Andhra HC (Pre-Telangana)
P.Krishnaiah vs Counsel For on 13 March, 2014
Bench: L.Narasimha Reddy, M.S.K.Jaiswal
THE HONBLE SRI JUSTICE L.NARASIMHA REDDY and THE HONBLE SRI JUSTICE M.S.K.JAISWAL
CRIMIAL APPEAL No. 1743 of 2009
13-03-2014
P.Krishnaiah..... APPELLANT
The State of Andhra Pradesh....RESPONDENT
COUNSEL FOR THE APPELLANT:- Smt.Gayathri Reddy
COUNSEL FOR RESPONDENT:- Public Prosecutor
<Gist:
>Head Note:
?Cases Referred:
1. ((2014) 2 SCC 766)
HONBLE SRI JUSTICE L.NARASIMHA REDDY
AND
THE HONBLE SRI JUSTICE M.S.K.JAISWAL
CRIMINAL APPEAL No. 1743 of 2009
JUDGMENT:(per the Honble Sri Justice L.Narasimha Reddy) The appellant herein was tried by the Court of the IV Additional District & Sessions Judge (Fast Track Court), Mahabubnagar for the offences punishable under Sections 498-A, 304-B and 302 I.P.C. in S.C.No.626 of 2008. Through its judgment, dated 30.10.2009, the trial Court held that he is not guilty of the offence punishable under Section 304-B I.P.C., but convicted him for the offences punishable under Sections 302 and 498-A I.P.C. Punishment of imprisonment for life and fine of Rs.10,000/-, in default to undergo simple imprisonment for a period of three months was imposed for the offence punishable under Section 302 I.P.C. and rigorous imprisonment for three years and fine of Rs.500/-, in default to undergo simple imprisonment for a period of one month was imposed for the offence punishable under Section 498-A I.P.C. Hence, this appeal.
The deceased is none other than the wife of the accused. Through their wedlock, they had two children. The deceased was one of the four daughters of her parents. Her father, by name Pedda Maulali, is said to have died on 05.12.2007. Since his only son predeceased him, the elders of the family are said to have decided that the three married daughters including the deceased must bear the expenditure for the tenth day ceremony, scheduled to take place on 14.12.2007. The accused is said to have expressed his inability and protested.
The junior paternal uncle of the deceased, by name Atmakur Chinna Maulali, submitted a complaint to the Station House Officer, Pangal Police Station on 13.12.2007 at 12.00 noon narrating the events that took place after the death of his brother. He further stated that Smt.Machupally Anjamma, P.W.3, a neighbour of the accused and the deceased, informed him that at 7.30 a.m. on 13.12.2007, a quarrel took place between the accused and the deceased in which the accused kicked the deceased, who was carrying eighth month pregnancy and after that, the accused poured kerosene and set her on fire.
On receipt of Ex.P1, the police registered Crime No.96 of 2007 mentioning Sections 498-A, 302 and 304-B I.P.C. Scene of offence panchanama was conducted and inquest and post-mortem were caused. The accused was arrested on the next day. After completion of the investigation, P.W.8 filed a charge sheet. The trial Court framed the charges against the accused and on denial of the same, detailed trial was conducted.
To prove its case, the prosecution examined P.Ws.1 to 8 and Exs.P1 to P8 were marked. On behalf of the defence, Exs.D1 and D2 were marked. M.Os.1 to 5 were also taken on record. The nature of punishment given to the accused has already been mentioned.
Smt.Gayathri Reddy, learned counsel for the accused, submits that the entire case turned upon the circumstantial evidence and an important part of it is the information said to have been passed on by P.W.3 and it is only on that, Ex.P1 was submitted by P.W.1. She contends that once P.W.3 was declared hostile and her evidence was held to be not reliable, the very basis for Ex.P1 disappears. She further contends that P.W.2, the sister of the deceased, stated that the incident leading to the death of the deceased took place at 9.00 p.m. on 12.07.2007, whereas the entire case of the prosecution was that the death took place at 7.30 a.m. on 13.07.2007. She contends that the medical evidence also does not support the case of the prosecution and that the conviction and sentence ordered against the accused are liable to be set aside.
Learned Public Prosecutor, on the other hand, submits that the evidence on record discloses that the accused was harassing the deceased in several manners and that he did not even show any mercy that the deceased was carrying eighth month pregnancy and caused her death in a cruel manner. She contends that the burn injuries were so severe that they could not have been the result of any accident and the deceased was set on fire only after she fell on the ground. Learned Public Prosecutor further submits that the mere fact that P.W.3 turned hostile does not make any difference as long as the death of the deceased, right in the house of the accused was not disputed and the accused did not make any endeavour to explain the circumstances under which the death occurred.
The information to the police about the death of the deceased reached in the form of Ex.P1, submitted by P.W.1. The source of information for P.W.1, even as mentioned in Ex.P1 is, P.W.3. The record, however, discloses that P.W.3 did not support the case of the prosecution and she was declared hostile. The statement recorded from her under Section 161 Cr.P.C. is filed as Ex.P2. She denied the very recording of statement from her.
It may be true that the evidence of P.W.3, who was a source of information for Ex.P1, to certain extent, would water down the contents of Ex.P1. However, as long as the death of the deceased in the manner stated by P.W.1 is not disputed, the evidence of P.W.3 does not make much difference. In his evidence, P.W.1 stated that the accused used to harass the deceased in many ways and that reached almost its pinnacle when he defied the decision of the elders in the caste that the three sons-in-law of the father of the deceased must share the expenditure for the tenth day ceremony, scheduled to take place on 14.12.2007. Though certain suggestions were made to him, they do not have any bearing upon the circumstances that led to the death of the deceased.
P.W.2 is the sister of the deceased. She too stated the manner in which the accused and the deceased used to lead the life. According to her, the accused was harassing the deceased almost from the time of marriage. One thing which the defence was able to point out with reference to the evidence of this witness is that in Ex.D2, the statement recorded under Section 161 Cr.P.C. from her, she stated that the death of her sister took place at 9.00 p.m. on 12.07.2007. This is at variance with Ex.P1 and the version of the prosecution in the rest of the evidence. However, that, by itself, cannot lead to falsification of the version of the prosecution.
We are conscious of the fact that it is no part of the duty of the accused to explain the circumstances under which a crime, in which he figured as accused has taken place. However, there are certain inherent limitations in this, depending on the relation of the deceased to the victim of the crime. In case the victim is none other than the wife or any other close relation and the accused was together with the deceased, till the occurrence, he is under obligation to explain the circumstances at least in the statement recorded under Section 313 Cr.P.C. If the incident has taken place in any other manner and if he is not involved in it, he must state that. We derive support for this approach from the judgment of the Honble Supreme Court in Anjanappa v. State of Karnataka1. Their Lordships observed as under:
15. What has weighed with the trial Court is the fact that the parents have turned hostile. They came out with a story which even the appellant did not have in mind. He merely denied the prosecution story. The parents stated that the deceased was heating water on stove. She caught fire accidentally and sustained burn injuries. If this was true, the appellant would have stated so in his statement recorded under Section 313 of the Code of Criminal Procedure, 1973 (the Code). We have perused the evidence of the parents. We have no doubt that they were either won over by the appellant or pressurised into supporting the appellant. Their evidence is a tissue of lies. In any case, even if it is obliterated and kept out of consideration, there is sufficient other evidence on record to establish the appellants guilt.
30. Besides, the conduct of the appellant speaks volumes. He was absconding and could be arrested only on 19-2-1992. Moreover, in his statement recorded under Section 313 of the Code he has not explained how the deceased received burn injuries. He did not set up the defence of alibi. It was obligatory on him to explain how the deceased received burn injuries in his house. His silence on this aspect gives rise to an adverse inference against him. It forms a link in the chain of circumstances which point to his guilt.
In the instant case also, the victim i.e. the deceased is none other than the wife of the accused and the gruesome death took place right in his house. In his statement recorded under Section 313 Cr.P.C., he i.e. the accused did not even plead his absence in the premises nor did he mention any circumstances that lead to the death of the deceased. The inescapable conclusion is that the accused was very much present at the time of the death and there was no intervention of third party.
In the totality of the circumstances, we are of the view that the accused and the deceased quarreled on the issue pertaining to the arrangement of funds of their share for the tenth day ceremony of the father of the deceased, which is to take place on the next day and in the process, the accused may have assaulted the deceased. Being a pregnant of eight months, even a small injury was sufficient to make her to faint and since it was a single room, where cooking takes place in the morning, the deceased may have caught fire. Since there is no eye witness account as to what had happened in the whole episode, the only possible conclusion is that the deceased fell on account of the assault by the appellant and later on, she was caught in flames of the stove or other cooking device.
We do not find that there existed such a serious motive for the accused to kill his wife, and the death occurred on account of an assault on a woman of advanced pregnancy. We, therefore, are of the view that it is a case that attracts Section 304 Part-II I.P.C. and accordingly we modify the conviction of the appellant to be the one under that provision.
Therefore, the Criminal Appeal is partly allowed, modifying the conviction of the appellant-accused to be the one under Section 304 Part-II I.P.C. and imposing the punishment of seven years Rigorous Imprisonment with fine of Rs.10,000/- (Rupees ten thousand only), but upholding the conviction as well as sentence imposed for the offence punishable under Section 498-A I.P.C. by the Court of the IV Additional District & Sessions Judge (F.T.C)., Mahabubnagar. It is also directed that both the sentences shall run concurrently.
The miscellaneous petition filed in this appeal shall also stand disposed of.
______________________ L.NARASIMHA REDDY, J _____________________ M.S.K.JAISWAL,J Dt: 13.03.2014