Andhra HC (Pre-Telangana)
Thota Panduranga Rao vs State Of A.P. on 4 March, 1998
Equivalent citations: 1998(3)ALD620, 1998(1)ALD(CRI)641, 1998(2)ALT(CRI)57
Author: J. Chelameswar
Bench: J. Chelameswar
ORDER Motilal B. Naik, J.
1. The sole accused in Sessions Case No. 152 of 1994 on the file of the Sessions Judge, Krishna District is the appellant. He was tried for the charges punishable under Sections 380, 354, 451 and 302 1PC. Out of the four charges, the appellant-accused was found guilty of the charges under Sections 354, 451 and 302 1PC and was sentenced to undergo rigorous imprisonment for two years on the first count, three years rigorous imprisonment on the second count and imprisonment for life and also to pay a fine of Rs. 5,0007- in default to suffer rigorous imprisonment for six months under the third count. The appellant-accused was, however, found not guilty of the charge under Section 380 IPC. As against the conviction and sentence as indicated above, the present appeal is preferred before us by the appellant-accused.
2. The gravemen of the charges against the accused is that on 11th February, 1993 around 2,00 p.m. the accused tresspassed into the house of the deceased Saladi Kamala Kumari (aged 30 years) and committed theft of Rs. 500/- and thereafter, he tried to outrage the modesty of said Kamala Kumari and when she refused to have sexual intercourse, the accused poured kerosene on her and set her fire with a match stick. On 18-2-1993 around 8-15 a.m., the deceased succumbed to her bum injuries at the Government Hospital, Machilipatnam.
3. The prosecution case in a nut-shell is that the accused and the material prosecution witnesses and the deceased are residents of Tarakaturu village. P.W.I is the mother of the deceased. P.W.2 is the younger sister of the deceased. P.W.3 is the neighbourer of the deceased. P.W.4 is the daughter of the deceased. P.W.5 is the son and P.W.7 is the husband of the deceased. According to the prosecution, the deceased and her husband (P.W.7) were living in Tarakaturu village by doing coolie work. P.W.7 purchased 60 cents of land from P.W.6 and got it registered in the names of P.Ws. 4 and 5.
4. On 11-2-1993 around 2-00 p.m. the accused entered the house of the deceased, closed the door and asked her to come with him. When she refused to oblige him, the accused caught hold of her and poured kerosene on her and lit her afire. When the deceased raised hue and cry, P.W.3 knocked the door and the door was opened. Then the accused poured water on the deceased. Then all the neighbourers came and shifted the deceased in the tractor of P.W.9 to the hospital of P.W.11.
5. P.W.11 - Dr. G. Padma of Gudlavalleti Nursing Home, Machilipamam examined the deceased and found 75% burns. She administered I.V. fluids. On 13-2-1993 the deceased was shifted to the Government Hospital, Machilipatnam. At 3-20 p.m. on the same day, the Civil Assistant Surgeon, Government Hospital, Machilipatnam (P.W.18) examined the deceased and found 95% burns. P.W.18 issued Ex.7 P-16-wound certificate.
6. On 13-2-1993, at about 3-50 p.m. P.W.12 - Head Constable of Chilakalapudi Police Station received Ex.P-10 - Hospital intimation, and he proceeded to the Hospital and recorded the statement of the deceased in the presence of the doctor. Ex.P-7 is the dying declaration recorded by P.W.12. P.W.19 - Sub-Inspector of Police, Gudur Police Station received the dying declaration (Ex.P-7) and registered a case in Crime No.5 of 1993 under Section 354 IPC and 307 IPC. Thereafter, he proceeded to the Government Hospital and recorded the statements of P.Ws. 1, 2, 7 and the deceased.
7. On the same day i.e. 13-2-1993, P.W. 15, Munsif Magistrate, Prathipadu, on a requisition from the Hospital, recorded the dying declaration of the deceased at 3-40 p.m. in the presence of P.W.18 and the dying declaration is marked as Ex.P-9.
8. On 14-2-1993, the Sub-Inspector of Police visited the scene of offence which is a thatched house and seized M.Os. 1 to 3 in the presence of P.W. 16, He also prepared a rough sketch of the scene of offence and got it photographed through P.W. 17. Ex.P17 is the rough sketch. He also examined P.Ws. 4, 5, 8, 9 and 10 and recorded their statements. Thereafter, he returned to Machilipatnam and also examined Dr. Padma (P.W. 11) and recorded her statement.
9. On 18-2-1993 at about 8-15 am, the deceased died in the Government Hospital, Machilipatnam. On receipt of the death intimation, the Sub-Inspector of Police (P.W.19) altered the section of law as 354 and 302 IPC. Ex.P-18 is the altered FIR.
10. P.W.20 - Inspector of Police, Pedana Circle took up the investigation and proceeded to the Government Hospital, Machilipatnam and held inquest over the dead body of the deceased between 2-00 p.m. and 4-00 p.m. in the presence of P.W.16. Ex.P.12 is the inquest report. During the inquest, the statements of P.Ws. 1, 3 and 7 were read over.
11. P.W.13 - the Medical Officer conducted autopsy over the dead body of the deceased and issued Ex.P-8 - Post mortem certificate. According to the doctor, the death was due to shock and extensive burns.
12. On .17-2-1993 the accused surrendered before the Court. After completing the investigation, P.W.20 filed the charge sheet.
13. The prosecution, in order to bring home the guilt of the accused has examined P.Ws. 1 to 20 and marked Exs.P- 1 to P19, besides M.Os. 1 to 3. P.Ws. 1 to 5, 7 to 9 did not support the prosecution case and they were treated hostile by the prosecution.
14. On the basis of the incriminating evidence available against the accused, particularly, the dying declarations Exs. P7 and P-9 recorded by P.Ws. 12 and 15 respectively, the accused was questioned under Section 313 of Cr.P.C. for which the accused pleaded not guilty. However, the Court below believing the dying declarations recorded by P.Ws. 12 and 15 in Exs. P-7 and P-9 respectively found the accused guilty of the charges under Sections 354, 451 and 302 of IPC and sentenced him as indicated above.
15. On behalf of the appellant-accused, learned senior Counsel Sri C. Padmanabha Reddy, made varied submissions by contending that when there are two dying declarations, the version of one dying declaration shall be consistent with the other. If there is any variation, Court shall be careful enough in accepting the dying declarations. Counsel further contended that the earliest oral declaration has been made by the deceased to the doctor P.W. 11 who initially examined the deceased. According to P.W. 11, the deceased has stated that her sarce caught fire which has resulted in multiple injuries to her. Counsel further submitted that the later dying declarations Exs. P-7 and P-9 recorded by P.W. 12 and P.W. 15 arc not consistent with the oral declaration made by the deceased to P.W.11. Learned Counsel has drawn our attention to the two dying declarations Exs. P-7 and P-9. Counsel contended that insofar as Ex.P-7 dying declaration which is recorded by P.W.12 is concerned, according to the statement of the deceased on 11-2-1993 her husband had gone to Buvvapaiem for agricultural work and she was alone in the house. Around 2-00 p.m. the accused who is a resident of the same village, entered the house of the deceased, closed the doors and demanded her to come along with him. When the deceased refused to oblige him, the accused caught hold of her and forcibly poured kerosene on her and lit fire. After the incident, she came running and one Bandla Venkata Satyanarayana (P.W.3) on hearing her cries knocked the door and saw her in flames. Counsel further contended that Ex.P-9 another dying declaration recorded by P.W. 15, the version in Ex.P-9 is that on 11th day, around 2-00 p.m. when there was nobody in her house, the accused entered and closed the doors, caught hold of her hands and insisted her to come out. When she refused, he threatened her and poured kerosene on her and set her a fire as a result of which she fell unconscious.
16. While referring to Exs. P-7 and P9 dying declarations, learned Counsel for the appellant contended that after completion of the evidence on behalf of the prosecution, the trial Court in order to examine the accused on the question of incriminating circumstances available against him, has framed question Nos. 7 and 9. Learned Counsel stated in the said question Nos. 7 and 9, it was not made known to the accused that on the date of incident, he came and poured kerosene on the refusal of the deceased to accede to his demand, on account of which she sustained injuries. Learned Counsel contended that the contents of Exs. P-7 and P-9, on which basis the Court below found him guilty, arc not made known to the accused when he was questioned by the Court below under Section 313 of Cr.P.C. and as such, the evidence with regard to Exs. P-7 and P-9 has to be eschewed. In support of his contention, learned senior Counsel has drawn our attention to a decision of the Supreme Court in reported in Sharad Birdhichand Sarda vs. State of Mahamshtra, . Learned senior Counsel has also contended that when all the material prosecution witnesses P.Ws. I to 5. 7 to 9 who are none else than the mother, husband and children, and P.W.3 neighbour, have turned hostile, the Court below ought to have rejected the case of the prosecution. Counsel, therefore, contended that the Court below erred in convicting and sentencing the appellant-accused though there is no independent corroborating evidence pointing towards the guilt of the accused. Counsel pleaded that the conviction and sentence imposed by the Court below on the accused, in the circumstances, are liable to be set aside.
17. Learned Public Prosecutor Smt, C. Sitseela Devi, on the contrary has submitted that though the prosecution has taken utmost precaution, a small mistake viz., not putting the contents of Exs. P-7 and P-9 to the accused in his examination under Section 313 Cr.P.C. cannot nullify the prosecution case. Learned Public Prosecutor has contended that the prosecution supplies the copies of all incriminating material available against the accused in advance and the accused had the opportunity of knowing the incriminating circumstances against him. That being the factual position, a small technical defect referred to above, cannot enure to the benefit of the accused. Learned Public Prosecutor has also drawn our attention, in support of her arguments, to the following decisions of the Supreme Court reported in Shivaji Sahebrao Bobade v. State of Maharashtra, ; Suresh Chandra Bahri vs. State of Bihar, ; and in Kanchy Komuramma v. Stale of A.P., 1996 SCC (Crl.) 31. Placing strong reliance on these decisions, learned Public Prosecutor contended that as held by the Supreme Court in the decision (3 cited supra), the relevancy of putting the incriminating evidence available against him, under Section 313 of Cr.P.C. is only to sec that the principles of Audi Alterem Partem are followed, that is to say, the accused is given a fair and reasonable opportunity to defend himself . Learned Public Prosecutor stated that even if the contents of Exs. P-7 and P-9 are put to the accused, the explanation forthcoming from the accused is nothing but 'denial' and therefore, pleaded that not putting the contents of Exs. P-7 and P-9 to the accused when he was questioned under Section 333 Cr.P.C. is not fetal to the case of the prosecution. Learned Public Prosecutor further contended that the evidence of P.Ws.12 and 15 who are Head Constable and Judicial Officer respectively, who are independent witnesses, cannot be disbelieved and the Court below has rightly believed their version and found the accused guilty of the charges framed against him and the well-considered decision of the Court below requires no interference.
18. Though the learned Counsel for the appellant-accused has made varied submissions, the most vital submission which has weighed for our consideration is on the question of not putting the incriminating material available against the accused under Exs. P-7 and P-9 to him in his examination under Section 313 of Cr.P.C. and the implication involved therein. Therefore, we proceed to decide this vital factor as this is a very crucial aspect on which the case of the prosecution rests or falls.
19. In the wake of the sustained efforts made by the learned senior Counsel for the appellant as well as the learned Public Prosecutor, we have carefully examined the decisions cited by both the learned Counsel, in support of their contentions.
20. In the decision cited (1) supra which has been relied upon by the learned senior Counsel for the appellant-accused, the Supreme Court has also referred to the decision (2) cited supra, which was relied upon by the learned Public Prosecutor. However, in another decision cited (3) supra, which has been relied upon by the Public Prosecutor, the Supreme Court had no occasion to deal with the decision (1) cited supra, as it has not been cited before the Supreme Court in that case. Therefore, the Supreme Court in the decision (3) cited supra, had no occasion to the principle laid down in the decision (1) cited supra that the incriminating evidence which has not been put to the accused during his examination under Section 313 of Cr.P.C. has to be invalidated and the accused cannot be convicted on such incriminating evidence.
21. It is not disputed by the learned Public Prosecutor that the incriminating evidence available against the accused as contained in Exs.P-7 and P-9 has not been put to the accused when he was examined under Section 313 of Cr.P.C. However, it is contended that some minor mistakes in the prosecution case cannot enure to the benefit of the accused. It is further contended that the incriminating evidence has been supplied to the accused in advance and the accused must have been aware of the incriminating material against him in the prosecution case and as such, this minor defect cannot vitiate the prosecution case, more so when the two dying declarations Exs. P-7 and P-9 are proved by the independent witnesses P.Ws. 12 and 15.
We are not inclined to accept the submissions of the learned Public Prosecutor for the simple reason that we are not on the question of deciding the authenticity of the dying declarations Exs. P-7 and P-9 but we are totally on a different question as to the implication of not putting the incriminating evidence in Exs. P-7 and P-9 to the accused in his examination under Section 313 Cr.P.C. As held by the Supreme Court in the decision (1) cited supra, we are inclined to hold that the incriminating evidence available against the accused in Exs.P-7 and P-9 and whose contents are not put to the accused when he was examined under Section 313 of Cr.P.C. has to be eschewed and the conviction of the accused based on such incriminating evidence has to be invalidated.
22. Interestingly, all the material witnesses of the prosecution. P.Ws. 1 to 5, 7 to 9 who are related to the deceased have turned hostile and the Court below has convicted and sentenced the accused only on the basis of Exs. P-7 and P-9 dying declarations of the deceased recorded by P.Ws. 12 and 15. As already held, when the contents of Exs.P-7 and P-9 are not put to the accused when he was examined under Section 313 of Cr.P.C. before the Court below, conviction and sentence of the accused only on the basis of Exs. P-7 and P-9 cannot be sustained in the absence of any other corroborating evidence to prove the guilt of the accused. Accordingly, we set aside the conviction and sentence imposed on the accused by the Court below. The accused shall be set at liberty forthwith if not required in any other cause. The fine amount of Rs. 5000/- imposed by the Court below, if already paid by the appellant-accused, shall be refunded to him.
23. In the result, this Criminal Appeal is allowed.