APHC010957342017 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3528] TUESDAY,THE TWENTY NINETH DAY OF JULY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE K SURESH REDDY THE HONOURABLE SMT JUSTICE V.SUJATHA CRIMINAL APPEAL NO: 1557/2017 Between: 1. GOLAGANI SRINICASA RAO, S/O. SURYANARAYANA R/O. D.NO.20- 21-28, 5TH CROSS ROAD, THUMMALOVA, RAJAHMUNDRY, EAST GODAVARI DISTRICT. ...APPELLANT AND 1. THE STATE OF ANDHRA PRADESH, Rep. by Public Prosecutor, High Court Judicature at Hyderabad. ...RESPONDENT Appeal under Section 372/374(2)/378(4) of Cr.P.C praying that the High Court may be pleased to aggrieved by the Judgment Dt.14.9.2017 made in SC No.385/2013 on the file of Court of the Special Judge for Trial of Cases under SCs & STs (POA) Act -cum- X Additional District & Sessions Judge, East Godavari at Rajamahendravaram by convicting the appellant U/s 302 IPC to undergo rigorous life imprisonment, and also shall pay a fine of Rs.100/- in default of S.I for 50 days for the following among other grounds that may be urged at the time of hearing. IA NO: 1 OF 2017(CRLAMP 3059 OF 2017 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to condone the delay of 20 days in filing the above appeal aggrieved by the 2 KSR,J& VS,J Crla_1557_2017 Judgment Dt.14.9.2017 made in SC No. 385/2013 on the file of the Court of the Special Judge for Trial of Cases under SCs & STs (POA) Act -cum- X Additional District & Sessions Judge, East Godavari at Rajamahendravaram and to pass Counsel for the Appellant: 1. AMMAJI NETTEM 2. LEGAL AID Counsel for the Respondent: 1. PUBLIC PROSECUTOR (AP) The Court made the following: JUDGMENT: (Per Hon’ble Sri. Justice K. Suresh Reddy) Sole accused in S.C.No.385 of 2013 on the file of Court of the Special Judge for Trial of cases under S.Cs & S.Ts (PoA) Act-cum-X Additional District and Sessions Judge, East Godavari at Rajahmundry is the appellant. He was tried by the learned Special Judge under two charges. The first charge was under Section 498 IPC. The second charge was under Section 302 IPC. 2. Substance of the charge is that prior to 08.03.2013, the accused subjected his wife, by name Golagani Nagalakshmi @Peddintlu (hereinafter referred to as „deceased‟), to cruelty by beating her black and blue and on 08.03.2013, at about 09.00 p.m., he caused her death in his house bearing No.20-21-28, 5th cross road, Thummalova, Rajahmundry, by hacking her on 3 KSR,J& VS,J Crla_1557_2017 the back side of the head with a knife, thereby, committed offence punishable under Sections 498A and 302 IPC. (a) After completion of trial, the learned Special Judge convicted the accused under Section 302 IPC and sentenced him to suffer imprisonment for life and also to pay a fine of Rs.100/-, in default to suffer simple imprisonment for a period of 15 days. The learned Special Judge acquitted the accused for the offence under Section 498-A of IPC. 3. Case of the prosecution, as emanated from the evidence of prosecution witnesses in brief is as follows: (i) The accused and all the material prosecution witnesses are residents of Rajahmundry town. The deceased was also a resident of the same town. The accused is none other than the husband of the deceased. P.Ws.2 and 3 are son and daughter of the accused as well as the deceased. P.W.1 is cousin of the deceased. P.W.4 is father of the deceased. P.W.5 is the land lord in whose house, the accused and deceased were residing. P.W.6 is the relative. The marriage between the accused and the deceased was performed about 19 years prior to the date of incident and they were blessed with two children, who were examined as P.Ws.2 and 3. The accused is eking out his livelihood by doing painting work. The deceased was a home maker. The accused used to harass the deceased, both physically and mentally. The accused used to insist the deceased not to speak with relatives 4 KSR,J& VS,J Crla_1557_2017 and neighbors. Though the relatives of the deceased and neighbors tried to convince the accused, he used to threaten them with dire consequences. (ii) While so, on 08.03.2013, at about 06.00 p.m., the accused went out and returned home at about 09.00 p.m. He demanded the deceased to serve food, for which, the latter asked him to wait for five minutes. Suddenly, the accused grew wild, brought the knife and hacked on the back side of the head of the deceased, due to which, she fell down and died instantaneously. When P.W.3 – daughter of the accused, tried to snatch the knife, he caused injuries to her right middle finger and right ring finger, who received two incised wounds. Immediately, P.Ws.2 and 3 went to the house of P.W.1 and informed the same. P.Ws.1 to 3 returned home and found the accused going away with knife. They found the deceased in a pool of blood. Immediately, P.W.1 went to the Police station and gave a report. At about 11.30 p.m., P.W.12 – Inspector of Police, Rajahmundry III Town Law and Order Police station received Ex.P.1 from P.W.1 and registered a case in Crime No.78 of 2013, under Section 302 IPC. He issued copies of FIRs to all the concerned. Ex.P.9 is the FIR. He visited the scene of offence at 01.05 a.m., on 09.03.2013 and posted a guard. (iii) At about 06.00 a.m., on the next day, he again went to the scene of offence and prepared an observation report (Ex.P.5) in the presence of P.W.5 and another. He also prepared a rough sketch at the scene of offence, 5 KSR,J& VS,J Crla_1557_2017 which is marked as Ex.P.10. He seized blood stained floor pieces (M.O.4) and controlled floor pieces (M.O.5) at the scene of offence. At about 08.30 a.m., he held inquest over the dead body, in the presence of P.W.6 and another. Inquest report is marked as Ex.P.6. During the course of inquest, he recorded the statements of P.Ws.1 to 5. During inquest, he seized M.Os.6 to 9. Thereafter, he sent the dead body for postmortem examination. He also sent P.W.3 to hospital, for treatment. (iv) One Dr. Mohammad Bilal, Medical officer, District Hospital, Rajamahendravaram conducted autopsy over the dead body. He opined the cause of death was due to extensive head injury and injury to vital organ brain. He issued postmortem certificate, which is marked as Ex.P.14. As Dr. Mohammad Bilal who conducted postmortem was not available, P.W.13 – Civil Assistant Surgeon, District Hospital, Rajamahendravaram identified the signature of Dr. Mohammad Bilal. (v) P.W.10 – Civil Assistant Surgeon, Government hospital, Rajahmundry gave treatment to P.W.3. He issued wound certificate (Ex.P.4). He opined the injuries of P.W.3 are simple in nature. (vi) On 09.03.2013, P.W.12 recorded statements of P.Ws.6 to 9 and others. On 13.03.2013, P.W.12 apprehended the accused near railway station, Rajahmundry, in the presence of P.W.11 and another. On the confession made by the accused, P.W.12 seized M.Os.1 to 3, under 6 KSR,J& VS,J Crla_1557_2017 panchanamas Exs.P.7 and P.8. The accused was arrested, who was remanded to judicial custody. On 26.03.2013, P.W.12 sent M.Os.1 to 9 to RFSL under a letter of advice (Ex.P.12). RFSL report is marked as Ex.P.13. After receiving the RFSL report, wound certificate and postmortem certificate and after completion of investigation, P.W.12 filed charge sheet. 4. In support of its case, the prosecution examined P.Ws. 1 to 13, marked exhibits P.1 to P.14 and exhibited M.Os.1 to 9. On behalf of the defence, Ex.D1 was marked. When the accused was examined under Section 313 Cr.P.C., he denied the incriminating material appearing against him. 5. Accepting the evidence of P.Ws.1 to 4, the learned Special Judge convicted the accused as aforesaid. 6. Heard Smt. Ammaji Nettem, learned legal aid counsel for the appellant and Sri. Marri Venkata Ramana, learned Additional Public Prosecutor, representing the State. We have carefully analyzed the entire evidence on record. 7. Learned counsel for the appellant strenuously contended that Ex.P.1 was silent about P.W.3 receiving injuries. She further contended that the doctor, who conducted postmortem was not examined by the prosecution and as such, the accused was deprived of cross examining the doctor who conducted postmortem. She further contended that the ocular version of P.Ws.2 and 3 was not corroborated by the medical evidence. She also 7 KSR,J& VS,J Crla_1557_2017 contends that no reliance can be placed on the evidence of P.W.2 and 3 who are child witnesses. It is further contended by learned counsel for the appellant that explanation as required under Section 106 of the Evidence Act would arise only after the prosecution has laid foundational facts before invoking the said provision. As such, non-explanation by the accused cannot be taken as serious note of it. Finally, she stated that the accused was in drunken condition and the incident took place when the accused was in intoxicated condition. As such, the offence would not fall under Section 302 IPC. As such, she requested this Court to set-aside the conviction and sentence recorded by the learned Special Judge. In support of her contention, she relied on the following judgments:  Pradeep Vs. State of Haryana1,  Mirza Ghani Baig Vs. State of A.P.2,  Sadashiv Dhondiram Patil Vs. State of Maharashtra3 8. On the other hand, learned Additional Public Prosecutor opposed the appeal contending that the presence of P.W.2 and 3 in the house of the accused and deceased is natural and their presence cannot be ruled out. He further contends that P.Ws.2 and 3 are none other than son and daughter of the accused and they have nothing to falsely implicate their father. He also contends that P.W.3 is the injured witness and the same has been established by adducing the evidence of P.W.10, coupled with wound certificate (Ex.P.4). 1 AIR 2023 Supreme Court 3245 2 1997 (1) ALD (Crl.) 620 (AP) 3 (2025) 4 SCC 275 8 KSR,J& VS,J Crla_1557_2017 He further contends that merely because P.Ws.2 and 3 are child witnesses, their evidence cannot be discarded. As such, he sought to dismiss the appeal. 9. P.Ws.2 and 3, in their evidence categorically stated that on the fateful day, at about 06.00 p.m., the accused went out and returned home at around 09.00 p.m. Both of them consistently stated that the accused used to beat the deceased frequently. P.Ws.2 and 3 in their evidence categorically stated that after returning home, the accused asked the deceased to serve food, for which the deceased replied stating to wait for five minutes. Immediately, the accused went out, brought a knife and hacked the deceased on the back side of the head. A minor variation was stated by P.W.2 stating that the accused hacked on the back side of the neck of the deceased. Having witnessed the incident, when P.W.3 tried to snatch the knife from the accused, the latter inflicted injuries on her fingers. Immediately, P.Ws.2 and 3 rushed to the house of P.W.1 and informed about the accused hacking the deceased. It is also stated by P.Ws.2 and 3 that immediately, P.Ws.1 to 3 came to the scene of offence and observed the accused going away holding the knife. P.W.1 also stated in the same lines i.e. the accused going away holding a knife, from his house. According to the prosecution, the incident took place at about 09.00 p.m. Immediately, P.W.1 went to the Police station and gave a report at about 11.30 p.m., which fact was spoken to by P.W.12. Having received Ex.P.1 – report, P.W.12 took up investigation at about 01.05hrs, on the same night. P.W.12 also stated that he sent P.W.3 for medical treatment. P.W.10, who 9 KSR,J& VS,J Crla_1557_2017 treated P.W.3 has also issued wound certificate (Ex.P.4) stating that she received injuries on right ring finger and right middle finger. 10. The evidence of P.W.4 – father of the deceased, P.W.5 – landlord of the house and P.W.6 – relative, show that the accused used to quarrel with the deceased regularly. Of course, the learned Trial Judge acquitted the appellant under Section 498-A of IPC. Mere non-mention of receipt of injuries by P.W.3 in Ex.P.1 cannot be taken as serious note of it. The said omission is a minor one, which cannot go to the root of the case. The evidence of P.Ws.2 and 3 is consistent and the same inspire confidence of this Court to place reliance on their evidence. Further, the ocular version spoken to by P.Ws.2 and 3 is also corroborated by the medical evidence (Ex.P.4) adduced by the prosecution. 11. In the judgment relied on by the learned counsel for the appellant in Pradeep Vs. State of Haryana (1st supra), the Hon‟ble Supreme Court held as follows: “8. It is a well-settled principle that corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. A child witness of tender age is easily susceptible to tutoring. However, that by itself is no ground to reject the evidence of a child witness. The Court must make careful scrutiny of the evidence of a child witness. The Court must apply its mind to the question whether there is a possibility of the child witness being tutored. Therefore, scrutiny of the evidence of a child witness is required to be made by the Court with care and caution. 10 KSR,J& VS,J Crla_1557_2017 9. Before recording evidence of a minor, it is the duty of a Judicial Officer to ask preliminary questions to him with a view to ascertain whether the minor can understand the questions put to him and is in a position to give rational answers. The Judge must be satisfied that the minor is able to understand the questions and respond to them and understands the importance of speaking the truth. Therefore, the role of the Judge who records the evidence is very crucial. He has to make a proper preliminary examination of the minor by putting appropriate questions to ascertain whether the minor is capable of understanding the questions put to him and is able to give rational answers. It is advisable to record the preliminary questions and answers so that the Appellate Court can go into the correctness of the opinion of the Trial Court.” 12. In the present case on hand, we have carefully scrutinized the evidence of P.Ws.2 and 3 and there is nothing exaggeration in their evidence. The learned counsel for the appellant contended that these two child witnesses i.e. P.Ws.2 and 3 were tutored by the prosecution, but no suggestion was given either to P.W.2 or P.W.3 that they were tutored by the prosecution. 13. Coming to the claim of Section 85 IPC, in the judgment relied on by the learned counsel for the appellant i.e. in Mirza Ghani Baig Vs. State of A.P., (2nd supra) it was held as follows: “11. Thus it is clear from Section 85 that voluntary drunkenness is no excuse for commission of a crime and the Court will not attach any importance to the fact that the accused was drunk at the time of commission of the crime. In order to invoke the plea of drunkenness the 11 KSR,J& VS,J Crla_1557_2017 correct test to be applied is by reason of intoxication whether the accused person was incapable of knowing the nature of the act and that the thing which intoxicated him was administered to him without his knowledge. In Enrique F. Rio v. State (1) 1975 Crl.L.J.1337 it was held: “Evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into consideration with the other facts proved in order to determine whether or not he had this intent, but evidence of drunkenness which falls short of proving such incapacity and merely establishes that the mind of the accused was so affected by drink that he more readily gave way to some violent passion does not rebut the presumption that a man intends the natural consequences of his act.” It was further held: “However, in view of Section 86 Indian Penal Code the accused should be imputed with the knowledge of his act. This takes out his case from the rigour of a case of murder to one of culpable homicide not amounting to murder.” ” 14. In the case on hand, there is no material to show that the accused was under the influence of alcohol at the relevant point of time. As such, the judgment relied on by the learned counsel is not applicable to the facts of the present case. 15. The contention raised by the learned counsel for the appellant was that non-explanation as required under Section 106 of Evidence Act cannot be taken as serious note of it and the learned counsel for the appellant relied on the judgment of the Hon‟ble Supreme Court reported in Sadashiv Dhondiram 12 KSR,J& VS,J Crla_1557_2017 Patil Vs. State of Maharashtra (3rd supra). In the said judgment, the Hon‟ble Supreme Court held as follows: “50. The law in the aforesaid regard is well-settled. The prosecution has to prove its case beyond reasonable doubt and that too on its own legs. The initial burden of proof is always on the prosecution. However, in cases where husband is alleged to have killed his wife in the night hours and that too within the residential house, then undoubtedly the husband has to offer some explanation as to what had actually happened and if he fails to offer any plausible explanation, this can go against him. However, Section 106 of the Evidence Act is subject to one well-settled principle of law. The prosecution has to first lay the foundational facts before it seeks to invoke Section 106 of the Evidence Act. If the prosecution has not been able to lay the foundational facts for the purpose of invoking Section 106 of the Evidence Act, it cannot straightaway invoke the said section and throw the entire burden on the accused to establish his innocence.” 16. In the case on hand, the prosecution has laid its foundation by adducing the evidence of P.Ws.2 and 3, who are eye-witnesses to the incident, particularly P.W.3 being injured witness, that too being son and daughter of the accused. As such, as the deceased met with homicidal death in his house, it is incumbent on the part of the appellant to explain as to how the deceased met with homicidal death. No such explanation was forthcoming from the accused. Further, M.Os.1 to 3 were recovered at the instance of the accused. RFSL report (Ex.P.13) also show that M.Os.1 to 3 were containing human blood. In view of the above facts and circumstances, the prosecution is able to prove the guilt of the accused through the evidence of P.Ws.1 to 3, coupled with the evidence of P.W.10 and Exs.P.4 and P.14. 13 KSR,J& VS,J Crla_1557_2017 17. In view of the above facts and circumstances, we have no hesitation to come to the conclusion that the conviction and sentence recorded by the learned Special Judge for Trial of cases under S.Cs & S.Ts (Prevention of Atrocities) Act-cum-X Additional District and Sessions Judge, East Godavari at Rajahmundry in S.C.No.385 of 2013, dated 14.09.2017 needs no interference. Needless to state that the period already undergone by the appellant shall be given set off under Section 428 Cr.P.C. 18. In the result, the criminal appeal is dismissed, confirming the conviction and sentence recorded by the learned Special Judge. As a sequel, interlocutory applications pending, if any, shall also stand closed. ___________________ K.SURESH REDDY, J _______________ V.SUJATHA, J Date:29.07.2025. Gss