Dismissed

Bodasu Kothaiah , Kothanna, v. The State of A.P.

Telangana HC11 Oct 2012CRLA/1480/2008

Case brief

AI extract

What is this about?

The High Court dismissed the criminal appeal against a life sentence awarded for murder. The court upheld the trial court's finding that the prosecution successfully proved the accused beat his wife, leading to her death from head injuries, based on eyewitness testimony and forensic evidence.

What did the court decide?

Criminal appeal dismissed; conviction and life sentence under Section 302 IPC confirmed.

Bodasu Kothaiah , Kothanna, Vs The State of… — Murder and Culpable Homicide | Telangana HC (2012)

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THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD

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Crl.A.No.1480 of 2008

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ORDER: (per the Hon’ble Sri Justice P.Durga Prasad)

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This appeal is directed against the conviction and sentence passed in S.C.No.547 of 2007 by the II Additional Sessions Judge Karimnagar at Jagtial on 24.06.2008.

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The appellant herein is the sole accused and he was prosecuted for the offence under Section 302 IPC.

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According to the prosecution the deceaed Bodasu Poshani @ Pochamma is the wife of the accused and they are having two daughters and two sons. The accused performed his elder daughter’s marriage. Since 1999 the accused went to Gulf countries 3 times for his livelihood. About 2 years back the accused returned to his house on vacation. At that time the deceased used to quarrel with the accused and did not participate in the sexual intercourse with him. After completion of his vacation the accused once again went to Gulf countries for livelihood. About 15 days back the accused once again returned to his house on vacation. This time also the deceased did not change her behaviour. On that the accused got doubt on the character of the deceased and started abusing her. On 20.10.2006 the accused went to his house in drunken condition, watched T.V. for some time. Later, the accused, deceased along with their children have their dinner and went to bed. After sometime, the accused went to the deceased with an intention to have sexual intercourse and woke up P.W.3 and requested them to sleep separately. On seeing the same, the deceased grew angry and did not agree to have sexual intercourse with the accused. The accused grew angry on the deceased, took near by wooden pestle, beat the deceased with wooden pestle over her head suspecting her fidelity, while beating

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some part of pestle touched the cot, on hearing the sound, the son of the deceased by name Kishan woke up from the sleep and the accused once again beat the deceased over her head with the same pestle, as a result of which the deceased sustained severe bleeding injuries and fell unconscious on the bed. Immediately, the said Kishan caught hold of the waist of the accused and dragged him. Thereafter, he went and brought P.W.3 and on hearing the cries of P.Ws.1 and 2, the relatives and neighbours came there and shifted the deceased to Government Hospital, Metpalli and where the doctor, advised them to shift the deceased to Government Headquarters Hospital, Nizamabad for better treatment and she died on 21.10.2006 while undergoing treatment due to head injury. On the complaint of Kishan, who is the son of the accused and deceased, P.W.12 registered a case in Crime No.215 of 2006 under Section 302 IPC and took up the investigation, examined the witnesses and conducted the scene of offence panchanama, held inquest over the dead body of the deceased and sent the dead body of the deceased for postmortem examination. The doctor, who conducted autopsy over the dead body of the deceased, opined that the deceased died due to head injury with intra cranial bleeding. Thereafter, the investigation was taken up by P.W.13 and he arrested the accused on 28.10.2006 and recorded his confessional statement and at the instance of the accused, P.W.12 recovered the wooden pestle used in the commission of offence from the house of the accused and remanded him to judicial custody and after completion of the investigation, he filed the charge sheet against the accused.

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The learned Sessions Judge has framed the charge under Section 302 IPC against the accused and he pleaded not guilty for the said charge.

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In order to establish the said charge, the prosecution examined P.Ws.1 to 13 and got marked Exs.P.1 to P.17 and M.Os.1 to 6. No oral or documentary evidence was adduced on behalf of the accused in

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defence.

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The learned Sessions Judge by taking into consideration of the said oral and documentary evidence found the accused guilty for the offence under Section 302 IPC and convicted and sentenced him to undergo imprisonment for life and also to pay fine of Rs.1,000/- in default to undergo simple imprisonment for 15 days.

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Aggrieved by the said conviction and sentence, the present appeal is filed by the accused therein.

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Now, the point that arises for consideration is: Whether the prosecution could able to establish the charge under Section 302 IPC against the accused beyond reasonable doubt? P O I N T:

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The legal aid counsel appearing for the appellant has pleaded that P.Ws.1 and 2 are interested witnesses and they have not witnessed the incident as they were sleeping at the time of the incident and the trial Court erred in convicting the accused basing on the evidence of P.Ws.1 and 2, as such the conviction and sentence are liable to be set aside.

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The Additional Public Prosecutor on the other hand has pleaded that P.Ws.1 and 2 are probable witnesses to be present at the time of incident being the children of the accused and deceased and they have categorically stated about their witnessing the incident of accused beating the deceased with a pestle on her head and the pestle, which was used by the accused in the commission of offence was recovered at the instance of the accused as per his confession in the presence of P.W.8 by the investigating officer, P.W.13 and the trial Court rightly found the accused guilty for the charge under Section 302 IPC.

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According to the prosecution, the deceased is the wife of the accused and they are having two daughters and two sons. The accused performed his elder daughter’s marriage. Since 1999 the accused went to

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Gulf countries 3 times for his livelihood.

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About 2 years back the accused returned to his house on vacation. At that time the deceased used to quarrel with the accused and did not participate in the sexual intercourse with him. After completion of his vacation the accused once again went to Gulf countries for livelihood. About 15 days back the accused once again returned to his house on vacation, but the deceased did not change her behaviour. On that the accused got doubt on the character of the deceased and started abusing her. On the date of incident i.e. on 20.10.2006 the accused, deceased and their children had dinner and slept and after some time the accused went to the deceased with an intention to have sexual intercourse and woke up P.W.3 and requested them to sleep separately. On seeing the same, the deceased grew angry and did not agree to have sexual intercourse with the accused. The accused grew angry on the deceased, took near by wooden pestle, beat the deceased with wooden pestle over her head suspecting her fidelity, while beating some part of pestle touched the cot, on hearing the sound, the son of the deceased by name Kishan woke up from the sleep and the accused one again beat the deceased over her head with the same pestle, as a result of which the deceased sustained severe bleeding injuries and fell unconscious in the bed and the same was witnessed by their children Kishan, P.Ws.1 and 2.

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According to the prosecution, the son of the deceased Kishan has lodged the complaint with the police. the said Kishan was not examined by the prosecution as he has gone to the Gulf Countries. The said complaint given by Kishan got marked as Ex.P.15 through P.W.12, S.I of police, who issued the F.I.R.

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In Ex.P.15, it was mentioned that on 20.10.2006 his father having fully intoxicated and came to the house at 06.00 p.m. in the evening and they were watching T.V. in their house, thereafter, his mother, his sister and his brother had their meals. His mother, his sister and his brother slept on a cot and he slept in another cot by their side. During the night at

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about 10.45 hours, while they were in deep sleep, his father took the wooden pestle, which was in the house and beat his mother on her head; while he was beating the part of pestle touched the cot, due to sound she got woke up and saw his father once again beat his mother, resulting his mother’s head was fractured and she became unconscious and was lying on the cot. He caught hold his father’s waist and dragged him and stopped him and pushed him away. On seeing his blood stained mother, he went to his neighbouring elder mother’s house by weeping and brought her and on hearing their hues and cries, their relatives came there. They took his injured mother to the Hospital, Metpalli for treatment, the doctor examined and advised to shift her to Nizamabad hospital. Then he shifted his mother to Nizamabad hospital and his mother died on 21.10.2006 at about 07.00 a.m. while undergoing treatment. It was mentioned that 15 days back his father returned from Dubai and then onwards he is harassing and beating his mother on the suspicion that she is having illegal contacts. Therefore, as per the averments made in Ex.P.15, the accused suspecting the fidelity of the deceased, caused the death of the deceased by hitting her on her head with pestle.

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P.W.1 is the daughter of the deceased, who was sleeping along with the deceased on the cot at the time of incident. P.W.1 has stated that her father returned from gulf countries 15 days before the Diwali in the year 2006 and he used to come home in drunken condition and used to pick up quarrel with her mother suspecting her. On that night around 10.50 p.m. they went to bed. The accused beat the deceased on her forehead with a pounder and when 2^nd time the accused again beat the deceased, they heard the sound when the pounder touched the cot, on hearing the sound they woke up and witnessed that the accused beat the deceased on her forehead and the accused also came upon her and beat her, in the meantime, her brother Kishan intervened to rescue her and he also sustained injury on his right leg. Her brother went and called his senior paternal aunt Ellamma, after sometime the Ellamma came there

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and when they were weeping her junior paternal uncle and his wife came there and on seeing them, the accused fled away with pounder. They brought the injured to the Metpalli hospital, from there she was shifted to Nizamabad, on the way to Nizamabad the car break down and then they engaged another car and shifted to Nizamabad and on the next day morning around 7.40 a.m. her mother died. She further stated that while the accused was viewing the T.V., herself, her mother and brothers went to sleep in a room and the accused viewed the T.V. till 01.00 in the midnight. In the cross-examination it was elicited that on that day the accused came and picked up quarrel with her mother and went away and she did not know when he again came to the home and she stated before police that the first hit struck the cot and the second hit struck the head of her mother.

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P.W.2, who is the son of the deceased and accused, also supported the version of P.W.1 with regard to the incident occurred on that night. He also specifically stated that after having dinner they went to sleep in a room and on hearing the sound when the accused beat his mother with a pounder, it struck to the cot and he woke up and saw the accused beat with pounder on the left side above eyebrow, then P.W.1 went near to the accused and the accused beat P.W.1 and in the meanwhile his elder brother Kishan came and went in rescue P.W.1. In the cross-examination he has stated that he do not know whether the accused raised a dispute before the parents of his mother and elders alleging that his mother was having illegal contacts with Dashagoud and by the time he woke up his mother was with injury above the left eyebrow and after he woke up the accused again beat her and the 2^nd injury was also at the same place.

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P.W.4, sister-in-law of the accused, has stated that the son of the accused came and informed that the accused beat the deceased; she rushed to the spot and saw the dead body of the deceased in a pool of blood. At the first instance she stated that she was not examined by the

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police and again she stated that she was examined by the police. In the cross-examination she stated that she did not know how she died and who inflicted the injuries and the Kishan also did not state anything to her.

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The other witnesses, P.W.3, sister-in-law of the accused, P.W.5, another sister-in-law of the accused and P.W.9, another sister-in-law of the accused, turned hostile to the prosecution. The other witnesses, P.Ws.6, 7 and 8 are the mediators for the inquest, scene of offence panchanama, confession of the accused and recovery of weapon, P.W.10, photographer, P.W.11, doctor, who conducted autopsy over the dead body of the deceased, P.W.l2, who issued the F.I.R. and investigated the case and P.W.13, investigating officer, who arrested the accused and filed the charge sheet.

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Therefore, the only evidence available on record to speak about the occurrence of the incident is the evidence of P.Ws.1 and 2. Both P.Ws.1 and 2 have categorically stated about the accused returning from gulf countries 15 days prior to the incident and they used to quarrel with each other and the accused suspecting the character of the deceased. As stated by P.Ws.1 and 2 the accused was in the house on that night and they have seen the accused beating the deceased with a pestle on her head. According to them the pestle hit on the cot, on hearing the sound they woke up and saw the accused beating her with pestle. Admittedly, P.Ws.1 and 2 were sleeping along with the deceased at the time of incident and from the evidence of P.Ws.1, 2 and 4 it is evident that the deceased was found with head injury in the house on that night itself and P.Ws.1 and 2 specifically stated that the accused was present at the time of incident. Therefore, the evidence of P.Ws.1 and 2 cannot be disbelieved as they are the natural witnesses to be present at the time of incident. According to P.Ws.1 and 2 the accused beat the deceased with a pestle on her head.

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Doctor, P.W.11, who conducted autopsy over the dead body of the deceased found 3 external injuries i.e. contusion of left eye, laceration over the parital region of scalp and fracture of parietal bone and he opined that the cause of death is due to head injury with intra cranial bleeding. Therefore, the oral evidence of P.Ws.1 and 2 is supported by the medical evidence of doctor, P.W.11.

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Apart from the said evidence, the investigating officer, P.W.13 arrested the accused on 28.10.2006 and in pursuance of his confession; P.W.13 recovered the M.O.6 pestle from his possession under Exs.P.5 and P.6 in the presence of P.W.8.

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P.W.8 is the mediator for the said confession and recovery also supported the version of P.W.13 with regard to the arrest of the accused and recover of M.O.6 at the instance of the accused. Thus, the prosecution could able to establish that the accused is responsible for the death of the deceased. Therefore, the trial Court rightly convicted the accused for the offence under Section 302 IPC and the said finding recorded by the trial Court does not warrant any interference by this Court in the appeal.

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In the result, the criminal appeal is dismissed. The conviction and sentence passed against the appellant – accused by judgment dated 24.06.2008 passed in S.C.No.547 of 2007 by the II Additional Sessions Judge, Karimnagar at Jagitial, for the offence under Section 302 IPC, is hereby confirmed.

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_______________________ JUSTICE N.V.RAMANA

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_____________________________ JUSTICE P. DURGA PRASAD Date:11-10-2012

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Ksp

Bodasu Kothaiah , Kothanna, v. The State of A.P.

Case brief

What is this about?

What did the court decide?

Bodasu Kothaiah , Kothanna, v. The State of A.P.

Case brief

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