Andhra Pradesh High Court - Amravati
Gunnapu Lakshmanarao, W.G.Dt., vs State Of Ap., Rep., Pp.Hyd., on 11 November, 2020
Author: U.Durga Prasad Rao
Bench: U.Durga Prasad Rao, Ninala Jayasurya
HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
AND
HON'BLE SRI JUSTICE NINALA JAYASURYA
Criminal Appeal No.1062 of 2014
JUDGMENT:(Per Hon'ble Sri Justice U.Durga Prasad Rao) Aggrieved by the judgment dated 28.12.2012 in Sessions Case No.102/2012 passed by the learned Principal Sessions Judge, West Godavari Division at Eluru convicting the accused for the offences under Sections 498-A and 302 IPC and sentencing him to suffer imprisonment for life and to pay a fine of Rs.200/- for the offence under Section 302 IPC and further sentencing him to suffer rigorous imprisonment for one year and to pay a fine of Rs.100/- for the offence under Section 498-A IPC, this Criminal Appeal is filed by the sole appellant/accused.
2. The facts in brief, which lead to file this Criminal Appeal, can be stated succinctly thus:
(a) The accused and the deceased-Gunnapu Bhavani had a love affair and married about four years prior to her death that occurred on 01.11.2011.
By the date of offence, they had a son-Sai Sandeep aged about 1½ years. The accused was an Auto Driver and the couple was living in a rented house in Pamula Dibba, R.R.Pet, Eluru. The prosecution case is that after the birth of son-Sandeep, the accused addicted to vices like consuming liquor and torturing the deceased suspecting her fidelity.
(b) On 18.10.2011, at about 02:00 p.m. the accused went to his house in a drunken state of mind and beat his son on the allegation that he was not born to him and when the deceased questioned his high handed 2 UDPR, J & NJS, J Crl.A.No1062/2014 behavior, the accused grew wild and beat her black-and-blue. Due to pains, the deceased went to nearby medical shop to get medicine; the accused followed her and dragged her to home by beating her and bolted the doors from inside, poured kerosene and set her ablaze with an intent to kill her. Unable to bear burns, the deceased opened doors and came out of the house shouting for help. The neighbous-P.Ws.2, 5 and others rushed there and doused flames. In the meanwhile, P.W.1-elder sister of the deceased and her father also rushed there and all of them took her to Government Headquarters Hospital, Eluru and admitted her. Upon receiving Ex.P.9- Hospital intimation, P.W.14/learned Judicial First Class Magistrate, Special Court for Excise, Eluru proceeded to Hospital and recorded Ex.P.12/dying declaration of the deceased. Upon intimation, P.W.11/Head Constable, Out Post Police Station, General Hospital, Eluru, went and recorded Ex.P.4/Statement of the deceased and thereafter, on 18.10.2011, a case in Crime No.306/2011 was registered for the offences under Sections 498-A and 307 IPC on the file of II town Police Station, Eluru and investigated into by P.W.9.
(c) Pending investigation, the deceased was shifted to Government General Hospital, Vijayawada for Expert's treatment on 19.10.2011. Whereupon receiving hospital intimation, P.W.15-III Metropolitan Magistrate, Vijayawada, recorded dying declaration of the deceased in the Government General Hospital, Vijayawada under Ex.P.14. While undergoing treatment, the deceased succumbed to injuries and died on 01.11.2011 at 03:20 a.m. and basing on her death intimation, P.W.10-S.I. of Police, II town Police Station, Eluru altered section of Law from Section 3 UDPR, J & NJS, J Crl.A.No1062/2014 498-A and 307 IPC to Section 498-A and 302 IPC on 01.11.2011 and after completion of investigation, P.W.12-Inspector of Police, Town Circle, Eluru filed charge sheet against the accused.
(d) On appearance of the accused, the trial Court framed charges under Sections 498-A and 302 IPC against the accused, who denied the same and claimed to be tried.
(e) During the course of trial, P.Ws.1 to 16 were examined and Exs.P.1 to P.14 were marked and M.Os.1 and 2 were exhibited on behalf of the prosecution. On behalf of the Accused, Ex.D.1 was marked. Accused did not adduce any oral evidence.
(f) Upon hearing arguments of both sides, the trial Court mainly relying upon Exs.P.12 and P.14-dying declarations of the deceased recorded by the learned Magistrates, wherein, the deceased stated that the accused set her ablaze, and also considering the other relevant supporting evidence, held that the accused was guilty of charges leveled against him. As can be seen, the defence plea is one of total denial of the offence and that the accused is not responsible for the death of the deceased, which plea was not found favour with the trial Court and ultimately he was convicted and sentenced as stated supra.
Hence, the instant Criminal Appeal.
3. In the grounds of appeal, the judgment of the trial Court was severely criticized on the plea that without there being any direct eyewitness watching the accused pouring kerosene and setting the deceased ablaze, the 4 UDPR, J & NJS, J Crl.A.No1062/2014 trial Court, going by circumstantial evidence, wrongly convicted the accused.
4. Heard arguments of the learned Counsel for the appellant Smt. A.Gayatri Reddy, and the learned Public Prosecutor representing the respondent State.
5. The parties in this appeal are referred as they are arrayed before the trial Court.
6. While severely fulminating the judgment of the trial Court, the learned Counsel for the Appellant/Accused, firstly, argued that the trial Court grossly erred in convicting the accused though there is no plausible and believable evidence. In expatiation, she would submit, in this case, there is no direct eyewitness who had seen the accused pouring kerosene on the deceased and setting her ablaze. Still the trial Court convicted the accused only on the basis of hearsay evidence of P.Ws.1, 2 and 5, among whom, P.W.1 is an interested witness, in as much as, she is the elder sister of the deceased and further, she nurtured grouse against the accused for chastising her for having love affair with one Praveen and bringing him to home. The other two witnesses i.e. P.Ws.2 and 5 are also not reliable as admittedly they are eking out their livelihood by doing laundry work and vegetable vending respectively and as such the presence of P.Ws.2 and 5 at their respective houses at the time of the incident and hearing shouts of deceased and proceeding to rescue her is highly doubtful. They were set up as witnesses just because they happened to be neighbours of the deceased.
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(a) Secondly, the learned Counsel for the accused argued that Exs.P.12 and P.14/dying declarations, upon which the trial Court placed heavy reliance, are not free from doubt and those statements do not reflect true facts and they are the outcome of thorough tutoring by the father and elder sister of the deceased. The father of deceased was present at the hospital even before the learned Magistrate reached hospital to record Ex.P.12, which implies that before arrival of the Magistrate, the mind of the deceased was overhauled to speak ill of the accused though, in fact, the deceased was accidentally caught in fire. Whereas, Ex.P.14-dying declaration was recorded long after the incident and after the deceased was shifted to Government General Hospital, Vijayawada for Expert's treatment. It goes without saying that in the interregnum period, the deceased must have been thoroughly prompted to give statement against her husband. Therefore, there is any amount of doubt regarding the genuinity of the statement given by the deceased in her two declarations. Further, admittedly, the deceased suffered severe burn injuries on her body including on the cheeks, lips and below the ears etc. The burns accounted for more than 80%. In such an event, it is highly difficult, nay, impossible for the deceased to give any cohesive statement narrating the incident. However, without considering all these aspects in right perspective, the trial Court blindly carried away by the two dying declarations and recorded conviction, which is factually and legally unsustainable.
(b) Thirdly, learned Counsel argued that even assuming that the accused caused her burn injuries, since admittedly he was in a drunken condition at the time of incident, no mens rea could be attributed to him in 6 UDPR, J & NJS, J Crl.A.No1062/2014 the whole episode and on that ground, the trial Court ought to have taken liberal view and acquitted the accused, or, at least, imposed a lesser punishment. She, thus, prayed to allow the appeal and set aside the judgment of the trial Court.
7. Per contra, the learned Public Prosecutor, while supporting the judgment of the trial Court, would argue that the accused used to harass and ill-treat the deceased by consuming liquor and on suspecting her chastity since some time prior to the incident. On the date of offence also, he beat his tender aged son on the misconception that he was not born to him and when questioned by the deceased, he beat her also and dragged her to the house and bolted the doors from inside and set her fire. The entire episode would show, learned Public Prosecutor argued, the accused had animosity against the deceased to kill her. While admitting that there were no direct eyewitnesses to the incident, he argued, nevertheless the evidence of neighbours i.e. P.Ws.2 and 5, who on hearing shouts of the deceased rushed and rescued her, is no less important, because the presence of the accused at the spot was confirmed by them. Therefore, their evidence is relevant under the principle of 'res gestae'. The learned Public Prosecutor further argued, by virtue of their evidence, the Accused owed a responsibility to explain how the deceased was caught in fire and also that he was not responsible for burn injuries of the deceased. The learned Public Prosecutor vehemently argued, the accused totally failed to answer these crucial aspects. On the other hand, the deceased had, in her two dying declarations, consistently, stated that it was the accused, who set her on fire. Having regard to the fact that the Accused was harassing her in a drunken state by suspecting her 7 UDPR, J & NJS, J Crl.A.No1062/2014 fidelity, her version that on the said grouse, he set her ablaze can be safely believed. The learned Public Prosecutor finally argued that voluntary drunkenness and committing some offence is not an excusable act under law for acquittal. He, thus, prayed to dismiss the appeal.
8. The points for consideration, in this Criminal Appeal, are:
01. Whether the deceased met with homicidal death on account of receiving burn injuries?
02. If point No.1 is held affirmatively, whether the appellant-accused is responsible for her death and whether the prosecution could prove his guilt beyond all reasonable doubt?
03. Whether the judgment of the trial Court in convicting the accused is factually and legally sustainable?
9. Point No.1:
Admittedly the deceased sustained burn injuries at her house situated in Pamula Dibba of R.R.Pet, Eluru on 18.10.2011 and while undergoing treatment in the Government General Hospital, Vijayawada, succumbed to death on 01.11.2011. P.W.7-Assistant Professor of Forensic Medicines, Government General Hospital, Vijayawada, who conducted autopsy over the dead body and issued Ex.P.3-postmortem certificate, stated that the deceased suffered 80% of burns on the surface area of her body and the cause of death was due to burns and its complications. The aforesaid evidence of P.W.7 was not seriously challenged in the cross-examination. What is elicited from the postmortem Doctor is that septicaemia will be developed from 36th hour 8 UDPR, J & NJS, J Crl.A.No1062/2014 after burns and death can be caused due to development of said septicaemia.
It should be noted that as per Chambers 20th Century dictionary (1983 edition), 'septicaemia' means - "presence of pathogenic bacteria in the blood'. It is a putrefactive bacteria. Thus, due to burn injuries, pathogenic bacteria will be developed in the body, which will cause the death. This fact further confirms that the death of deceased was only due to burn injuries.
10. Then coming to the question whether the burn injuries are accidental or self-immolative or homicidal, though the accused in the cross- examination of P.W.1 suggested as if the burn injuries of the deceased were accidental, however, the evidence of P.Ws.1, 2 and 5 rules out such possibility and also the possibility of self-immolation. Hence, their evidence has to be keenly scrutinized.
11. P.W.1 who is the elder sister of the deceased stated that the accused got the habit of smoking and consuming liquor and he was not paying any amount to the deceased for the maintenance of the family; the deceased herself was maintaining the family by working as maidservant; the accused used to harass the deceased by beating her under the influence of alcohol and by suspecting her fidelity; the deceased sustained burn injuries on 18.10.2011 at about 2:00 p.m; at that time she (P.W.1) was in the hospital and on receiving phone call from her father, she rushed and then herself and her father shifted the deceased to the Government Hospital; the deceased told her that when she questioned the accused as to why he was beating their son, the accused replied to her that the son was not born to him and beat her also indiscriminately and went away under the influence of alcohol; then, while the deceased was proceeding to bazaar to get medicines on account of 9 UDPR, J & NJS, J Crl.A.No1062/2014 pains, the accused went behind her, caught her chunni, dragged her to the house, closed the doors, poured kerosene and set her fire and she came out by raising cries and the neighbours put-off the flames. In the cross- examination, she admitted that she was not present at the time of the incident. She denied the suggestion that since the accused scolded her for her having love affair with Praveen and bringing him to the house, she developed grudge against him and spoke falsehood. She denied further suggestion that in her statement before the Police she did not state about the accused going behind the deceased and dragging her to the house by catching her chunni and closing the doors and pouring kerosene and setting her fire.
12. P.W.2 is a neighbor of the Accused and the deceased and he resides in one of the five portioned rented house. He is doing laundry business. According to him, he resides in the second portion and the accused is residing in the third portion. Regarding the incident, his evidence is that on 18.10.2011 at about 2:30 or 3:00 p.m., when he was ironing clothes at his house, he observed the deceased and accused were altercating with each other and went inside the house; thereafter he observed the deceased came out with burn injuries raising cries to put-off flames; at that time, the accused and his son were also present in the house; theirs is one roomed house; then himself and Ramakrishna (L.W.7) went and put-off the flames; in the meanwhile, P.W.1 and her father came there and took the deceased to the Hospital; later he came to know that the deceased was shifted to Government Hospital, Vijayawada and she died there. In the cross- examination, he admitted that he never enquired about the reasons for 10 UDPR, J & NJS, J Crl.A.No1062/2014 dispute between the accused and deceased nor father of the deceased informed him about the same. He admitted that he did not know what transpired inside the house of the accused at that time. He denied the suggestion that he was not present and did not witness any incident.
13. P.W.5 is another neighbor of the accused. She is a seasonal fruit vendor. Her version is that on the date of incident, she was at her house due to ill-health and at about 03:00 p.m., she observed the deceased with flames; she came out of the house and found the accused standing there; P.W.2 and others put-off flames. In the cross-examination, she stated that only a wall separates her house and the house of the accused. She admitted that she did not know what transpired in the house of the accused at that time. She denied the suggestion that she did not witness anything.
(a) Thus, we have the evidence of P.Ws.1, 2 and 5 to speak about the deceased sustaining burn injuries. It is true that none of them is a direct eyewitness for the accused pouring kerosene on the deceased and setting her fire. However, immediately after the incident, P.Ws.2 and 5, being immediate neighbours, on hearing pathetic cries of the deceased for help, rushed to the scene and P.W.2 and Ramakrishna (L.W.7) doused flames. Similarly, P.W.1 and her father rushed to the scene within short time of incident and took the deceased to Government Hospital, Eluru for admission and P.W.1 heard from the deceased as to the cause for her sustaining burn injuries. All these incidents have occurred within close proximity to the main incident and thus they formed part of the same transaction and therefore, the evidence of P.Ws.1, 2 and 5 is relevant and admissible under the principle of 'res gestae' as per Section 6 of the Indian Evidence Act.
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(b) In Sawal Das v. State of Bihar1, the facts, which are similar to the present case would depict that the evidence of some of the witnesses in that case was held relevant and admissible under Section 6 of the Indian Evidence Act. In that case, the deceased was allegedly killed by burning by her husband, father and stepmother and concealed in a bag with the help of some of their workers. The plea of the accused was that the deceased was wearing nylon saree and caught fire accidentally while she was using kerosene stove in her room and ultimately died of extensive burns on her body. On the morning of incident, a quarrel took place between the deceased and her mother-in-law in the upstairs room. On the call given by mother-in-law, the husband of the deceased and his father went up and then took the deceased into a room and there allegedly they committed ghastly act of burning her to death. The cries of the deceased "Bachao" "Bachao" were heard by her children and they cried that their mother was either being killed or had been killed. There was also a maidservant present in the varandah outside the room at that time. The children and maidservant were not produced as the witnesses in the trial Court. In that context, the Hon'ble Supreme Court of India observed, the evidence of children and maidservant if examined, would be relevant and admissible under Section 6 of the Indian Evidence Act.
(c) Thus, the evidence of P.Ws.1, 2 and 5, which is relevant under Section 6 of the Indian Evidence Act, would clearly disclose that the burn injuries sustained by the deceased were neither accidental nor due to self- immolation. On the other hand, she opened the doors and ran out for help. 1 AIR 1974 SC 778 12 UDPR, J & NJS, J Crl.A.No1062/2014 Had it been self-immolation, she would not have come out and sought for help. Therefore, it can be stated that burn injuries sustained by the deceased were at the instance of some other person. Their evidence would establish about the presence of the accused at the scene of offence during relevant time. P.Ws.1, 2 and 5 were cross-examined, but nothing specific could be extracted to dislodge their credibility. Though the accused suggested to P.W.1 that the deceased had caught fire accidentally, there is no further elaboration from him as to method and manner in which the deceased suffered that accident. As he was physically present at the scene and he being the husband of the deceased and inmate of the house, he owed a responsibility to disclose the manner of occurrence of the accident, if really it did occur. Therefore, the possibility of 'accident' or 'self-immolation' can be safely excluded and without any demur the death can be held to be a 'homicide'. Hence, it has now to be seen in the point infra, whether the accused was responsible for the burn injuries of the deceased and her ultimate death.
14. Point Nos.2 & 3:
As already discussed supra, there is no direct eyewitness for the murderous act. However, in this case, we have two dying declarations of the deceased in the form of Exs.P.12 andP.14.
15. The Law on 'dying declarations' is no more res-integra. The doctrine of 'dying declaration' enshrined under Section 32 of the Evidence Act, 1872 is an exception to the general rule contained in Section 60 of the Evidence Act, which says oral evidence in all cases must be direct i.e. it must be the evidence of a witness, who claims he saw the incident. The dying declaration is an exception in the sense that it is the statement of a person 13 UDPR, J & NJS, J Crl.A.No1062/2014 who cannot be called as a witness and therefore cannot be subjected to cross- examination. His statement is divulged through the evidence of another person who records such statement called dying declaration. If the dying declaration infuses confidence and the Court concludes that the said declaration is free from prompting or tutoring, it can base the conviction on the sole dying declaration without seeking for corroboration from other evidence. Its acceptability is based on the legal maxim "nemo moriturus praesumitur mentire", which means a man will not meet his maker with a lie on his mouth. Generally, it is believed that the truth sits on the lips of a dying person and he would not venture to tell lies, more so, with regard to cause of his death and about his assailant. This belief, generally, guides the Courts to accept the dying declaration. In the following decisions, the Hon'ble Apex Court observed that conviction can be recorded on the basis of dying declaration alone, but the Court must be satisfied that the same was true and voluntary.
(i) State of Uttar Pradesh v. Shishupal Singh2
(ii) Samadhan v. State of Maharashtra3 and
(iii) Lakhan v. State of Madhya Pradesh4
With the above jurisprudence, it has now to be seen whether in the instant case, the two dying declarations of the deceased can be relied upon or not.
2 1992 Supp (2) SCC 60 3 (2008) 16 SCC 705 4 (2010) 8 SCC 514 14 UDPR, J & NJS, J Crl.A.No1062/2014
16. Ex.P.12-dying declaration was recorded by P.W.14 who is Judicial Magistrate of First Class of Special Court for Excise Offences, Eluru. According to him on 18.10.2011 at 05:05 p.m., on receiving Ex.P.9- intimation from the Hospital, he rushed there and after ascertaining from P.W.13 about the capability of the injured to give statement and after obtaining certification, he posed some questions to ascertain the state of mind of the patient and thereafter he recorded her statement. P.W.14 stated that on his query, the deceased stated that her husband poured kerosene and set fire with a matchstick by closing the doors and he (P.W.14) recorded the said statement. The learned Magistrate stated that the patient was conscious, coherent and in fit state of mind throughout recording her statement. He further stated that except himself, his attender and the duty Doctor, no other person was present with the patient while recording the statement. He further stated that he obtained certification from the duty Doctor that the patient was conscious, coherent and in a fit state of mind throughout the statement. He read over the contents of the statement of the patient and after having understood the same, the patient informed that the contents of the statement were true and correct. He, then, obtained the Left Thumb Impression of the patient and concluded the proceeding at 05:35 p.m. He denied the suggestion in the cross-examination that the patient was not under conscious state of mind at the time of recording of the statement due to excessive burns and that the statement under Ex.P.12 was not given by her voluntarily.
17. We gave our anxious consideration to the above evidence of P.W.14 and Ex.P.12. Ex.P.12 can be said to be the earliest version, after incident, 15 UDPR, J & NJS, J Crl.A.No1062/2014 which came from horse's mouth i.e. deceased herself. The incident was occurred at about 02:00 or 02:30 p.m., and the deceased was brought to the Government Hospital, Eluru, where her statement was recorded at 05:30 p.m. The learned Magistrate avouched that at the time of recording her statement, except himself, his attender and duty Doctor, none others were present. In view of the time lapse between the incident and recording of dying declaration being minimum and as none others were present by the side of the deceased, tutoring or prompting of the deceased can be safely excluded. Thus, whatever has been stated by the deceased was her own. With this assurance, when perused her statement, the deceased stated that on that afternoon at about 02:00 p.m., the accused beat her son and when she questioned, he dragged her inside the house and closed the doors and poured kerosene on her and set fire with a matchstick. She further stated that the accused used to beat her every day. When questioned by her elder sister and father, the accused used to beat them also. She stated that her neighbours came and doused fire. On a careful scrutiny we do not find any unnaturality or exaggeration in the statement of the deceased. The deceased having been vexed with the attitude of the accused and torture meted out to her, stated before the learned Magistrate that she did not want her husband (accused) anymore as he was torturing her to death. The dying declaration reveals the cruel and sadistic approach of the accused on one hand and tragic and pathetic condition of the deceased on the other. Hence, there is no reason to disbelieve her version.
(a) It must be noted that going by the evidence of P.Ws.2 and 5 we have, already, held that the accused was present at the home at the time of 16 UDPR, J & NJS, J Crl.A.No1062/2014 incident and he owed a responsibility to speak about the cause of burn injuries to his wife. He did not give any plausible explanation either in the cross-examination of the witnesses or in his 313, Cr.P.C. examination except suggesting that the deceased was caught fire accidentally.
18. Besides Ex.P.12, we have another dying declaration of the deceased under Ex.P.14. It was recorded by P.W.15-learned Metropolitan Magistrate, Vijayawada on 19.10.2011 after the deceased was shifted to the Government General Hospital, Vijayawada for Expert's treatment. Before him (P.W.15) also, the deceased stated similar to her earlier statement under Ex.P.12. She emphatically stated that when she questioned her husband (accused) as to why he was beating their son, he poured kerosene on her and set fire. She stated that since four years, the accused was torturing her by suspecting her fidelity. He would not give money for maintenance and when she went to attend work as maidservant, the accused used to suspect her. We find no unnaturality in the said statement of the deceased also.
19. It is argued that due to extensive burns, particularly, on the face, lips etc, the deceased was not in a fit condition to give statement. However, on both the occasions of recording her statements, the concerned duty Doctors have certified about her statement worthiness. So the said argument cannot be appreciated. Thus, at the outset, the dying declarations of the deceased are sufficient to hold that the accused was responsible for causing her death by setting her ablaze. As rightly argued by the learned Public Prosecutor, drunkenness of the accused, at the relevant time of the incident, cannot be a ground to excuse his offence. The trial Court has rightly convicted the accused for the offences under Sections 498-A and 302 IPC.
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20. Accordingly, this Criminal Appeal is dismissed by confirming the conviction and sentence passed by the trial Court in Sessions Case No.102/2012, dt.28.12.2012. No costs.
As a sequel, interlocutory applications, if any pending, shall stand closed.
__________________________ U. DURGA PRASAD RAO, J _______________________ NINALA JAYASURYA, J 11.11.2020 MVA