Andhra HC (Pre-Telangana)
Ponnala Jaipal S/O. P.Narasimha vs State Of A.P., Rep. By Public ... on 1 April, 2014
Bench: L. Narasimha Reddy, M.S.K.Jaiswal
HON'BLE SRI JUSTICE L. NARASIMHA REDDY AND HON'BLE SRI JUSTICE M.S.K.JAISWAL CRIMINAL APPEAL No.199 OF 2010 01-04-2014 Ponnala Jaipal S/o. P.Narasimha Appellant State of A.P., rep. By Public Prosecutor, High Court, Hyderabad Respondent Counsel for the Appellant: Smt. D. Lalitha Counsel for the Respondent : Public Prosecutor <Gist: >Head Note: ?Cases referred: NIL HONOURABLE SRI JUSTICE L. NARASIMHA REDDY AND HONOURABLE SRI JUSTICE M.S.K. JAISWAL CRIMINAL APPEAL No.199 of 2010 JUDGMENT:
(Per Honble Sri Justice L. Narasimha Reddy) The sole accused in S.C. No.166 of 2009 on the file of the II Additional Chief Metropolitan Magistrate, Hyderabad, filed this appeal feeling aggrieved by the judgment, dated 06.08.2009 rendered therein. He was tried for the offence of committing the murder of his wife, by name, Swaroopa, in the afternoon of 11.01.2009. The trial Court found the accused guilty of the offence alleged against him and sentenced him to undergo imprisonment for life and to pay fine of Rs.1,000/-, in default to undergo simple imprisonment for 15 days.
2. The facts, as presented by the prosecution, are that the deceased was married to the accused 22 years prior to the date of incident and out of their wedlock, they had three daughters and one son. The accused is said to be the Carpenter by profession. It was alleged that he used to pick up quarrel with his wife on trivial issues, including the one relating to cooking of the food.
3. On 11.01.2009 the accused is said to have picked up quarrel with his wife in the morning and in protest, she left for the house of her parents. She is said to have returned at 4.00 p.m. on that day, and once again the accused picked up quarrel with her, poured kerosene, set her on fire, and pushed out of the house. PW-2, the neighbour, is said to have noticed the deceased with flames and immediately he extinguished the fire by pouring water. He is also said to have given information about the same to PW-3, the daughter of the accused and the deceased, the mother of the deceased (not examined); and the mother and daughter of the deceased admitted her in the Osmania General Hospital at 9.30 p.m. PW-6, the Investigating Officer, rushed to the hospital on receiving the information about the incident and recorded the statement from the deceased, marked as Ex.P-5 and registered a crime under Section 307 IPC against the accused. While undergoing treatment, the deceased is succumbed to injuries on 15.01.2009. On the next day, PW-1, the father of the deceased, submitted a complaint alleging the said offence. The provision in the FIR was altered and the investigation was taken up. PW-6 filed the charge sheet against the accused alleging offence punishable under Section 302 IPC. The trial Court framed charges of the same and on the accused pleading not guilty, conducted the trial.
4. The prosecution examined PWs.1 to 8 and filed Exs.P-1 to P-8. MOs.1 to 3 were taken on record. No evidence was adduced by the defence. The trial Court convicted and sentenced the accused through its judgment under appeal.
5. Smt. D. Lalitha, learned counsel for the appellant, submits that the evidence on record is full of inconsistencies and though PW-2 is cited as an eye witness, the interested nature of that witness was established beyond any pale of doubt. She contends that the evidence of PW-3, the mother of the deceased, is a substantial improvement on several aspects and she stated many things, for the first time, in the Court. Learned counsel contends that the trail Court mainly relied upon Ex.P-5, the dying declaration, notwithstanding the fact that it suffered from several infirmities. She submits that the incident took place right in the city of Hyderabad and the patient was alive for about four days and still PW-6 did not choose to give intimation to the jurisdictional Magistrate for recording the dying declaration. She submits that PW-6 admitted in his cross examination that he did not get certification from the Medical Officer about the fitness of the deceased to make a statement. Other grounds are also urged.
6. Learned Public Prosecutor, on the other hand, submits that PW-2 admittedly is an immediate neighbour of the accused and there is nothing to discredit his evidence. He contends that mere fact that a later point of time, the son of PW-2 was married to the daughter of the deceased and the accused, is not a ground to discredit the evidence of the witness. Learned Public Prosecutor further submits that Ex.P-5 was recorded from the deceased immediately after the occurrence and the fact that the person was alive till 15.01.2009 discloses that she was otherwise fit to make a statement.
7. The marriage between the accused and the deceased took place 22 years prior to the incident and they were blessed with three children, who were fairly grown up by 2009. The allegation against the accused is that he used to quarrel with the deceased, and on 11.01.2009, he quarreled with her in the morning and though she went to the house of her parents, she came back by 4.00 p.m. The accused is said to have once again quarreled with the deceased, poured kerosene, set her ablaze, and pushed her out of the house.
8. PW-3, the daughter of the deceased, and the mother of the deceased are said to have received the information from PW-2 and admitted the deceased in the Osmania General Hospital. The Sub- Inspector of Police PW-6 reached the Hospital and recorded the statement - Ex.P-5.
9. The complaint about the incident, being Ex.P-1, was submitted by the father of the deceased - PW-1 on 16.01.2009. The purport of Exs.P-1 and P-5 is that the accused used to quarrel with the deceased and that on 11.01.2009 he poured kerosene and set her ablaze. There exists an eye witness for the incident, according to the prosecution. PW-2 is said to be a neighbour of the accused and the deceased and he is said to have noticed the accused in flames at 4.15 p.m. on 11.01.2009. It was also stated that he put off the flames by pouring water and thereafter, went to the house of the parents of the deceased and informed them. The statement of this witness was said to have been recorded by the police, on the evening of the same day.
10. In the cross examination, it was elicited from PW-2 that there are other immediate neighbours to the house of the accused and the deceased by name, B. Vittal and V. Babu Rao and that the house of PW-2 is separated from the house of the accused and the deceased, by a road. He admitted that the son of his wife through her first husband, by name, Kimmi, was in love with the second daughter of the deceased, by name, Divya, and that the same was not to the liking of the accused. He also admitted that the boy and the girl married after the death of Swaroopa. It is important to note that the age of PW-2 is mentioned as 23 years whereas his wife had a son of marriageable age. It means that he married a woman, who is almost of the age of his mother. Unfortunately, such tendencies are increasing and it is these people who appear as witnesses, readily before the Courts.
11. PW-3 is the daughter of the deceased and the accused. She is of the same age as PW-2 and she left her parents two years before the incident. A perusal of the evidence of this witness discloses that there are several improvements. For instance, she stated that when she reached the house, on receiving the information about the death of her mother, she saw the accused in the house itself and when questioned, her mother has pointed out towards him. The presence of the accused in the house was not spoken to by PW-2. Several omissions and improvements in the evidence of PW-3 were pointed out. PW-1 is the father of the deceased. He did not figure anywhere in the picture till he submitted complaint on 16.01.2009. In case, himself and his wife were of the view that the accused caused the burn injuries to their daughter, they were expected to submit a complaint immediately. It took nearly five days, for him to submit the complaint. He is not an eye witness to the occurrence and the evidence is not of much importance.
12. The discussion undertaken thus far would disclose that there is no reliable first hand account of the incident and one has to fall back upon the circumstantial evidence.
13. PW-6, the investigating officer, is said to have recorded Ex.P-5 immediately after receiving the information about the incident at 8.00 p.m. Not only the hospital is located in Hyderabd, but also the incident has taken place in the city itself. A mere phone call would have been sufficient to ensure the presence of any judicial Magistrate for recording the statement of the injured person. PW-6, however, did not think of the same. He played the role of a Magistrate and proceeded to record the statement. In the cross examination, he admitted that the mother of the deceased was present at the time of recording of the statement and that he did not obtain any certification from the Medical Officer about the fitness of the patient to depose. It is important to note that PW-3 - daughter of the deceased, stated in her chief examination that when she went to the house on receiving information, her mother was not in a position to speak and she was only making gestures. Nearly four hours intervened between the incident and the recording of the statement. The very fact that the person died due to injuries discloses that the condition was critical and deteriorating. The inescapable conclusion is that the contents of Ex.P-5 are nothing but words of PW-6, put in the mouth of the deceased.
14. A dying declaration, no doubt, is given utmost importance in cases pertaining to death of persons. However, to be relied upon by the Court, the dying declaration must not only accord with the form, and also the contents thereof, must command acceptability. In the instant case, Ex.P-5 is procedurally defective and the contents thereof are patently unbelievable.
15. For the foregoing reasons, we allow the appeal and set aside the conviction and sentence recorded against the accused.
16. In the result, the Criminal Appeal is allowed. The conviction and sentence ordered in S.C.No.166 of 2009 on the file of the II Additional Metropolitan Sessions Judge, Hyderabad, dated 06.08.2009, against the appellant-accused, are set aside. The appellant-accused shall be set at liberty forthwith, unless his detention is needed in any other case. The fine amount, if any, paid by the appellant-accused shall be refunded to him.
____________________ L.NARASIMHA REDDY, J __________________ M.S.K.JAISWAL, J April 01, 2014.