Andhra Pradesh High Court - Amravati
Thuraka Mallikarjuna, vs The State Of Ap Rep By Its Pp Hyd., on 20 November, 2019
Author: C.Praveen Kumar
Bench: C.Praveen Kumar, J. Uma Devi
THE HONOURABLE SRI JUSTICE C.PRAVEEN KUMAR
AND
THE HONOURABLE MS JUSTICE J.UMA DEVI
CRIMINAL APPEAL No.1307 of 2012
JUDGMENT:- (Per Hon'ble Sri Justice C.Praveen Kumar) The sole accused in Sessions Case No.330 of 2009 on the file of the learned I Additional District and Sessions Judge, SPSR Nellore District, was tried for the offences punishable under Sections 498-A and 302 I.P.C. for subjecting one Thuraka Prameela (hereinafter, referred to as "the deceased") to cruelty both physically and mentally by suspecting her fidelity prior to 23.06.2009 at Bommaram Vaddipalem Agraharam Village, Anantha Sagaram Mandal, Nellore District and for committing the murder of the deceased on 23.06.2009 intentionally by pouring kerosene and setting fire on her. Vide judgment, dated 19.12.2012, the learned Sessions Judge convicted the accused for the offence punishable under Section 498-A I.P.C. and sentenced him to suffer rigorous imprisonment for a period of one year and to pay a fine of Rs.200/-, in default, to suffer simple imprisonment for a period of one month; and also convicted the accused for the offence punishable under Section 302 I.P.C. and sentenced him to suffer rigorous imprisonment for life and to pay a fine of Rs.300/-, in default, to suffer simple imprisonment for a period of one month. Aggrieved by the same, the present appeal came to be filed by the accused.
2. Briefly stated, the facts from the evidence of prosecution witnesses are as under: -
2 CPK, J & JUD, J Crl.A.No.1307 of 2012 P.W.1 is the mother of the deceased whereas P.W.2 is the father of the deceased. P.Ws.3 and 4 are the brothers of the deceased. P.W.5 is the son of the deceased. P.Ws.6, 7 and 8 are the neighbours. All these witnesses did not support the prosecution case and they were treated hostile by the prosecution.
Since all the witnesses turned hostile, it would be necessary to mention a few facts from the charge sheet to understand the case.
3. The record shows that the accused is the husband of the deceased. The marriage of the deceased with the accused was performed seven years prior to the incident and out of wedlock, they were blessed with two children. It is said that the accused used to harass the deceased physically and mentally suspecting her fidelity. The parents and relatives of the deceased, who witnessed the accused beating the deceased, warned him several times but there was no change in his attitude. About two months prior to the incident, the accused shifted his family to Raja Street, Kalyani Nagar, Nellore and was working as a labourer in loading and unloading of blue metal. It is said that the accused did not mend his attitude and continued to harass the deceased suspecting her fidelity. In pursuance of his suspicion over the deceased, the accused decided to kill his wife. The averments in the charge sheet show that on 23.06.2009, after watching television in the house of P.W.6, the accused returned home at 10:30 P.M. and picked up a quarrel with the deceased unnecessarily. In the course of the said quarrel, he picked up a kerosene can lying near by, poured the same over the body of the 3 CPK, J & JUD, J Crl.A.No.1307 of 2012 deceased and set her ablaze as a result of which, the deceased was engulfed in flames. It is to be noted here that the facts stated above are those as referred to in the charge sheet. On 23.06.2009, P.W.15 - Head Constable of II Town Police Station, Nellore Town received hospital intimation at 11:30 P.M. about the admission of one Thuraka Prameela in the hospital with burn injuries. Ex.P-18 is the said intimation. Immediately, he went to MSB ward where Prameela was undergoing treatment and recorded her statement. Ex.P-19 is the said statement.
P.W.16, the then Special Mobile Magistrate, Nellore, also received requisition from the Government Hospital at 11:30 P.M. on 23.06.2009 for recording the dying declaration of the deceased. He proceeded to the hospital, identified the patient with the help of duty doctor and started recording the dying declaration. This was between 11:30 P.M. and 11:45 P.M. He put some preliminary questions to ascertain the mental capacity of the injured and after being satisfied with the mental condition and after obtaining the certificate from the doctor that the patient is conscious and in a fit state of mind to give statement, recorded the statement. Ex.P-21 is the dying declaration recorded by the Magistrate.
On the intervening night of 23/24.06.2009, at 00:30 hours, P.W.17 - Sub Inspector of Police, IV Town Police Station, Nellore received hospital intimation as well as the statement of the deceased - Ex.P-5. Basing on Exs.P-5 and P-8, he registered a case in Crime No.122 of 2009 under Sections 326, 498-A and 307 I.P.C. Ex.P-22 is the F.I.R. He went to the Government Hospital, Nellore, examined the injured and recorded her statement in 4 CPK, J & JUD, J Crl.A.No.1307 of 2012 Part-II Case Diary. He also examined P.Ws.3, 4 and 8 and recorded their statements in Part-II Case Diary. Then, he proceeded to the scene of offence and as it was late in night, he did not examine the scene of offence. While returning to police station, he noticed accused near G.V.R.R. College Mini Bye-pass road and arrested him at 03:15 hours on 24.06.2009 and recorded his confessional statement in the presence of P.W.10 and another and brought him to the police station. They noticed injuries on both hands of the accused. Immediately, he was sent to the hospital for medical examination. After medical examination, the accused was brought to the police station. On the next day, he proceeded to the scene of offence and prepared a rough sketch under Ex.P-23. He also got prepared an observation report of the scene under Ex.P-12. At the time of preparing the observation report, he seized broken pieces of clay bangles, burnt pieces of match sticks, match box, burnt blanket, an empty kerosene can etc. P.W.12 is the doctor, who examined the accused and issued Ex.P-15 - certificate.
On 11.08.2009, ie., nearly two months after the incident, the deceased died while undergoing treatment in Jaya Bharath Hospital, Nellore. P.W.13 - Doctor, who was treating her, intimated the same to the concerned police under Ex.P-16. Basing on the said intimation, P.W.18 - Sub Inspector of Police, V Town Police Station, Nellore altered the section of law from Sections 326, 307 and 498-A I.P.C. to Sections 302 and 498-A I.P.C. and issued Ex.P-24 - altered F.I.R.
5 CPK, J & JUD, J Crl.A.No.1307 of 2012 P.W.19 - Inspector of Police took up further investigation into the matter on receipt of the altered F.I.R., proceeded to the hospital and conducted inquest over the dead body of the deceased. Ex.P-14 is the inquest report. During inquest, he examined P.Ws.1 to 4, 6, 7 and V.Chenchamma (L.W.5) and Veerula Venkata Ramanamma (L.W.6). After completion of inquest proceedings, he sent the body for post mortem examination.
P.W.14, the then Civil Assistant Surgeon in DSR Government Headquarters Hospital, Nellore, conducted post mortem over the dead body of the deceased on 12.08.2009 between 12:15 P.M. and 2:15 P.M. and issued Ex.P-17 - post mortem certificate. P.W.19 returned back to the scene of offence and verified the rough sketch and the panchanama prepared by his predecessor. After receipt of necessary documents and completion of investigation, a charge sheet came to be filed, which was taken on file as P.R.C.No.17 of 2009 on the file of the learned V Additional Judicial Magistrate of First Class, Nellore. On appearance, copies of the documents were supplied to him as required under Section 207 Cr.P.C.
4. Since the offence punishable under Section 302 I.P.C. is exclusively triable by a Court of Sessions, the matter was committed to the Court of the Sessions at Nellore under Section 209 Cr.P.C. and same was made over to the Court of the learned I Additional District and Sessions Judge, SPSR Nellore District for trial and disposal in accordance with law.
5. Basing on the material available on record, charges under Sections 498-A and 302 I.P.C. came to be framed against the 6 CPK, J & JUD, J Crl.A.No.1307 of 2012 accused, read over and explained to him in Telugu for which, he pleaded not guilty and claimed to be tried.
6. To substantiate its case, the prosecution examined P.Ws.1 to 19 and got marked Exs.P-1 to P-25 and exhibited M.Os.1 to 7.
7. After completion of the entire prosecution evidence, the accused was examined under Section 313 Cr.P.C., with reference to the incriminating circumstances appearing against him in the evidence of the prosecution witnesses to which he denied. No oral or documentary evidence was adduced on his behalf.
8. Taking into consideration the two dying declarations coupled with the other evidence available on record, more particularly, the evidence of the doctor and the Investigating Officer, the learned Sessions Judge convicted the accused as stated supra. Challenging the same, the present appeal came to be filed by the accused.
9. Learned counsel for the appellant/accused would contend that there is absolutely no legal evidence to connect the accused with the crime. According to him, all the material witnesses did not support the prosecution case and were treated hostile by the prosecution. Insofar as the two dying declarations recorded by the constable and the Magistrate are concerned, he pleads that both of them are inconsistent with each other. Further, the dying declaration recorded by the Magistrate is not in accordance with the Criminal Rules of Practice, as there is any amount of doubt with regard to the endorsement made by the doctor with regard to the mental state of the injured.
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10. On the other hand, learned Public Prosecutor opposed the same contending that even if one dying declaration is disbelieved, the Court can rely upon the other dying declaration recorded by the constable. He pleads that even if the dying declaration recorded by the Head Constable is disbelieved or found to be incorrect or that it came to be recorded with an ill motive, one can safely rely upon the dying declaration recorded by the Magistrate, who has no enmity or ill-will against the accused. In view of the same, he pleads that the findings of the trial Court warrants no interference.
11. The short point that arises for consideration is:
"Whether the prosecution is able to bring home the guilt of the accused for the offences punishable under Sections 498-A and 302 I.P.C. beyond all reasonable doubt?"
12. POINT:-
As seen from the record, P.Ws.1 to 8 did not support the prosecution case. The parents, brothers and the son of the deceased resiled from their earlier statements. Therefore, the only material available on record is the two dying declarations recorded by the Head Constable and the Magistrate. P.W.15 recorded the dying declaration at 11:30 P.M. on 23.06.2011 under Ex.P-19. According to him, on that day, he received hospital intimation about the admission of the injured in the hospital. Immediately, he proceeded to MSB Ward where the injured was taking treatment and recorded the statement of the injured, wherein she stated that on that day, at about 10:30 P.M., her husband returned home after watching television and started abusing her in a loud voice 8 CPK, J & JUD, J Crl.A.No.1307 of 2012 suspecting her fidelity. She got down from the cot and started verbal duel. Thereafter, the accused picked up a kerosene tin available in the house, poured the same on her, lit a match stick and threw on her, as a result of which, she sustained burn injuries on her face, both ears, both hands, neck etc. After recording the statement, P.W.9, the doctor, is said to have made an endorsement showing that the patient is conscious, coherent and answering the questions.
13. Thereafter, P.W.16 - Special Mobile Magistrate, Nellore proceeded to the hospital on receipt of requisition and recorded the dying declaration of the injured. Exs.P-18 and P-20 are the hospital intimations which indicate that the deceased sustained burn injuries in the hands of her husband. She put some preliminary questions to ascertain the mental condition of the deceased to understand and on being satisfied, recorded the dying declaration. Ex.P-21 is the statement recorded by her. A reading of the said dying declaration shows that the version given by her before the Magistrate is at variance with regard to the genesis of the incident itself. According to her, while she was sleeping, her husband came and asked her to move the cot. He started quarrelling with her and started using bad words. It is said that the accused always quarrels with her and that she would tell to her brother and get the accused beaten. Because of this, the accused is said to have poured kerosene on her and threw a match stick on her. It is also to be noted here that the endorsement of the doctor with regard to the mental condition as spoken to by her indicate that though she gave a statement in Telugu but the learned Magistrate recorded the same in English. She further 9 CPK, J & JUD, J Crl.A.No.1307 of 2012 alleges that the rubber stamp put on the dying declaration showing the mental condition was not affixed by her. Though there is a discrepenacy with regard to the dying declarations with regard to the genesis of the attack, as held by the Apex Court, even if anyone of the dying declarations inspires confidence in the mind of the Court, the same can be acted upon.
14. Learned counsel for the appellant mainly argues as to the nature of offence, for the reason that even if both the dying declarations are taken into account, there was a quarrel preceding the incident and during the course of the said incident, he poured kerosene and set her on fire. Immediately, thereafter, the accused attempted to put off the flames, which is evident from the evidence of P.W.12 - Doctor, who treated the accused on the very same day at 5:00 P.M. A perusal of the evidence of the Investigating Officer coupled with the evidence of P.W.12 - Doctor shows that after receipt of the statement of the deceased, coupled with the requisition, he registered a case and thereafter, proceeded to the hospital. From the hospital, the Investigating Officer proceeded to the house of the injured to see the scene of offence and as it was late in the night, he did not examine the scene of offence. He noticed the accused near G.V.R.R. College Mini Bye-pass road and arrested him at 03-15 hours on 24.06.2009 and recorded his confessional statement. Immediately thereafter, he was taken to the headquarters hospital where P.W.12 - Civil Assistant Surgeon examined the accused and found burn injuries on both the hands. The four fingers of both the hands except thumb were burnt. From the above, it would be clear that these injuries were not brought into existence for creating a defence. The incident in issue 10 CPK, J & JUD, J Crl.A.No.1307 of 2012 occurred at 10:30 P.M. on 23.06.2009 and within few hours, the accused was apprehended with burn injuries and thereafter, he was immediately sent to Government Hospital. Therefore, the argument of the learned counsel for the appellant that possibility of accused trying to save his wife after seeing the flames cannot be ruled out though the two dying declarations are silent on this aspect but the confession, though not admissible in evidence, indicate the effort made by him to save his wife.
15. The evidence on record also show that the deceased survived for nearly 50 days before her death. The cause of death as per the doctor was due to septicemia from burns. Though a suggestion was put to the doctor, who conducted post mortem examination, that the deceased died due to lack of proper medical attention and treatment, he suggests that initially, the deceased was admitted in Government Hospital and later, shifted to a private hospital.
16. Having regard to all the circumstances referred above and taking into consideration the manner in which the incident took place, more particularly, the wording and altercation in between the husband and wife and in the course of which, the accused took a kerosene tin and poured on her, and conduct of the accused in trying to put off the flames, leading to burn injuries, show that the accused never had an intention to kill the deceased. If really he had an intention to kill, as argued by the learned Public Prosecutor, the accused would not have made any effort to rescue the deceased. Therefore, it cannot be said that the accused had an intention to kill the deceased, but definitely, it can be said that he had knowledge that such act would cause the death of the 11 CPK, J & JUD, J Crl.A.No.1307 of 2012 deceased. Therefore, the conviction of the accused is altered from Section 302 I.P.C. to Section 304 Part - II I.P.C. while setting aside the conviction of the accused under Section 498-A I.P.C. in the absence of any evidence with regard to the act of cruelty or for payment of money or property.
17. In the result, the conviction and sentence recorded by the learned I Additional District and Sessions Judge, SPSR Nellore District vide judgment, dated 19.12.2012, in Sessions Case No.330 of 2009 against the appellant/accused for the offences punishable under Sections 498-A and 302 I.P.C. are set aside. However, the appellant/accused is found guilty of the offence punishable under Section 304 Part - II I.P.C., and accordingly, he is convicted and sentenced to undergo rigorous imprisonment for a period of five (05) years and to pay fine of Rs.300/-, in default to suffer simple imprisonment for a period of one month. The period of remand underwent by him during investigation, trial and after conviction shall be given set off under Section 428 I.P.C.
18. Accordingly, the Criminal Appeal is partly allowed.
Miscellaneous petitions pending, if any, in this Criminal Appeal shall stand closed.
_______________________________ JUSTICE C.PRAVEEN KUMAR _______________________ JUSTICE J.UMA DEVI Date : 21.11.2019 AMD 12 CPK, J & JUD, J Crl.A.No.1307 of 2012 100 THE HONOURABLE SRI JUSTICE C.PRAVEEN KUMAR AND THE HONOURABLE MS JUSTICE J.UMA DEVI CRIMINAL APPEAL No.1307 of 2012 Date : 21.11.2019 AMD