Andhra HC (Pre-Telangana)
Rachamalla Srinu S/O. Nageswara Rao @ ... vs State Of A.P., Rep. By Public ... on 5 February, 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.1107 OF 2009
05-02-2014
Rachamalla Srinu S/o. Nageswara Rao @ NagaiahAppellant
State of A.P., rep. By Public Prosecutor, High Court, Hyderabad Respondent
Counsel for the Appellant: Smt. C.Vasundhara Reddy
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.1107 OF 2009
JUDGMENT:(Per Honble Sri Justice L. Narasimha Reddy) The sole accused in S.C. No.40 of 2006 on the file of the Special Judge for the trial of Cases under S.Cs. and S.Ts. (POA) Act, West Godavari at Eluru, is the appellant. He was tried for the offences under Sections 302 IPC, and Sections 3(2)(v) and 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, (for short the Act), for causing death of Parla Gangaratnam, on the early hours of 23.07.2005. The trial Court acquitted the accused of the offence under the provisions of the Act and was convicted him for the offence under Section 302 IPC, and sentenced to undergo imprisonment for life and to pay a fine of Rs.1,000/- and in default to undergo simple imprisonment for six months.
2. The case presented by the prosecution, before the trial Court was as under:
The deceased Gangaratnam was married to one Mr. Parla Raju and that the couple were blessed with two female children, who died at the infance. Two years prior to the date of incident, Gangaratnam is said to have been separated from her husband Raju and started living with her mother PW-1 and sister PW-2 at Pasalapudi Village of West Godavari District. She said to have developed intimacy with the accused.
3. Late in the night of 22.07.2005, the accused said to have come to the house of PW-1 where Gangaratnam was also residing, and the accused and that lady slept in one room, whereas PWs.1 and 2 slept in the neighbouring room. At about 2.00 p.m., PWs.1 and 2 are said to have heard the cries of Gangaratnam and when they went to her room, they were informed by Gangaratnam that the accused has quarrelled with her on the ground that she was having intimacy with another person and so observing, he poured kerosene upon her from a bottle, which was being used as lamp, and set her on fire with matches. The accused is said to have ran away on seeing PWs.1 and 2. It was also mentioned that Gangaratnam herself poured water upon the flames and on account of non-availability of transport, she was taken to the Government Hospital at Tanuku, only at about 8.00 a.m. on 23.07.2005.
4. The Station House Officer, Undrajavaram, recorded the statement of Gangaratnam at about 12.00 Noon and registered Crime No.62 of 2005. On the intimation being given to the Judicial Magistrate of First Class, Tanuku, the dying declaration, marked as Ex.P.5, was recorded at 2.45 p.m. Thereafter, the investigation was undertaken even while the victim was under treatment. On 01.08.2005 Gangaratnam succumbed to burn injuries. Thereupon, the Sections in the FIR were altered and offence under Section 302 IPC and other provisions of the Act are added. Post mortem was conducted and further investigation conducted. Thereafter, charge sheet was filed. Taking the same into account, the trial Court framed the following charges against the accused:
FIRSTLY that you on 23-07-2005 at about 02.00 PM in the house of Bathu @ Parla Gangaratnam in SC colony of Pasalapudi village committed murder intentionally causing the death of Bathu @ Parla Gangaratnam knowing that she belongs to SC by pouring kerosene on her and set fire to her with a lightened match stick and that you thereby committed an offence punishable U/Sec.302 I.P.C. and within my cognisance.
SECONDLY that you not being a member of SC or ST on the same date, time and place as specified in charge No.1 above, committed murder intentionally causing the death of Bathu @ Parla Gangaratnam who belongs to SC which offence is punishable with death or imprisonment for life on the ground that Bathyu @ Parla Gangaratnam is a member of SC and that you thereby committed an offence punishable U/Sec.3(2)(v) of SCs and STs (POA) Act and within my cognisance.
THIRDLY that you not being a member of Schedule Caste or Schedule Tribe on the same date, time and place, as specified in charge No.1 above, intentionally insulted Bathu @ Parla Gangaratnam who belongs to SC knowing that she belongs to SC by saying that Bathu @ Parla Gangaratham having illicit intimacy with others within public view and that you thereby committed an offence punishable U/Sec.3 (1) (x) of SCs and STs (POA) Act.
FOURTHLY AND LASTLY that you not being a member of Schedule Caste or Schedule Tribe on the same date, time and place, as specified in charge No.1 above, in a position to dominate the will of Bathu @ Parla Gangaratnam who belongs to SC uses your position and exploited Bathu @ Parla Ganagaratnam sexually to which she would not otherwise agreed and that you thereby committed an offence punishable U/Sec.3 (1) (xii) of SCs and STs (POA) Act.
5. Before the trial Court, PWs.1 to 6 were examined and Exs.P-1 to P-19 were filed. On behalf of the defence, DWs.1 and 2 were examined Exs.D-1 to D-4 in the form of contradictions were cited. MOs 1 to 5 were also taken on record. The accused was convicted for the offence under Section 302 IPC and punishment, as indicated above, was imposed.
6. Smt. C. Vasundhara Reddy, learned counsel for the appellant, submits that as many as three dying declarations (Exs.P.5, P.11 and P.18) were recorded and that there is hardly any consistency among them. She contends that while in Ex.P.11 the deceased stated that she deserted her husband two years before the date of occurrence, in Ex.P.5, the period was mentioned as one year. Another inconsistency pointed out by the learned counsel is that while in Ex.P.11 the deceased stated that her intimacy with the accused was open, in Ex.P.5 she stated that both of them were meeting secretly, so that the elders did not get knowledge about the same. Learned counsel further submits that PWs.1 and 2 were not clear and consistent about the manner in which the deceased was leading the life. She contends that PW.1 stated that there was no formal divorce between the deceased and her husband Raju, but Raju was meeting the deceased frequently even after divorce, whereas PW.2 had a different version altogether. Learned counsel further submits that the investigating officer himself admitted that PW.2 did not state before him about arrival of the accused to their house at 11.00 p.m. on the day, preceding occurrence.
7. Learned Public Prosecutor, on the other hand, submits that it is a rare case where more than one dying declarations were recorded and except for certain trivial aspects, the dying declarations, particularly, Exs.P.5 and P.11 are consistent, about the cause of death. She contends that except making some suggestions on certain irrelevant aspects, the defence, throughout the trial, did not make an endeavour to make the presence of the accused at the scene of offence improbable. It is also argued that the dying declarations have been corroborated by the oral and documentary evidence, and that no exception can be taken to the conviction and sentence ordered against the accused.
8. Though the accused was tried for the offence under Section 302 IPC and certain provisions of the Act, the trial Court, ultimately, found that the charge against the accused, referable to provisions of the Act, cannot be sustained. The State also did not file an appeal in that behalf. Therefore, it needs to be seen as to the conviction and sentence ordered by the trial Court can be sustained in law and on facts.
9. The deceased is one of the three daughters of PW.1. The record discloses that PW.1 is also living separately from her husband. The marriage of the deceased with Raju has gone into rough weather. Notwithstanding the lack of clarity as to whether it was a mere desertion or the result of any divorce, the fact remains that she was living separately from her husband. PWs.1 and 2 spoke about the extra marital relationship between the accused and the deceased. In fact, the deceased stated in both her dying declarations about it. On behalf of the accused, an attempt was made to suggest that the deceased had relation with another person by name Singampally Brahmaiah. This indicates that the accused was closely watching the movements on the way of living of the deceased.
10. It is no doubt true that there are certain discrepancies between Ex.P.11 the dying declaration, initially recorded by the police, and Ex.P-5, the second dying declaration recorded by the Magistrate. However, those are about certain aspects, which do not have any bearing upon the cause of death. In both the dying declarations, the deceased stated that the accused suspected her fidelity, and when she answered that if he is suspecting her, he need not visit her, then he became enraged, poured kerosene, and set her on fire. Though it is argued on behalf of the accused that the bottle, which was being used as a lamp, was small in size and the kerosene that can be stored in it, is too small to be sufficient to set a person on fire, the record disclosed that the deceased was wearing a synthetic fabric nighty, and just a spark fire is sufficient to make it burn without the assistance of kerosene or other fuel. Therefore, the quantity of kerosene available at the spot hardly becomes significant. PW.3 was declared hostile. Notwithstanding the fact that the said witness turned hostile, the undisputed part of his evidence is to the effect that the deceased suffered burn injuries, and he arranged for a taxi for shifting her to the hospital in the next morning. If that part of it is taken into account, the version of the deceased, as mentioned in both the dying declarations, gains acceptability.
11. What becomes clear from the evidence on record is that the deceased was having extra marital relationship with the accused and the provocation for the accused to set the deceased on fire is said to be her alleged relationship with another person in addition to the accused. It is rather unfortunate that PWs.1 an 2 the mother and sister of the deceased, instead of discouraging such a relationship, have acquiesced in it by not raising any objection when the accused visited their own house where the deceased was also said to be staying. In case the accused had any motive to kill the deceased, the sequence of events would have been different altogether. Even if the evidence is to be believed in its entirety, both of them lived together upto 2.00 a.m., and on account of something that transpired between them, he is said to have set the deceased ablaze. He cannot be said that he having any pre-determined plan to kill the deceased. We are of the considered view that the case fits into Part-II of Section 304 IPC. Various facts mentioned in the oral and documentary evidence squarely bring the instance into the ambit of that provision.
12. Another circumstance that had strength to our conclusion is that the extent of injuries suffered by the deceased was only 60% on the date of accident and she survived for more than a week. We, therefore, partly allow the appeal and alter the conviction recorded against the accused to be the one under Section 304 - Part II IPC.
13. In the result, the Criminal Appeal is partly allowed and the conviction recorded by the Special Judge for trial of cases under S.Cs. and S.Ts. (POA) Act, against the appellant accused for the offence under Section 302 IPC is modified to be the one, for committing offence under Section 304 Part-II IPC and the sentence imposed against the accused is reduced to rigorous imprisonment for five years. The miscellaneous petitions filed in this appeal shall also stand dismissed. ____________________ L. NARASIMHA REDDY, J ____________________ M.S.K. JAISWAL, J February 05, 2014