Ontipuli Gopi , Gopaiah, Krishna Dt., Vs the State of Telangana, Rep Pp.

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BAIL SLIP : The^{Appelant / Accused was directedto be released on bail by the} Order of the High Court dated 17-11-2023 made^{in l.A.No.1 ot 2023in} Crl.A.No.220 of 2O17

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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TUESDAY, THE TWENTY FIFTH DAY OF FEBRUARY TWO THOUSAND AND TWENry FIVE

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PRESENT

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THE HONOURABLE SRI JUSTICE K.SURENDER AND

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THE HONOURABLE SRI JUSTICE ANIL KUMAR JUKANTI

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CRIMINAL APPEAL NO: 220 OF 2017

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Appeal under Section 374 of Cr.P.C. against the Judgment dated 18-01-2017 & 20-01-2017 made in S.C.No.86 ol 2014 on the file of the Court of the Special Sessions Judge-cum-Vll Additional District & Sessions Judge at Mahabubnagar.

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Between:

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Ontipuli Gopi @^{Gopaiah,S/o. Venkateshwarlu, Aged26 yrs, Occ Coolie,R/o} NTR Colony, Gampalagudem Village, Krishna Dist

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...Appellant / Accused No¹

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AND

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The State of Telangana, Rep. by its Public Prosecutor, High Court Bldgs, Hyderabad, through Gampalagudem PS, Krishna Dist

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...Respondent / Defacto Complainant

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Counsel for the Appellant Sri Sridhar Lonkala

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Counsel for the Respondent Sri Arun Kumar Dodla Additional Public Prosecutor

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The Court delivered the following Judgment :

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HON'BLE SRI JUSTICE K.SURENDER I And

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HON'BLE SRI WSTICE ANIL KUIUAR JUKANTI CRIMINAL APPEAL No.22O OF 2OL7

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JUDGMENT: (per tlon'ble Sri Justice K.Surende r)

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The appell dr t/A1 was convicted and sentencecl to undergo life imprisonment lor the offence under Section 302 of IPC vide I judgment in S c No.86 of 2Ol4 dated I8.O1.2Ot iz passed by the Special Session S Judge-cum-Vll Additional Distri,:t and Sessions Judge at Mahabubnagar. Aggrieved by the same, present appeal is hled.

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Briefly, the case of the prosecution is that orL 22.03.2011, at 9:00 PM, the CD file in Cr. No.20/2011 under Se<:tions 3O4-B,2Ol read with 34 of IPC of Gampalagudem PS, Kristrna District, was received at Jadcherla Police Station on the poinr of jurisdiction through the proper. channel, along with the Memo dated 2 1.03.20I 1 from the Superintendent of Police, Mahbubnagar.

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i J The complairranl, PWl, father of Smt. Ontipuli Nagalaxmi i (hereinafter referred to as the 'deceased'), lodged a written complaint at G amlla lagr.rdem PS on 22.02.2011. In his complaint,

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i marked as ExPl I he stated that he is a resident of Penuganchiprolu I I I village and had pe rfo rrhed the marriage of the deceased with Al on 24.lr.2OlO. OneI week after the marriage, the deceased went to her in-laws' house at Gampalagudem village. Subsequently, the deceased was ta ken tr] A1 (husband of the deceased), ,A.2 (father-inlaw), A'3 (mothe rI In IaJ), A4 (brother-in-law), and A5 (wife of A4) to Bureddypally, adcherla, for manufacturing bricks. PWl further 1 stated in ExPl that I at the time I of marriage, he had given a dowry of <2O,OOO/-. The deceas ea naa informed him over the phone that A1 to A5 were harJssing her for additional dowry and that they atso used to beat he.l daily.

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One week before the incident, PWl, PW4 (wife of PW1), and their son went to Jadcherla, where the deceased informed them about the torture and harassment she was facing. While weeping, she requested PWl to take her back. However, when PWl was i about to take theI deceased with him, Al to A5 intervened and convinced him that they would not harass or beat the deceased and would take care of her properly. They also assured him that they would bring the deceased to Penuganchiprolu village after one

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week. Believing their assurances, PW 1 returned to his village. However, PW1 again received phone calls from the deceased stating that her husband and in-laws had intensifiecl their torture and harassment for additional dowry. Amidst this, c,n 20.02.2011, As informed PW4 that the deceased had died, that t.hey were bringing her body to Gampalagudem village, and asked P1fu'4 to come and see the body. PW4 conveyed this information to PW when he returned home. PWl and PW4 Uecame suspicious of ,{1 t,r A5, believing that they l-rad ill-treated the deceased and murdered her by administering pc,ison. In Ex.P1, PW1 also allegei that A1 to A5 had conspired to bring the dcceased's body to Gamprriagudem village to bury it without informing the police at Jadche-la. However, their relatives objectdrl to this attempt. Upon receiv.rrg the complaint, PWlO (SI of Polii:e, Gampalagudem PS) regrstererl a case in Cr. No. 20/2011 underlSections 304-8, 2Ol read with Il4 of IPC, issued FIR-ExPS, and took up'the investigation.

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During the course of the investigation, PV/10 requested the Tahsildar of Gampalagudem village to visit r-he scene of the incident, i.e., the house of the accused at Gampala.gudem village, to

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conduct an inq est over the deceased's body, as the post-marital eriod of the de ased was within seven years of marriage, and to record the stal"ment of witnesses and blood relatives. PW10 visited the hou e of the accused at NTR Colony, Gampalagudem village, where the decease d's body was kept and conducted l inquiries. M ean hile, the Tahsildar of Gampalagudem village went l to the scene condrlcted an inquest over the deceased's body in ""1 i the presence t, mediators (LWs 12 and 13) and PW9, and subsequently sJ,t rhe body to Specialist Area Hospital, Tiruvuru, for postmortem lexamlI hation Later, PWl l conducted the autopsy i and preserved ],n" o"beased's viscera for chemical analysis and report.

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Thereafter, PW10 transferred the CD file to Jadcherla PS on the point ofjurisdiction through the proper channel. Upon receiving it the CD hle, LWIS findpector of Police, Jadcherla PS) re-registered the case as Cr. No. 95 /2011^{under Sections 304-8,20 Iread with} 34 of IPC, and issued FIR-ExP11, dated 22.O3.2011. Subsequently, on PW12 (SDPO, Mahbubnagar) took up further investigation 23.O3.20r1.

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During thr: investigation, PW12 visited tl: e. scene of offence, which was an agricultural iand belonging to Pa,lala Mallesh (pWS), located south of the BT Road leading frorrr Mahbubnagar to Jadcherla, approximateiy 3 km west of Jadcherla pS, and conducted inquiries. PW 1 2 also secured the prr.sence of mediators (PWS and LWl5) and, i in their presence, conducted a scene of I offence panchariama. PW12 examined and recorded the statements ofPWslto4 arr d 6 to 8, and LWs 5 to 7. Upon perusing the PME report (ExP9), PW12 sought clarifications from [,W11 regarding the cause of death.'PWl l reported that he had conducted the pME alone, as no oth'-,r doctor was available He statercl that the injuries mentioned in trxP9I were sufllcient to caLrse death. He further cla rifiecl that rro I smell of poison was detected r-Lpon opening the stomach, which vas found empty, and that no contents were found. Following the I 'sdlrections, he preserued the rlr:ceased's viscera. On 26.04.2011, A 1 to lA5, who had surrendered before the police, were arrested anrl sent to judicial remand on the :;;rme day.

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During the rnvestigation, it was revealed that in the hrst week of December 2O',O A1 to A,5, along with the rk-,ceased, went to

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Bureddypally vilIlage toi work as laborers in brick manufacturing at the field of PW5 They brected three small huts at the worksite, one for Al and the eceaseI d, one for A2 and A3, and one for A4 and It came to light that A5 allegedly teased the ...:.:::"i,:;J d to outrage her modesty. Upon learning of this, Al to A5 plesumJ d that the deceased would expose them and lj began ha.assi.,[ her flrther, allegedly inlending to get rid of her. ti They subjected her to continuous physical and mental harassment, I demanding additionalI dowry knowing well that the deceased's I parents were unhble I to fulfi11 their demands.

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9 On 20.o,LO,. at approximately 5:30 AM, the accused allegedly o...r..1.d with the deceased and beat her, causing her to f.11 ,rr"o.sciorJ. PW2 (a neighboring agriculturist), upon hearing hue and cries, J,ived at the scene and found the deceased lying on the ground. t.tL., at to A5 placed the deceased on a cart, which was used ro. "Jrr,r.r, brick mud and stated that they were taking her to a hospital. However, she died on the way, and A1 to A5 failed to report the incident to Jadcherla PS. Allegedly, with the intent to

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scree n evidencrl and conceal the offence, they transported the deceased's body to thelr native village, Gampalagudem.

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l l 10. During thei pendency of trial, 42 passed a,,vay, and the case l against him was I abatJd. aft.. the conclusion of the investigation, charges were frzrmed under Sections 498-A,3O',',,2O1 read with 34 of IPC, alternati.rely under Section 304-8 of IPC, ilgainst A1 and A3 to A5.

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1 1 . Learned Sessions .Iudge, having framed charges against A1, A,3 to A5, found that A1 was guilty under Secti,)n 302 of IPC. The appellant was fo'und not guilty of Section 4gB-A lF'C and 304-8 IPC.

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,A3 to A5 were found not guilty under all the penal provisions for which they were' charged.

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Learned SessionslJudge found that the de<:r:ased's death was homicidal, base di on:

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The e\ idence of PW9, the mediator tc the inquest, who depose'd about the external injuric s. found on the deceased's body during the inquest, as recorded in ExP6.

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The tbI stimony of PW1l, the doctor who conducted the autoDh,lI y, who l opined in Expg (pME Report), relying on ExPl0 (FSL Report), that the victim likely died due to shocJ cause d by grievous injuries and throttling. FurthtrmorJ the judge noted that the photographs and I CD fiI Ied aiorlg with the inquest report demonstrated that the t .."a"bd had been severely beaten, further corrojoratinc^{the inquest} report regarding the external injurils observed on the deceased

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Learned .1".,o.," Judge found Al guilty of the deceased,s death, since the decea$ed i was alone with A1 in a separate hut and the death occu.lr within the conlines of that hut, and A1 failed to discharge the birrden placed upon him under Section 106 of the I Indian Evidencd ect lteA;. He was unable to provide a cogent explanation for the I injuries sustained by the deceased, which led to l1 her death. Furtiler, the defence of t he appellant that the deceased had died by consuming poison was negated by the FSL report.

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Learned c:unsel appearing on behalf of ltre appellant would submit that the death was suicidal. The victim was suffering from e epilepsy and a fter sh suffered an epileptic eLttack while being shiftcd to the hospital,, she died. Learned counsel submitted that since the proser:ution failed to prove that the dr:ath was homicidal, the conviction tias to be set aside. Learned counsel lurther argued that this Courr- by order dated 17.11.2023 5lranted bail to the appellant mainly on the ground that there are contradictory statements of t he witnesses regarding the dea':h of the deceased. Further, in vie'w of the improvements made in the evidence of P.Ws.1 to 3, bail was granted

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On the orher hand, learned Additional Public Prosecutor subm its that the medical evidence is clear regzu-ding the cause of death being lrornicidal.

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P.W. 1, who is the father of the decease,l stated that he received information that the deceased consurned poison. P.W. 1 made lrantic eflbrts to see the deceased by cailing the appellant over phone. Ho,vever, P.W.1 was misled regarcling their location P.W. i lodged complaint to the police and later ,:ilme to know that

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the dead body was ikept in Gampalagrdem^{village,which is} appellant's nati\ e placb and on reaching the^{village,he found the} the decease d underneath the tin^{shed inthe} dead body of appellant's hous e. The fact that the dead^{body was found in the tin} shed of the appeIllant iS not disputed.

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Though, it lwas informed to^P.W. I^{at 5.30 A.M on 2O.O2.2 011,} I however, he cou.Id not See the deceased until the night, on the^same I I day. I

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Initially, G ampalagudem^{police registeredcomplaint on the} basis of the wntten complaint^{given by P.W. 1. The inquestwas} conducted by w.10, who worked as Sub-Inspector of Police of I Postmortem examination was^also Gampalagudem village conducted after conclusron^o f inquest^proceedings I

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P.W.1 1 is eDoItI or, who conducted autopsy on^{the body of} I the d""."""d ol 22.O 2. 2011. He observed ante mortem^injuries, I which are, 1) DisI location of the Tibio-tarsal^joint on^{the right side.} 2) Dislocation of the Atlanto-Occipital Joint,^{and 3) Hyoid bone}

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fracture is present. The Doctor further^{stated that there was no} organo phosphate smell present in^{the stomach and stomach was}

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empty. The re:rson fol aeath was multiple ir:juries resulting in hemorrhage and shock as a result of cardio respiratory arrest. Ex.P9 is the postmort.L, .*.mi.ration report anc Ex.p10 is the FSL report

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The defenc,r of the appe[ant is that the deceased consumed poison and on dccount of the trans portation of the deceased body over a distance rl neariy 3OO kms, the injuries u,ere received. The defence can be gathered from the suggestions given to the Postmortem ex:rmination Doctor/p.W. I l. p.W 1 I denied the suggestron and <'laimed that the fractures mentioned in Ex.p9 are grave ar-rd will nbL be caused by transporting the rl:ad body, though it is for a distancc of 300 kms.

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P.Ws.2 and I stated before the Court that th.y came to know l, that the deceasre, I consumed poison and they sretw the deceased li outside the hut :;lruggling for her life. Neither p.W.2, nor p.W.5 were declared hos tile to the prosecution case. p.vr' 5 further stated that he found froth coming from the mouth of the deceased and did not found any inj:rries on the body of the deceas,:,1 while she was being shifted to tl e hospital. p.w.g, who stated that the deceased

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was suffering m epilepsy was declared hostile to the prosecution

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case.

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The cause of dea found by the postmortem Doctor was due to multiple inj ries. The following injuries were recorded in the postmortem ex ination and stated by the Doctor in his evidence

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before the Cou

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1. Dislocatioi of the Tibio-Tarsal Joint (Right Side):

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the dislocation of the ankle joint, which usually 3J,i:",:# high-impact trauma, such as a fall from a significant height or severe twisting force. L

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2. Dislocatioh of thb Atlanto-Occipital Joint:

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a) This injury] involvbs the separation of the skull from the spine at the base'of the head.

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b) It is a ".1.." irijury typically associated with high-impact trauma, hdnging, lstrangulation, or violent force.

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c) In most cdses, this type of injury leads to instant death or severe neurological lr impairment.

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3. Hyoid Bone Fracture:

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The hyoid bone id located in the neck, and fractures are most commonly bbserved in cases of manual strangulation, ligature stran gulation, or hanging.

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The presence of a hyoid bone fracture is a strong indicator of

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asphyxia due to external force applied to the neck.

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Epilepsy crr epileptic seizures in a persorL may lead to head injuries or to the hmbs. Firstly, there is no evidence hled by the appellant to shc,w that the deceased suffered fronr epileptic seizures at any point of time or that she was treated for ihe said condition. The injuries tl-r:,t wt:re received by the deceased cannot be a result of fatt due to epileptic seizure. The question oI epilitic seizure fall resulting in hyoid bone liacture is not found in any medical book The postmortern Doctor also ruled out such a possibility.^The fracture of hyoirl bone rvould result from compression of the neck, mostly relatecl to strangulation, and not by fall.

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In the^'lextbook ol-Medical Jurisprudence and Toxicolory by Jaising P Modi, 27th trdition, the below is the extract from^page 582.

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"It should be rLoted here that the hyoid bor'.et and supeior cornuee oJ the thyroid cartilage are not, as o.^rule, fractured by ang other means other than by.strangulation, although the largnx and the trachea mag, in rare co,si?s, be fractured bg a Jall. Post-mortem fracture of the \goid bone is charactenzed bg the absence of haemorrhage in the tzssues around the fracture. "

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Further, .rt page 586 and 587, the A.trthor has drawn differences in between^"Hanging" and^{"Strangulation".} It^ls

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specifically mentioned ithat the fracture of the larynx trachea^and hyoid bone is a leai tu re of strangulation i 26. In cases dfI circumstantial evidence, the Honble Supreme I Court in srraraL Birdhichand Sarda v. State of Maharashtra^1,

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held as follows:

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"153. A close analg SIS of this decision uould shou.t that the follouing conditions mustl be Julfilled before a case agdinst an accused can^be said^{to be} fullA^{e stablishedr:} I

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(1) the circumitances fiom^{uhich the conclusionof guilt is to be draunshould} be futty estabtilhed. It hng be noted here that this Court indicated^thatthe circumstances rhncerned "must or should" and not^{"may be" established. There} is rtot only a grdmmatical but a tegal distinction betueen^{"may be prgued" ctnd} "musl be or shduld be proued" as uto,s hcld. bA this Court in Shiuaji Snhabrao Bobatle u. Staie of Maharashtra l(1973) 2 SCC 793 : 1973^{SCC pfl1o33 :} 1973 Crl Ll 17b31 u-heie rhe obseruations utere made: ISCC^{para 19, p. 8O7:} SCC ltCnJ p. 1044

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"Certainlg, it is o phmary pinciple that the accused must be and not merelg malq b/ guiltg b"pr. o court can conuict and^{the mentaldistance} betueen '^og b.' and 'must be' is long and diuides^{uagueconiectures} from sure conclusiont." li I

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(2) the facts sb estcbliihed should be consistent onlg Luith the hgpothesis of the guitt of the hccused,ithat is to say, theg should^not be explainable^{on any} other hypothesii except that the accused is^guiltg,

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(3) lhe ciratmitances I should be of a conclusiue natltre and tendency,

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(4) the7 shoutil excludel euery possible hgpothesis except the one to^{be proued,} and

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(5) there must be a chain of euidence so complete as not to leaue ang reasonable ground for the concluston consistenl utth the innocence of the accused and

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'(19841^{4 sccr16}

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mu.st shou., thal [n all human probabilitA the act must h:t;te been done bg the accused- "

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The conclu.t of the appellant is also to be lcoked into. It is the specific case that the deceased committed suicide by consuming poison. No reasrins are given as to why a distance of 3oo kms was covered withou tak1ng the deceased to the nearest Doctor or I hospital for treating her. The first reaction of a person is to take the person, who l-rarl consurned poison, to the nearest Doctor. Having taken the dead bodv of deceased and traveling over a distance of 300 kms, thereafter, the dead bodywas placed in the tin shed of the appellant's residence. The bu rden is on the appellant to explain the I cause of death, I ; n view of Section I 06 of the Indian Evidence Act The prosecution I has discharged its initial burden of proving that I the death was homicidal which happened withi, the four walls of the hut of the aopellant and i deceased. once the initial burden is discharged, it is for the appellant to prove his case. As already discussed, the Jr:fence of the appellant is suicide by the deceased through poison consumption. The death by pois,rning is ruled out by P.W. 1 1/Doctor.

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In Balvir lsinghl i v. State of Uttarakhand² , the Hontrle Supreme Courl held as follows: I'

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'35. In Sharlbhu Natit Mehra u. The State of Ajmer reporterl in AIR 1956 SC 4O4, thislcoutt tuhile consideing the usrd "especiallg" emploged in Section 10'6 of the\ Euidence Act speaking through Viuian Bose, J., obserued as under:

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'11. ... The utord 'especially" I slresses that. It means facts that are preeminently or dxceptionallg utithin his knouledge. If the section utere to be interpreted othentsise, it ulould lead to the uery startling conclusion that in a murcler casb the burden li.es on the accused to proue that he dtd not commit the ml.rd.er becituse uLho could knou better than he u,thether he did. or did nol. I

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It is euident that that cannot be the intention & the Piuy Council has twice refused to cdnstrue this section, as reproduced in certain other Acts outside India,lto mean,that the burden lies on an accused person to shout that he did nbt commit the cime for u.thich he is tied. These cases are Attggalle u. The King, 1936 PC 169 (AIR V 23) (A) and Seneuiratni: u. R, 1936-3 AU ERl36 at p. a9 @)."

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The aforelaid I decision of Shambhu Nath (supra) has been referred to and relied upbn in Nagendra Sah u. Stdte of Bihar reported in (2021) 10 SCC 725, uhdrein this Court obserued as under:

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"22. Thus, SJction tO6 of the Euid.ence Act will applA to fhose cases uhere the pro\eattion ho's succeeded in establishing the facts from uhich a reasonable^'\inferencb can be dranun regarding the existence of certain other facts u.thich are tuithin the special knou.tledge of the accused. When the accused fails to offer proper explanation about the eistence of said other facts, thb court can aluags dra ut an appropiate inference.

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When a crise l rs resting on circumstantiat euidence, if the accused fails to offer a reaslsnable explanation in discharge of burden placed on him bg uirtue of Sectlon 1O6 bf the Euid.ence Act, such a failure may prouide an additional link to the' chain of circumstances. In a case gouemed by iircumstantial euidence, if the chain of circumstances uhich is required to be established by the proseattion is not established, the failure of the acased to discharge the burden under Section 106 oJ the Euidence Act is not releuant at all. When the chain is not mmplete, falsity of the defence is no ground. to conuict the accused.."

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'?Criminal^{Appeal No.301of 2015dated 06.10.2023}

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In Timurch Maroti Ktrkan u. State of Maharashtra reported in (2006) 10 SCC 681, '.his Court uas considering a stmilar case o_f homicidal death in the confinds of the lhouse. The follouing obseruations are considered releuant in thd facts of the present case:

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"14. A an offlnce takes place inside the piuaca of a rcuse and in such circLtmstances u.there the ossailants haue all the oppotlunitg to plan and commit the offence at the time and in circumstances of their choice, it tuill be extremely^,Cfficult for the prosecution [o lead euidenc,? to establish the guilt of the a.Lcused if the slict principle of ctrcumstc'.ntial euidence, as noticed aboue; is insisled upon by the courts. A Judge d.oes not preside ouer a cimin,\l t':.al merelg to see that no iftnocent man is punished. A judge also prbsides to see that a guiLtg man does no, escape. Both are public duties.lsee Stirland L). Director oJ'Pubhc Prosecutians 11944 AC 315 : (1944) 2 All) ER 13 (HL)I - quoted with approual bg .Anjit PasaAat, J. in State of F njab a. Karnail Singh [(2OO3) 11 SCC 271 : 2OO4 SCC pn) 1351.) The laul does not enjoin a dutA on tLrc proseattion to lead euidence of such charclcter uhich ts almosl impossible to be led or at anA rate extremelg dtffanlt to be led. Thc dutlt on the prosecutiotl is to lead such euidence whir:h it is capable of leading, hauing regard to the facts and circumstances of the case. Here it [s necessarlJ to keep in mind Section 106 of the Euidence Act LDhich sotts that ruhe.n ang Jact is especiallg tuithin the knou-tledge^iof any person, the burden of prouing that, foct is upon him. lllustration (b) appcnded to this section throu.ts some light on the content and. st:ope of this prouision and it reads:

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"(b) A is charged uith trauelling on a railtuay uithout ticket. The burden of prouing that he had a ticket s on him."

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Where an offence like murder [s commitled in secrec,T inside a house, the initial burden to establish the case utould undoubtt:dlg be upon the prosecution, but the nature and amount of euidence tc' be led by it to establish the charge cannot be of the same degree as i; required in other cases of circumstantial euidence. The burden would be ol a comparatiuelg lighter character. In uieu of Section 1O6 of the Euidence Act there uill be a corresponding burden on the inmates of the house to giue a cogent explanation a:; to hotu the cime uas committed. The iruna.tes of the house cannot get au'ag bg simplg keeping quiet ond ofJeing no explanation on the supposed premise I that the burden to establish its c'ase lies entirely upon the proseantion aid there is no duty ctl ctll on an accused to offer anA explanation .

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xxx xxx )Ltx

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Where an accused is alleged to haue committed the m.urder of his uife and the prosecution succeeds in leading euidence to slaou) that shortlg before the cornmission oJ cime theA were seen together or the offence takes place- tn the duelling home where the husbond also normallg resided, it has been consistently held that if the acared does not ofJer anA explanation hoLu the uife receiued injuies or offers an explanation uthich

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I is found to belfalse, it'is a strong circumstance uhich ind-tcates that he is responsible fol commission of the cime. ..."

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The defen taken by the appellant is that the death was due I to epileptic ."rrl.e and the deceased falling down. The hyoid bone I cannot be frac,ired in case of either fall on the ground or due to travel. The inci.Lnt happened in the house of the appellant and the appellant failed io discharge his burden, as already discussed.

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There are no grounds to interfere with the conviction recorded I by the learned Sessioris I Judge. Since the appellant is on bail, the trial Court is directed to cause appearance of the appellant and send him to prlson to serve out the remaining period of sentence.

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