HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.211 of 2008 JUDGMENET: (Per Hon’ble Sri Justice Samudrala Govindarajulu) The appellant/accused was convicted by the lower Court under Section 302 IPC and was sentenced to imprisonment for life. Questioning the same, the accused filed this appeal. 2. The accused is no other than husband of the deceased Sunitha. They have three children. P.Ws.2 and 3 are children of the deceased and the accused. P.W.1 is younger brother of the deceased. It is alleged that on 30-11-2006 at about 11 p.m. the accused came to house in drunken state and committed murder of the deceased by throttling her neck. It is alleged that the accused committed the offence suspecting fidelity of his wife. Plea of the accused is one of total denial and not guilty. No other specific plea of defence was taken by the accused in the trial Court. After trial, in which the prosecution examined P.Ws.1 to 10 and marked Exs.P-1 to P-9, the lower Court found the accused guilty of the charge. 3. It is contended by the appellant’s counsel that P.Ws.2 to 4 who were examined as eyewitnesses to the occurrence are planted witnesses and that their presence at the time of offence is doubtful. It is further contended that there is delay of nearly thirteen hours in lodging Ex.P-1, report to the police and that the deceased was killed during night and that after coming to know about death of the deceased in the morning of 01-12-2006, P.W.1 and others confabulated and got Ex.P-1, false report, prepared against the accused. 4. P.Ws.2 and 3, who are children of the accused and the deceased, were examined by the prosecution as eyewitnesses. The lower Court before proceeding to record their examination in Court, put some preliminary questions about their details and their family details and after eliciting their answers, the lower Court recorded finding that the Court was satisfied that the child witnesses P.Ws.2 and 3 were capable of giving evidence and that they were physically and mentally fit to make statement before the Court. It is evidence of P.W.2 that on the date of the incident while they were all sleeping on ground, her father/accused came home in drunken condition, beat her mother and sat on her chest and throttled her neck and that her mother raised hue an cry and that on hearing the same, P.W.4 came to their house and pushed off the accused and that the accused fled away from that place and that her mother who is the deceased died. P.W.3 deposed that on the date of the incident, while she was at home along with P.W.2, her father/accused tried to kill her mother by sitting on her chest and throttling her neck and that they raised hue and cry, and that as a result of the acts of the accused, her mother died and that in the meantime, P.W.4 came to their house and the accused fled away from the scene. 5. It is contended by the appellant’s counsel that P.Ws.2 and 3 were not in the house on the date of offence and that they were studying while staying in a hostel. It was P.W.3 only who was studying while staying in hostel and not P.W.2. P.W.2 in cross-examination, deposed that at that time, she was studying in Telugu medium school in their village. P.W.3 deposed that on the next date of offence, her paternal uncle joined them in a hostel. Even though P.W.3 was generally staying in hostel, on the date of offence, she was in the house and on the next date of the offence, she was sent to hostel. 6. P.W.4 is neighbour of the scene of offence i.e. house of the accused and the deceased. In cross-examination also he reiterated that his house is next to the house of the accused. It is contended by the appellant’s counsel that the prosecution did not file rough sketch of the scene to show that P.W.4’s house is by the side of house of the accused. No doubt, Ex.P-6, Crime Details Form, prepared by P.W.8, Assistant Sub Inspector of Police, reads that rough sketch of the scene of offence is enclosed to it. But, no steps were taken by the Additional Public Prosecutor in the lower Court to mark the said rough sketch of the scene during trial in the lower Court. It is nobody’s case that rough sketch of the scene also contained details of neighbouring houses. The rough sketch attached to Ex.P-6, naturally contains only those details which are mentioned in Ex.P-6, Crime Details Form. P.W.4’s evidence that he is the immediate neighbour of the scene was not challenged in his cross-examination. It is evidence of P.W.4 that at about 9 p.m. or 9.30 p.m., he was coming out of his house to attend calls of nature and at that time, he heard some hue and cry from children of the accused from their house which is besides his house and that he went to house of the accused and found the accused sitting on chest of his wife Sunitha and throttling her neck and that he intervened and pushed away the accused and that the accused fled away from the place of offence and that wife of the accused died. 7. There is also previous incident between the accused and the deceased. It is evidence of the neighbours P.Ws.4 and 5 that the accused and the deceased were quarrelling with each other. P.W.5 came to the scene of offence after the accused ran away from there. She came to know about the occurrence when P.W.4 is stated to have narrated the same to her. P.W.4 gives details of the previous incident between the accused and the deceased. It is his evidence that even prior to the offence, the accused used to come home in drunken state and beat his wife suspecting her fidelity and that bout six months prior to the date of the offence, the accused axed his wife and so his wife lodged a report to the police and the accused was kept in judicial custody for about six months and that later, at the instance and advice of village elders and in view of well being of their children, wife of the accused compromised with the accused and got him released from remand and brought him to home. P.W.2 also speaks about the said previous incident. It shows that the accused, suspecting fidelity of the deceased, for which there is no basis, was always picking up quarrel with her and was attacking her indiscriminately. This is the motive proved by the prosecution for committing the present offence by the accused against the deceased. 8. P.W.1 is a resident of Shiva Nagar and was not a resident of Bollikunta village where the offence occurred. According to P.W.1, on 01-12-2006, P.W.4 came to his house at about 9 a.m. and informed the incident to him and that he went to the scene and enquired daughters of the deceased and thereafter gave Ex.P-1, report, to the police. P.W.8 received Ex.P-1 from P.W.1 on 01-12-2006 at about 10.30 a.m. and registered case in Crime No.84 of 2006 under Section 302 IPC and issued Ex.P-8, F.I.R. P.W.9 who is Inspector of Police, Mamnoor, took up investigation. During investigation, apart from preparing Ex.P-6, Crime Details Form, in the presence of mediators including P.W.7, he also conducted inquest on dead body of the deceased under the cover of Ex.P-7, inquest report, in the presence of Panchayatdars including P.W.7. He got the scene of offence photographed by P.W.6 as per Exs.P-2 to P-5, photographs with negatives. P.W.9 arrested the accused on 04-12-2006. After inquest, dead body of the deceased was sent to Kakateeya Medical College, Warangal, for autopsy. P.W.10 who is working as Associate Professor in Forensic Medicine, conducted autopsy on dead body of the deceased on 01-12-2006 and gave Ex.P-9 post-mortem examination report, in which he noted the following five injuries on the dead body: 1. Contusion of 4X2 cm. present on upper part of right side neck and another contusion of 6x4 cm. present on upper part of left side neck (black in color) with underlying extravasation of blood into the underlying structures of the neck in that place present, fracture of thyroid cartilage with extravasation of blood at the site of fracture. 2. Abrasion of 3x1 cm. present on right eye lid. 3. Abrasion of 3x2 cm. present on outercanthern of left eye. 4. Abrasion of 3x2 cm. present on the back of right elbow. 5. Abrasion of 2x1 cm. present on right cheek. He opined that cause of death was due to throttling. This conclusion is based on details contained in injury No.1 including fracture of thyroid cartilage. The oral evidence of P.Ws.2 to 4 is corroborated by medical evidence of P.W.10. Even though it is contended that there was no proper investigation of his case, it could not be pointed out as to where the investigation is not on proper lines. 9. It is finally contended by the appellant’s counsel that after the offence and during the time of trial, when he was in judicial custody, the accused was found to be having mental derailment and that in that mental state, the accused might have committed the offence. The appellant’s counsel addressed this argument as an alternative argument. But there is no plea on the part of the accused that he committed the offence during the time of his insanity. The burden is on the accused to prove the said plea. There is no evidence on record to show that the accused was suffering from insanity prior to, during and subsequent to the offence. This belated plea is not based on any material on record. 10. After considering the entire evidence on record, the lower Court came to right conclusion in favour of the prosecution and found the accused guilty under Section 302 IPC. There are no grounds in this appeal to come to a different conclusion. 11. Accordingly, the Criminal Appeal is dismissed. _________________________ A.GOPAL REDDY,J _______________________________ Dated: 29-11-2011 SAMUDRALA GOVINDARAJULU,J Kvr