Decided on December 03,1992



M.N.Rao. J - (1.)A-1 to A-3 in S.C.No. 172 of 1990 on the file of Sessions Judge's Court, Mahabubnagar, are the appellants before us. They were charged for an offence under Section 302 read with 34 of IPC for causing the death of one Seelamma, W/o late Thimmappa, R/o. Gadwal on 29-3-1990, by pressing a pillow on her mouth and nose. The deceased Seelamma was a resident of Gantaveedhi of Gadwal town in Mahabubnagar district. Her husband died about sixteen years prior to the incident. She was issueless. One year prior to her death, she fell ill resulting in an operation. As there was nobody to look after her, she brought A-2 from Raichur to look after her. She celebrated the marriage of A-2 with A-1, who was said to be her adopted son. A-3 is the father of A-2. For about two months after the marriage, A-1 and A-2 lived amicably with the deceased at her house. The deceased owned landed property of about fifteen acres and also a residential house. It is alleged that A-1 and A-2 started quarreling with the deceased, demanding that she should settle all her properties in their names, for which she was not agreeable. In that connection, a Panchayat was held and the mediators advised A-1 and A-2 to cultivate thirteen acres of land belonging to the deceased and pay her annually Rs. 1,400/-. But A-1 and A-2 were not agreeable to the settlement, but continued to live with the deceased. On the evening of 29-3-1990, P.W.1 who is the nephew of the deceased was informed that his aunt was found dead in her house. He rushed to that place and saw the dead body of the deceased in her house. At that time A-1 to A-3 also were there. P.W. 1 and A-1 to A-3 brought the dead body from the house and kept it outside. P.W.2, a resident of Gadwal, a contractor by profession, was the paramour of the -deceased. He was informed about the death of the deceased on 29-3-1990 at the Roads and Buildings Office by an Attender and he immediately rushed to the house and found the body of the deceased in the kitchen of the house. At that time, A-1 to A-3 also were there. Ex.P-1 was the complaint given by P.W.1 to the Police, which was received by the Sub-Inspector of Police, Gadwal town, P.W.6 at about 9.00 p.m. He registered the same as Crime No. 27 of 1990 under Section 174, Cr.P.C. and rushed immediately to the house of the deceased, reaching there at about 10.00 p.m. As it was night time, he posted a guard at the house of the deceased. On the next day i.e., on 30-3-1990 after securing the presence of mediators viz., P. W.4 and others, the Sub-Inspector conducted Inquest over the dead body. Ex.P-3 is the Inquest report. During the Inquest, he examined the dead body and sent it for post-mortem examination to the Government Hospital, Gadwal. P.W.3 Dr.M.A. Rasheed, Civil Assistant Surgeon, Government Hospital, Gadwal conducted autopsy over the dead body at 11.40 a.m. and found eight external and internal injuries. He expressed the opinion that the deceased might have dead due to asphyxia because of smothering within eighteen house prior to the post-mortem examination. Ex.P-2 is the post-mortem examination certificate. After receiving the post-mortem Certificate, the Sub-Inspector of Police, P.W.6 altered the section of Law from Section 174, Cr.P.C. to Section 302 of IPC and issued express first information report and thereafter further investigation was taken up by P.W.7, Inspector of Police. On 19-4-1990, A-1 and A-3 were arrested at the Railway Station, Gadwal. On the information furnished by A-1 as to the place where he had thrown the pillow with which, the alleged act of smothering was done, the Inspector accompanied A-1 to the cattle shed from where A-1 picked up a pillow, M.O.1 which was seized under the Mahazar Ex.P-5.
(2.)This in brief was the prosecution story. The learned Sessions Judge, after observing that in a case of this nature, there could not be any eye-witnesses, expressed the opinion that it was within the exclusive knowledge of the accused who were residing in the house of the deceased as to how the deceased died. In that view, invoking the provisions of Section 106 of Evidence Act, the learned Judge held that accused failed to prove the manner in which the death of the deceased was caused which was exclusively within the knoweldge of the accused. He therefore found the accused guilty of the charge with which they were tried and convicted each of them to undergo imprisonment for life under Section 302 read with Section 34 of IPC.
(3.)Sri C. Padmanabha Reddy, Counsel for the appellants contends that the view taken by the learned Sessions Judge was erroneous. The presence of A-1 to A-3 at the house of the deceased when P.Ws. 1 and 2 went there would not by itself be a circumstance warranting the assumption that the death of the deceased was within the exclusive knowledge of the accused and the failure to explain the same must result in an adverse inference being drawn. A-3, father of A-2, even according to the prosecution case, was not residing along with A-1 and A-2 in the house of the deceased. As regards A-1 and A-2, it cannot be said that law raises presumption that they should explain how the death has occurred and their failure to do so must result in an adverse inference being drawn about their complicity in the crime. The learned Counsel also points out various discrepancies in the evidence of the prosecution witnesses, the slippery nature of the motive sought to be projected by the prosecution and the infirmities in regard to the recoveries effected, inference in regard to the recovery of M.O.I and the inferences flowing therefrom.

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