said 11
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mediator told about the accused that it is a good alliance, accordingly the marriage was settled for deceased and accused. The marriage was performed between the deceased and the accused on 24-03-2011 at Venkateshwara Temple, Asmanghad.
In the marriage, they presented 5 tulas of gold chain to the deceased and ½ tula of gold ring to the accused. On behalf of the accused, his mother and mediator attended the marriage. On behalf of the deceased about 150 persons i.e friends and relatives attended. The mother of the accused came to their hose one day prior to the marriage. The mother of the accused saw the PW.1 and found that his skin was in white colour, hence she enquired with the deceased and also inspected entire body of the deceased. By seeing their house and bath room condition the mother of the accused felt unhappy even though she attended the marriage. After the marriage the accused and the deceased and mother of the accused came to their house. On 25-03-2011 they arranged first night in the same premises Flat No.
207. On the next day the deceased informed them that the accused was demanding dowry of Rs. 1.00 lakh. Hence, they agreed for the same to give Rs.
1.00 lakh after sometime. On the next day, the accused collected gold ornaments from the deceased along with his ring by saying that he will deposit in the bank locker. The accused went to Alwal along with his mother on 26-03-2011 in the morning. On the same day, after 08:00 P.M., the accused came to their house. In the night hours, the accused and deceased went inside the bed room. Since the bolt of door of the bed room was not functioning, PW.2 locked the main door from outside. All they went to Flat No. 205 in the night and slept there which belongs to neighbours. Next day it was Sunday about 05:00 AM the accused gave her a phone call through the cell phone of deceased and asked her to open the door.
Accordingly, she opened the door and the accused was ready to leave and said that his mother was not feeling well and he is going to Alwal to see his mother. Hence, the accused left the house. PW.2 came to the bed room of deceased and she tried to wake up her by touching her. She removed the bed sheet from her face. The 12
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deceased was not having in the habit of closing her face with bed sheet. She found that her face was in black colour and she was unable to speak in spite of touching her and calling her by PW.2. Therefore, PW.2 raised hues and cries and by hearing the same Sai Karuna (LW.5) and inmates of different flats from the apartment reached to the bed room. PW.2 called Kasani Naga Vasu (PW.1), Krishna Vara
Prasad (PW.3) and relatives through her cell phone and informed about condition of the deceased. PW.1 came and they shifted the deceased to the Osmania General
Hospital. The doctors told that the deceased was already died about 5 to 6 hours ago. They sent the inmates of the apartment to search for the accused, but he was not traced. The accused is responsible for the death of the deceased. The deceased as died due to stopping of her breathing. PW.2 was examined by the police.
(6)Perusal of the cross-examination of the PW.2, the plea of the counsel
for accused in the cross-examination by putting several suggestions that the mother
of the accused was staying in Krishna District in the house of the brother of the accused who was an employee in a bank. The accused did not demand any dowry during marriage talks. There is a specific suggestion that for two nights (first night and second night), they slept in the hall of Flat No. 207 and they did not go to any other flat. But the said suggestion is denied by the PW.2. The learned counsel for the accused took further plea in the cross-examination that the death of the deceased was under suspicious circumstances. Hence, a false case is foisted only to extract money from the accused. The accused never took any gold chain and gold ring. There is another plea by the counsel for the accused that PW.2 was not available at the time of incident and she was at Nizamabad. The police never recorded her statement and she is giving false statement at the instance of PW.1.
The accused is noway concerned with the alleged offence. The accused is not responsible and caused the death of the deceased.
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(7)According to the evidence of PW.3 D. Krishna Vara Prasad, he is resident of Bandlaguda, Nagole, Hyderabad. The deceased Rama Devi is his elder sister's daughter. PW.1 is his elder sister's son. Sai Karuna (LW.5) is his sister's daughter. The marriage of the deceased was performed with the accused on 24-03- 2011. on behalf of the accused his mother and one mediator attended the marriage and on behalf of the deceased 150 relatives and friends attended the marriage. In the marriage, they presented 5 tulas of gold chain to the deceased and ½ tulas of gold ring to the accused. Next day to the marriage PW.2 informed the PW.3 that the accused was asking dowry of Rs. 1.00 lakh. They promised the accused that they will pay the said amount after sometime. On 27-03-2011, at about 06:00 AM, PW.2 gave him a phone call and informed that the deceased was in unconscious and shifting to Osmania General Hospital. Hence, PW.3 went to Osmania General
Hospital and found that she was already died. PW.3 observed the face of the deceased that her face was in black colour. P.Ws 1 and 2 informed him that the accused killed the deceased and went away. The accused is responsible for the death of the deceased.
(8)In the cross-examination of PW.3, the learned counsel for the accused took the plea that the PW.3 is giving false evidence at the instance of the P.Ws 1 and 2. The accused is not connected with the death of the deceased. The deceased died under suspicious circumstances. Hence a false case is foisted against the accused only to extract money. The counsel for the accused put further suggestions that the police never recorded his statement and he never went to the police station and he never went to the Osmania General Hospital and also never visited the deceased and he is giving false evidence at the instance of the PW.1. All the said suggestions are denied by the PW.3. On my deep scrutiny of cross- examination of PW.3, I do not find any reasons to disbelieve his evidence.
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(9)It was also held in Yogesh Singh Vs Mahabeer Singh and others (SC) 2017 (1) ALD (Crl.) 57 (SC), that “The evidence of closely related witnesses cannot be discarded merely on the ground that the witnesses are related to each other or to deceased. If the evidence has a ring of truth to it, is cogent, credible and trustworthy it can and certainly should be relied upon. But their evidence should be carefully scrutinized and appreciated.
In the present case, P.Ws 1 to 3 are close relatives of the deceased and also they are relatives to each other. Their evidence is very carefully scrutinized and thoroughly examined. There is nothing elicited that they are speaking false.
(10)Smt. K. Savitha (PW.4) is an independent witness in this case and neighbour of the deceased. According to the evidence of PW.4, she is resident of
Flat No. 20, Hill Top Apartments. PW.1 and deceased were staying in the Flat No.
207. The flat of the deceased is a small flat with single bed room. PW.4 is residing in the double bed room flat with kitchen and hall. The marriage of the deceased was performed with the accused in the year 2011. PW.4 further clearly deposes that she cannot say the exact date but on the first night of the deceased as the flat of the deceased was small PW.2, LW.5 (Sai Karuna) and mother of the accused and
LW.6 (V. Ramesh Babu) came to her flat to sleep. On the second night also PW.2 and LW.5 came to her flat to sleep. On that day, PW.2 locked the door of their flat from outside and they came to her flat to sleep. In the early hours about 05:00 AM,
PW.2 received a phone call from the cell phone of the deceased on which they woke up. PW.2 informed the PW.4 that the accused talked to her and PW.2 opened the lock and went into the house. After 5 or 10 minutes, PW.2 raised hues and cries and on that PW.2 came to PW.4 and informed her that the deceased was unconscious. Therefore, PW.4 and other flat members also went to the house of
PW.1. By that time the deceased was found in her bed room and she became black and also there was saliva coming from her mouth. On that, PW.2 called the PW.1 15
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through cell phone and PW.1 came along with his friends to his house and then
P.Ws 1 and 2 shifted the deceased to the Osmania General Hospital. After that they got information that the deceased Rama Devi was died in the hospital.
(11)PW.4 is cross-examined by the counsel for the accused and put several suggestions in her cross-examination. The plea of the counsel for the accused in the cross-examination of PW.4 is that the mother of the accused never slept in her flat on the first night of the deceased. PW.2 never received phone call and PW.4 never visited the deceased at Flat No. 207 on the day of incident and she never found Saliva coming from the mouth of the deceased and she never observed that the face of the deceased was black in colour. She is giving false evidence at the request of the P.Ws. 1 and 2 who are her neighbours. She never visited the mortuary of Osmania General Hospital and also she does not know anything about the death of the deceased. But all the said suggestions were denied by PW.4.
(12)It was held in 2009 (7) SCJ 398, in between Javed Alam Vs. State of
Chattisgarh as follows:
“Doctrine of res gestae:- Section 6 – Doctrine of res gestae –
Section of Evidence Act is an exception to the rule of evidence that hearsay evidence is not admissible. The test for applying rule of res gestae is that the statement should be spontaneous and should form part of the same transaction ruling out any possibility of concoction.”
In the present case, when PW.2 found the deceased in the bedroom informed about the condition of the deceased to P.Ws 1, 3 and 4. Hence, the principles of res gestae is applicable to the case on hand to the evidence of said witnesses.
(13)The evidence of P.Ws 1 to 4 is clearly disclosing the circumstances that on the first night on 25-03-2011 the accused and deceased slept in the bedroom of Flat No. 207, Hill Top Apartments, and on the next day morning the 16
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accused went to Alwal along with his mother by taking gold chain of the deceased and also ring presented in the marriage and again the accused came back for second night on 26-03-2011. In order to accommodate the accused and deceased, the inmates of the Flat No. 207 i.e P.Ws 1, 2 and LW.5 (Sai Karuna) adjusted in the flat of PW.4 i.e Flat No. 205 of same apartments by locking their flat from outside. In the early hours, at about 05:00 AM, on 27-03-2011, the accused gave a phone call to the PW.2 from the cell phone of the deceased by asking the PW.2 to open the door, accordingly PW.2 opened the door, the accused was ready to leave, the accused said that his mother was not feeling well and he is going to Alwal to see his mother. PW.2 gave phone call to the PW.1 after observing the condition of the deceased she felt in unconscious. Again PW.2 informed to her neighbour PW.4 also and they shifted the deceased to the hospital but the doctors told that the deceased already died about 5 to 6 hours ago. All the circumstantial evidenced deposed by
P.Ws 1 to 4 clearly shows that the accused was present in the bedroom of second day night and the deceased was died under suspicious circumstance and she was brought dead to the hospital and she was already died 5 to 6 hours earlier to shifting to the hospital. When the accused left the bedroom by asking the PW.2 and by getting opening of the door, an adverse inference can be drawn against the accused that the accused is responsible for the death of the deceased as the accused alone was present in the bedroom along with the deceased.
(14)It was held in Sujit Biswas Vs State of Assam, 2013 (2) ALD (Crl.)
618 (SC) = (2013) 12 SCC 406 = AIR 2013 SC 3817 and Raja @ Rajendra Vs
State of Haryana, (2015) 11 SCC 43 = 2015 AIR SCW 2485, that “It has been propounded that in scrutinizing the circumstantial evidence, a Court is required to evaluate it to ensure that the chain of events is established clearly and completely to rule out any reasonable likelihood of innocence of the accused. It was underlined that whether the chain is complete or not would depend on the facts of each case emanating from the evidence and no universal yardstick 17
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should ever be attempted. That in judging the culpability of the accused, the circumstances adduced when collectively considered, must lead only to the irresistible conclusion that the accused alone is the perpetrator of the crime alleged. That the circumstances established must be of a conclusive nature consistent only with the hypothesis of the guilt of the accused, was emphatically propounded”.
In view of parameters of said judgment, I evaluated the entire evidence of the prosecution witnesses including circumstantial evidence, essential to bring home the guilt of the accused for the alleged charges, I am of the opinion that the chain of events established clearly that the accused is involved in the commission of alleged offence.
(15)Since the accused already took away the gold ornaments ie chain and ring by saying that he will keep them in the Bank locker and came back second night and he is only the person available along with the deceased in the night in the bedroom. Except his mother and one mediator there were no others present on behalf of the accused in the marriage whereas 150 friends and relatives were attended on behalf of the deceased in the marriage. Therefore, the intention of the accused was to kill the deceased after swallowing the said gold ornaments. It was held in (2008) 16 SCC 73 between State of U.P Vs Kishanpal & Others, while dealing with the presence of motive the Apex Court held that the motive may be considered as a circumstance which is relevant for assessing the evidence. Hence, in view of said circumstances motive of accused to kill the deceased is established.
(16)Perusal of the cross-examination of the above said witnesses P.Ws 1 to 4, the plea of the accused is alibi, that the accused was never present at the scene of offence as on the date of the incident of the night. It was held in Narendra
Vs State, in between (2004) 10 SCC 699, that “Where the accused takes a plea of alibi, the burden of proof is on him”. It was held inDudh Nath Vs State in between (1981) 2 SCC 166, that “Unless, the accused discharges his burden by 18
Fair Judgment in SC No. 5 of 2012
establishing that he was not present at the scene of offence as on the date of the incident and the accused was far away to the scene of offence as on the date of incident at the relevant time and also it is not possible for him to be present at the place of offence”.In the present case, the accused did not adduce any evidence on his behalf and also he did not place any record or document or any material to prove the plea of alibi, that the accused was at the some other place as on the date of incident of night and he was not present there along with the deceased.
(17)It was held in (2009) 6 SCC 308 in between State of Himachal
Pradesh Vs Rakeshf Kumar,Section 11 of Indian Evidence Act for the offence under Section 302 of IPC, it was held that:
“For the plea of alibi the trial court disbelieved the plea of alibi taken by the accused for the reasons given by the accused. The plea of alibi without merit, as presence of accused on the date of incident at the place of occurrence conclusively proved by the P.Ws 1 to 3. the plea of alibi have no basis at all.” (18)Therefore, in the present case also, the evidence of P.Ws 1 to 4 very clearly established that as on the date of incident, at the place of occurrence, the presence of the accused in the bedroom along with the deceased is conclusively proved, hence the plea of alibi by the accused had no basis at all. In view of the facts and circumstances stated by P.Ws 1 to 4, absolutely there is no scope to others to enter the bedroom of the deceased and to cause death of the deceased by smothering. Since the accused was in the bedroom of the deceased which was second night after their marriage and all the witnesses P.Ws 1 to 4 categorically stated that the accused was inside the bedroom along with the deceased for the entire night and next day morning the accused left the place of offence by disclosing the PW.2 that he is going to his house to see his mother. Therefore, the plea of alibi taken by the accused has no basis at all and it is a false plea.
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Fair Judgment in SC No. 5 of 2012
(19)PW.5 (P. Bhakthavatsal) the panch witness for the scene of offence.
According to his evidence, on 27-03-2011, at 12:00 noon, the police Malakpet called the PW.5 to Flat No. 207, Hill Top Apartments, Asmanghad to act as panch witness for the scene of observation panchanama along with another panch witness LW.8 (Santosh). On that they acted as panch witnesses for the scene of offence panchanama in Flat No. 207 which is single bed flat consisting one bedroom, one hall and one kitchen, and in the bedroom there is one Deewan Cot on which a bed sheet was there which was of light bluish yellow coloured. MO.1 is light bluish yellow colour bed sheet. MO.2 is pillow. PW.5 also found on the southern side of the room, there was a wooden box, one almirah, one sewing machine and there was one tray in which some fruits and sweets were there and it is further observed by PW.5 that there was a bolt to the main door of the flat that was not working properly. After drafting panchanama, the contents were readover to them and they both panchas signed on it. Ex.P.2 is scene of observation panchanama. Ex.P.3 is rough sketch. The learned counsel for the accused put several suggestions in the cross examination of PW.5. The plea of the counsel for the accused is that the police never called PW.5 to act as panch witness and no such panchanama was conducted and no material objects were seized and Pw.5 simply signed on the panchanama at the instance of police by not knowing the contents. M.Os 1 and 2 never recovered from the scene of offence. He signed on blank papers. Ex.P.2 (scene of offence panchanama) and Ex.P.3 (rough sketch) are fabricated and falsely signed on the slips also and pasted on M.Os 1 and 2. Exs.P.2 and P.3 were never executed on the date mentioned therein. The panch witness signed at the instance of the police. The deceased's family never occupied the Flat No. 207 and he is deposing false to help the family of the deceased. But the said all suggestions are denied by the PW.5. On my careful scrutiny of evidence of PW.5, I do not find any reason to disbelieve him. There is nothing elicited in the cross-examination of PW.5 that the panchanama and rough sketch and also seizure of M.Os 1 and 2 are false.
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Fair Judgment in SC No. 5 of 2012
(20)PW.6 (C. Raju) is the panch witness for inquest panchanama.
According to his evidence, in the month of March 2011, the police Malakpet called him to the Osmania General Hospital to act as panch witness for inquest along with
LW.9 (Raja Gayatri). On that they acted as panch witnesses for inquest panchanama. The police shown him dead body of a female, and he observed the dead body and found that her face turned to black and saliva was coming from her mouth. After that the panchanama was drafted and he signed on the panchanama along with another panch witness after the contents were read over to them. Ex.P.4 is the inquest panchanama. On the same day, at 04:30 P.M., at Osmania General
Hospital police seized green colour sari, bluse and petty coat. MO.3 is the sari.
MO.4 is the blouse. MO.5 is the petty coat. The police also drafted seizure panchanama and its contents were read over to them and signed on them. Ex.P.5 is the seizure panchanama which was conducted by the police Malakpet. While
PW.6 was observing the dead body, he found some nail marks on the neck of the dead body. In the cross examination of PW.6, the counsel for the accused took the plea that the police prepared the papers and he put his signatures without knowing the contents he signed on it. He never visited the Osmania General Hospital for inquest panchanama. P.Ws 1 and 7 are his friends being auto drivers and he is a stock witness to the police and also he is deposing false at the instance of the police. All the said suggestions are denied by PW.6. On my deep scrutiny of the cross-examination of the PW.6, I do not find any reasons to disbelieve his evidence.
(21)PW.8 (Smt. Waheed Khatoon), Tahsildar deposes that on 27-03-2011, she received a requisition from P.S Malakpet for conducting inquest over the dead body of the deceased. Accordingly, she proceeded to Osmania General Hospital
Mortuary on 27-03-2011, at 02:30 P.M., and conducted inquest before two panch witnesses and blood relatives of the deceased and other witnesses. Smt. Raja
Gayatri (LW.9) and C. Raju (PW.6) are the inquest panchas. The panch witnesses opined that the cause of death of deceased was due to smothering with a pillow.
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Fair Judgment in SC No. 5 of 2012
Pw.8 examined PW.1 and PW.4 who also gave their opinion that the deceased died due to smothering with a pillow. They further stated that the husband of the deceased was suspected that he might have killed the deceased as she resisted for sexual intercourse. There is a scratch injury on the dead body between right upper arm and right elbow. PW.8 conducted inquest panchanama of the dead body of the deceased in the presence of the above said panch witnesses. PW.8 commenced inquest proceedings at 02:30 PM and concluded at 04:30 P.M. Ex.P.4 is the same inquest panchanama conducted by PW.8. Perusal of the cross-examination of
PW.8, the learned counsel for the accused took the plea by putting several suggestions that the entire inquest panchanama (Ex.P.4) was drafted in the police station and the said panchanama is fabricated and at request of the police she prepared a false panchanama and she is giving false evidence. All the said suggestions are denied by the witness. On my deep scrutiny of the cross examination, I do not find any reasons to disbelieve the evidence of PW.8.
(22)The proceedings under Section 174 Cr.P.C have a very limited scope, the object of the inquest proceedings is merely to ascertain whether a person has died under suspicious circumstances or unnatural death. It was held din 2016 (2)
ALD (Crl) 668 (SC) between Manoj Kumar Sharma and others Vs State of
Chhattisgarh and another, that, “Scope of 'Injury' under Section 174 of the Code:
The proceedings under Section 174 have a very limited scope. The object of the proceedings is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of the death. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of the proceedings under Section 174 of the Code. Neither in practice nor in law was it necessary for the police to mention those details in the inquest report”.
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Fair Judgment in SC No. 5 of 2012
(23)In the present case, the inquest report (Ex.P.4) shows the Para No.15 as follows:
“The panchayathdars opined that the cause of death might be due to smothering with the pillow by the deceased husband or due to strangulation as the deceased resisted to intercourse with her husband who he was behaving violently and roughly which was not accustomed by the deceased as she is newly married ie on 24-03- 2011. the exact cause of death is not known and the same will be established after PME ”.
(24)PW.9 Dr. M. Sugatha who conducted autopsy over the dead body of the deceased deposes that she received a requisition on 23-11-2006 from R.D.O,
Hyderabad to conduct autopsy on the dead body of Smt. K. Rama Devi . PW.9 commenced autopsy at 04:30 P.M., and concluded at 05:30 P.M., PW.9 found the following antimortem injuries on the dead body:
(1) A contusion of 1 x 0.5 cms on the gum on the right side of lower jaw on the outer as pet between right central and lateral incisors; (2) A contusion of 0.5 x 0.5 cms on the upper margin of gum above the right central incisor of upper jaw; (3) An abrasion of 05. x 0.5 cms over the right upper lip in the midline; (4) Imprint abrasion of the teeth of 4 x 0.5 cms placed transvorsoly along the mucosal ie inner surface of the lower lip from left angle to right angle of the mouth; (5) A contused abrasion of 0.2 parallet lines each of 3 x 0.25 cms with a gap of 0.5 cms on the lower 1/3rd of right arm on the lateral aspect; (6) A contusion of 4 x 3 cms on the middle 1/3rd of the left arms medially.
All the visiral organs are congested. Stomach and its contents, half of each kidney, liver and blood were preserved and sent to FSL for toxicological analysis. Hymen old tear at 12'O clock position and permitting two fingers easily eczema present around the hymeaat orifice. On receipt of the FSL report she gave her opinion 23
Fair Judgment in SC No. 5 of 2012
regarding cause of death is “smothering – An Asphyxial Death”. Ex.P.8 is the requisition from R.D.O Office. Ex.P.9 is the P.M.E report issued by her. Ex.P.10 is the final opinion on the cause of death issued by her based on FSL report. Perusal of the cross-examination of PW.9, there is a suggestion by the counsel of accused that FSL report should be enclosed to the Ex.P.10 as per the procedure and she did not conduct PME as per the procedure. On perusal of entire evidence of PW.9, I do not find any reasons that PW.9 did not follow the procedure while conducting PME on the deceased.
(25)PW.10 (N.S Ashok Kumar), who issued F.I.R and examined PW.1 deposes that on 27-03-2011, at about 11:00 hours, he received a complaint from
PW.1. Basing on that complaint he registered a case in Crime No. 111 of 2011 for the offence under Section 302 of IPC and issued Ex.P.11 FIR. Further he examined the PW.1 and recorded his statement and handed over the case file to LW.16 (V.
Ravi Kumar, Inspector of Police).
(26)PW.11 (V. Ravi Kumar) the Investigating Officer in this case deposed that on 27-03-2011, he took up the investigation from PW.10. During the course of investigation he visited the scene of offence and secured two mediators PW.5 and
LW.8 (D. Santosh) and conducted scene of offence panchanama and also drawn rough sketch. He seized one bed sheet and one pillow from the scene of offence.
Mo.1 is the bed sheet and MO.2 is pillow. He visited the mortuary of Osmania
General Hospital where he recorded the statements of P.Ws 2, to 4, LW.5 (V. Sai
Karuna) and LW.6 (Veeranti Ramesh Babu). He got the photographs of dead body of the deceased which is Ex.P.12 (seven photographs). He gave requisition for inquest of dead body of the deceased through Tahsildar. PW.8 conducted inquest over the dead body of the deceased. After that he gave requisition to the Osmania
General Hospital for PME of the dead body of the deceased. The medical officer (PW.9) conducted PME over the dead body of the deceased and issued PME report 24
Fair Judgment in SC No. 5 of 2012
by stating that cause of death of deceased is due to smothering. After that he handed over the dead body to the PW.1. On 29-03-2011 he apprehended the accused at Samatha Degree College, Asmanghad, Malakpet and recorded the confession cum seizure panchanama of accused in the presence of PW.7 and
LW.11 (M.Yadagiri) and seized another pillow which is MO.6. He brought the accused to the police station and produced him before the court for judicial remand.
He collected PME report from the hospital. After completion of investigation he filed the charge sheet against the accused for the offence under Section 302 of IPC.
(27)Even though there is a lengthy cross-examination to PW.11, nothing is elicited that the investigation of the PW.11 is false and it is not proper. The learned counsel for the accused put several suggestions by taking plea that PW.1 being auto driver arranged the panch witnesses who are his friends. PW.5 was not present at the time of offence in Hill Top Apartment as it was Sunday and he was attending at his office as Advocate at Jamuna Towers. The accused never visited the deceased in the second night and the Investigating officer created a false statement that the accused visited the deceased in the second night. On two days
PW.1 and his family members slept in the neighbours house. The Investigating
Officer falsely implicated the accused and fabricated the entire material and foisted false charge sheet. Even though the deceased was died in suspicious circumstances she was not died due to smothering. P.Ws 1, 2 and deceased were never in occupation of Flat No. 207, Hill Top Apartments. The accused never confessed any offence and no material objects were seized and that they are planted for the purpose of the case. All the said suggestions are denied by the
Investigating Officer (PW.11). On my careful and deep scrutiny of evidence of
PW.11, I do not find any reasons to find fault with the investigation and also charge sheet and nothing is elicited that PW.11 is giving false evidence.
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(28)It was held in AIR 1978 SC 1571, in between State of Kerala Vs M.M.
Mathew, that “The courts of law have to judge the evidence before them by applying the well recognized test of basic human probabilities. The evidence of the investigating officers cannot be branded as highly interested on ground that they want that the accused be convicted.
Such a presumption runs counter to the well recognized principle that prima facie public servants must be presumed to act honestly and conscientiously and their evidence has to be assessed on its intrinsic worth and cannot be discarded merely on the ground that being public servants, they are interest in the success of their case.”
Perusal of the cross examination of P.Ws 10 and 11, I find no material facts to believe them. Therefore, I believe the evidence of P.Ws 10 and 11, the Investigating
Officers in this case.
(29)The learned counsel for the accused relied upon the Judgments reported in (1) 2015 (1) ALD (Crl.) 663 (SC) in between Tomaso Bruno and another
Vs State of UP, (2) 2005 LawSuit(SC) 617 in between Jaswant Gir Vs State of
Punjab and Haryana, (3) 1973 LawSuit(SC) 290 between Kali Ram Vs State of
Himachal Pradesh, (4) 2015 CRI. L. J. 1183 between Nandalal Das @ Nandu Vs
State of West Bengal.
(30)I deeply perused all the above said Judgments and also deeply scrutinized them with great respect to those Judgments, I am of the considered opinion that those Judgments are not applicable to the present facts and circumstances of this case.
(31)It was held in (1) 2007 LawSuit(AP) 943 between Vippala Srinivasa
Reddy S/o Lakshma Reddy Vs State of Andhra Pradesh by the Hon'ble High
Court of Andhra Pradesh, that 26
Fair Judgment in SC No. 5 of 2012
“The word 'smothering', as explained by Dr. K.S Narayan Reddy, a famous author of the Essentials of Forensic Medicine and Toxicology, is a form of asphyxia caused by closing the external respiratory orifices either by the hand or by other means, or blocking up the cavities of the nose and mouth by the introduction of a foreign substance, such as mud, paper, cloth etc. smothering has been used synonymously with suffocation by some authors. Further, 'suicidal smothering' by the hand is impossible and suicide is possible by burying the face in a mattress or lying against the bed clothing to obstruct the nose and the mouth. He also explained as to what is 'accidental smothering'. According to him 'homicidal smothering' is possible where the victim is incapacitated from drink or drugs, very weak, child or old person, in ill-health and when the victim is stunned by a blow. Usually, the mouth and nose are closed by hand or cloth, or the face may be pressed into a pillow. Further 'smothering' can be caused by pinching the nose, with child in one hand, while the other hand is used to push the jaw to close the mouth.” “From the above it is clear that no individual can cause his own death by 'smothering' or 'accidental smothering'. When once the expert opined that the death was due to 'smothering', it shall automatically be presumed that there was the hand of some other individual or individuals.” (32)In the case on my hand, the Doctor gave his opinion that the death of the deceased was due to smothering and there are several anti mortem injuries on the dead body of the deceased, as per the evidence of the Doctor who conducted
Postmortem Examination over the dead body of the deceased.
(33)It was held in the above said Judgments by the Hon'ble High Court that:
“At the end of his report, he gave his final opinion stating that the deceased would appear to have died of “Asphyxia due to smothering”. The very purpose of examining the doctor, who conducted autopsy over the dead body of the deceased and marking the postmortem report as an exhibit is only to know the reasons for 27
Fair Judgment in SC No. 5 of 2012
the death. When once PW.10 opined that the death of the deceased was on account of 'asphyxia due to smothering'; in the light of the observation made by this Court that an individual cannot cause his own death by reason of 'smothering' without there being an involvement of other individuals to block the nose or mouth of the deceased in order to cause death, it shall be held that other individuals are responsible for the death of the deceased. From the evidence it is clear that the deceased was residing in the house of the first appellant at the relevant point of time and the said other individual can be only the husband of the deceased i.e., the first appellant.” (34)In the case in my hand also the deceased was died on account of asphyxia due to smothering. The accused is only the person who was available along with the deceased in the bedroom and the other inmates were sleeping in different flat. Therefore, from the evidence of P.Ws 1 to 4, it is clear that, the deceased was along with the accused in the bedroom of the flat and the accused is husband of the deceased slept with the deceased for second night after the marriage. In the early hours, the accused left the place and the deceased was found dead. The doctor who conducted postmortem examination clearly gave his opinion that the deceased died asphyxia due to smothering. Therefore, an inference can be drawn that the accused murdered the deceased by smothering.
(35)It was also held in 2017 (3) ALT (Crl.) 135 (SC) between State of
Maharashtra Vs Nisar Ramzan Sayyed, it was held by the Hon'ble Supreme
Court that:
“If death of wife is occurred in unnatural circumstances in her bedroom it was occupied only by her husband, the law requires that the husband has to offer an explanation in this behalf.”
In the absence of any explanation, an adverse inference can be drawn that the accused is responsible for the death of the deceased.
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(36)The accused in the course of examination under Section 313 of
Cr.P.C., he gave his answers that he was not present along with the deceased on the day of incident at the place of offence and there was no second night performed
for the accused and the deceased. The accused did not go to the house of the
deceased to attend the second night. The accused denied entire facts deposed by all the prosecution witnesses. But the plea of the accused “alibi” cannot be accepted in view of the strong evidence of P.Ws 1 to 4.
(37)PW.7 (C. Parmesh) panch witness for the confession cum seizure panchanama of the accused deposes that on 29-03-2011, at about 04:00 P.M., when himself and Lw.11 (Yadagiri) were waiting at Samhitha College, Asmanghad,
Hyderabad, the police Malakpet came there and shown the accused and asked them to enquire with the accused. On their enquiry, the accused confessed that he murdered his wife by using pillow (MO.2). The accused brought them to Hill Top
Apartments and produced MO.2 (pillow) beneath from the cot in the flat. The police drafted the panchanama of confession and seizure and seized the said pillow (MO.2). Pw.7 and LW.11 (Yadagiri) put their signatures on the panchanama. Ex.P.7 is the confession cum seizure panchanama of the accused which was conducted in their presence by the police. (MO.2 is identified by the witness. Accused also identified by the witness in the court hall). In further chief-examination by the learned Addl., Public Prosecutor by recalling the PW.7, it is deposed by PW.7 that
MO.6 is the pillow seized at the instance of the accused from the scene of offence containing his signature on panch chit affixed to it. In the cross-examination, the learned counsel for the accused took the plea by putting several suggestions that
PW.7 did not visit the scene of offence and MO.6 was not seized in his presence and put his signature as asked by the police in the police station and he is deposing false at the instance of the PW.1 and the police. Perusal of the entire cross- examination of PW.7, nothing is elicited to disbelieve him.
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(38)Section 27 of Indian Evidence Act speaks as follows:-
“27. How much of information received from accused may be
proved: Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved”.
(39)It was held in Earabhadrappa Vs State of Karnataka AIR 1983 SC 446, that, “For the applicability of Section 27 two conditions are prerequisite, namely (i) the information must be such as has caused discovery of the fact; and (ii) the information must “relate distinctly” to the fact discovered. Under Section 27 only so much of the information as distinctly relates to the facts really thereby discovered is admissible.
The word “fact” means some concrete or material fact to which the information directly relates”.
(40)It was also held in Mohammed Inayatullah Vs State of Maharashtra AIR 1976 SC 483, that, “Fact discovered – Includes place from which recovery is made –
The expression “fact discovered” includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this”.
(41)It was also held in Pohalya Motya Valvi Vs State of Maharashtra AIR 1979
SC 1949, that,
“The recovery of a blood-stained spear would become incriminating not because of its recovery at the instance of the accused, but the element of criminality tending to connect the accused with the crime lies in the authorship of concealment, namely, that the accused who gave information leading to its discovery was the person who concealed it. To make such a circumstance incriminating it must be shown that the accused himself had concealed the blood-stained spear which was the 30
Fair Judgment in SC No. 5 of 2012
weapon of offence”.
All the above judgments are very relevant to the present case with regard to the confession and seizure as discussed above.
(42)In this case, the above said confessional panchanama (Ex.P.7) discloses that the accused murdered his wife by using a pillow as she resisted for sexual intercourse. On that process, there are scratch injuries on the dead body between right upper arm and right elbow. The same is strongly corroborated by the medical evidence by PW.9 who conducted autopsy on the dead body of the deceased and found antimortem injuries.
(43)The injuries caused to the deceased will corroborate the commission of the said offence by the accused in murdering the deceased. The learned counsel
for the accused took the plea of alibi by saying that the accused was not at all
available at the scene of offence and he never visited the house of the deceased for second night and he is not responsible for the death of the deceased. There is burden on accused also to give cogent explanation that he was not available at the scene of offence on that particular day of incident. Section 106 of Indian Evidence
Act speaks as follows:
106. Burden of proving fact especially within knowledge:
“When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him”.
(44)In the present case, the deceased is the wife of the accused. The deceased and accused were slept in the bedroom of the scene of offence. The deceased died due to smothering. When there is strong evidence against the accused that deceased died due to smothering and she was murdered in the bedroom, the Onus lies on the accused under Section 106 of the Indian Evidence 31
Fair Judgment in SC No. 5 of 2012
Act to give satisfactory explanation to the incriminating circumstances specially within his knowledge.
(45)It was held in Trimukh Maroti Kirkan Vs State of Maharashtra (2006) 10
SCC 681, that, “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 evidlence. 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”.
In the present case, the accused being the husband of the deceased simply kept quiet by offering no explanation about all the aspects discussed above. When the prosecution proved its case against the accused by connecting the the accused for the alleged murder of his wife, the story of the prosecution can be believed safely unless the accused is by virtue of his special knowledge regarding such fact offerred any explanation which might drive the court to draw a different inference.
(46)It was also held in Sahadevan Vs State, 2002 (2) ALD (CrlZ) 908 (SC), that, “The Onus lies on the accused under Section 106 of Indian Evidence
Act to give satisfactory explanation to the incriminating circumstances specifically within the knowledge”.
In the present case, the accused failed to discharge the onus lying on him to satisfactorily explain as to the incriminating circumstances under which the 32
Fair Judgment in SC No. 5 of 2012
deceased was died. Failure on the part of the accused to explain those circumstances an adverse inference can be drawn against the accused as the prosecution proved its case beyond reasonable doubt.
(47)It was held in Yogesh Singh Vs Mahabeer Singh and others (SC) 2017 (1) ALD (Crl.) 57 (SC), that “The minor contradictions and inconsistencies do not affect the core of the prosecution. The serious contradictions and omissions only which are materially affect the case of the prosecution only can be taken into consideration but not every contradiction or omission. Therefore, the contradictions and omissions which are do not affect the core of the prosecution cannot be taken as ground to reject the prosecution evidence.”
Therefore, if at all minor contradictions and inconsistencies in the evidence of said witnesses cannot be taken in to consideration as they do not affect the core of the prosecution”.
(48)Therefore, in view of the facts and circumstances discussed above, I hold that the prosecution proved its case against the accused for the charge under
Section 302 of IPC beyond reasonable doubt.
IXIn the result I find that the accused is guilty for the charge under
Section 302 of IPC. Therefore, I convict the accused for the said charge under
Section 235 (2) Cr.P.C. The MOs.1 to 6 shall be destroyed after expiry of appeal time. The M.Os 1 to 6 shall be destroyed after expiry of appeal time.
Dictated to the stenographer, transcribed and typed by her, corrected and
pronounced by me in the open court on this the 16th day of March, 2018.
II ADDL.METROPOLITAN SESSIONS JUDGE,
HYDERABAD.
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Fair Judgment in SC No. 5 of 2012
(1)The accused is heard with regard to quantum of sentence. He submitted that he is having old aged mother, he is working as a Teacher in a private school at Gudiwada and he is earning only Rs. 10,000/- per month and his old aged mother is dependent on him and he is maintaining his mother. Therefore, he prayed this court to take a lenient view while imposing the sentence.
(2)After hearing the submissions made by the accused and in view of the facts and circumstances of the case and also based on the settled principles of law imposing sentence of rigorous LIFE imprisonment will meet the ends of justice for the offence under Section 302 of IPC.
(3)Therefore, the accused is sentenced to undergo Rigorous LIFE
Imprisonment and also to pay a fine of Rs. 1,000/- (Rupees ONE THOUSAND only) for the charge under Section 302 IPC, in default of payment of fine, he has to further undergo Simple Imprisonment for a period of three (3) months.
Dictated to the stenographer, transcribed and typed by her, corrected and
pronounced by me in the open court on this the 16th day of March, 2018.
II ADDL.METROPOLITAN SESSIONS JUDGE,
HYDERABAD.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PROSECUTION :
PW1 - K. Naga Vasu, the defacto complainant and brother of the deceased. PW2 - Smt. V. Venkata Kumari, maternal aunt of the deceased. PW3 - D. Krishna Varaprasad, maternal uncle of the deceased. PW4 - Smt. K. Savitha, circumstantial witness. PW5 - P. Bakthavastal, panch for scene of offence panchanama. PW6 - C. Raju, panch for inquest. PW7 - C. Parmesh, panch for confessional-cum-seizure panchanama. PW8 - Smt. Waheeda Khatoon, who conducted inquest over the dead body of the deceased. PW9 - Dr. M. Sugatha, who conducted autopsy over the dead body of the deceased. PW10 - N.S. Ashok Kumar, S.I of Police, who registered the case and issued FIR. PW11 - V. Ravi Kumar, Inspector of Police, the Investigating Officer.
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Fair Judgment in SC No. 5 of 2012
FOR DEFENCE: Nil
EXHIBITS MARKED
FOR PROSECUTION :
Ex.P1 - Complaint given by PW1. Ex.P2 - Scene of offence observation panchanama. Ex.P3 - Rough sketch of the scene. Ex.P4 - Inquest Report. Ex.P5 - Seizure Panchanama. Ex.P7 - Confession cum seizure panchanama of the accused. Ex.P8 - Requisition from RDO office to PW9 to conduct autopsy. Ex.P9 - PME Report. Ex.P10-Final Opinion issued by PW9. Ex.P11-F.I.R. Ex.P12-Photographs (7 Nos.)
FOR DEFENCE :
Ex.D1 – Relevant portion in the 161 Cr.P.C statement of PW2.
MATERIAL OBJECTS MARKED
MO.1 - Light Yellow colour bed sheet. MO.2 - Pillow MO.3 - Green colour saree. MO.4 - Blouse. MO.5 - Petty coat. MO.6 - Pillow.
II ADDL.METROPOLITAN SESSIONS JUDGE,
HYDERABAD