Andhra HC (Pre-Telangana)
Bollam Vasantha Kumar vs The State Of A.P., Rep. By Its Public ... on 6 March, 2014
Bench: L. Narasimha Reddy, M.S.K. Jaiswal
THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY AND THE HON'BLE SRI JUSTICE M.S.K. JAISWAL
Crl.A.No.1613 of 2009
06-03-2014
Bollam Vasantha Kumar.. Appellant/ Accused
The State of A.P., rep. by its Public Prosecutor, High Court of A.P., Hyderabad
.. Respondent
Counsel for appellant: Ms. Ammaji Nettem
Counsel for respondent : The Public Prosecutor
<GIST:
>HEAD NOTE:
?CASES REFERRED : ----
THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY
AND
THE HON'BLE SRI JUSTICE M.S.K. JAISWAL
CRIMINAL APPEAL No.1613 of 2009
JUDGMENT :(Per LNR,,J) The appellant herein was tried by the Court of IV Additional Sessions Judge, Kadapa, for the offences punishable under Sections 498-A and 302 IPC, in S.C.No.367 of 2008, in causing the death of his wife on 01.08.2008 at 2.00 p.m. It was alleged that the accused was married to the deceased about 25 years prior to the date of the incident and they had two sons out of their wedlock. One of the two sons is said to have died. The accused is said to have been addicted to consumption of alcohol. On the date of the incident, he is said to have poured kerosene upon his wife and set her on fire in their house at Mallepalli village of B. Mattam Mandal, Kadapa District. She is said to have been shifted to the Upper Primary Health Center, Porumamilla, by P.Ws.2 and 5 and others.
On a requisition issued by the Medical Officer (P.W.10), the A.S.I. of P.S. Porumamilla (P.W.9), reached the spot. Taking into account the precarious condition of the patient, he recorded her statement (Ex.P.1), after P.W.10 certified that the patient was in a position to speak. The patient is said to have stated that the accused poured kerosene upon her and set her on fire. Even while the efforts were being made to refer the case to Rajeev Institute of Medical Sciences at Kadapa, the patient is said to have breathed her last. Crime No.72 of 2008 was registered, alleging that the accused committed the offences punishable under Section 498-A and 302 IPC. The accused was apprehended on 05.08.2008 and further investigation was taken up. P.W.12 filed charge sheet. The trial Court framed charges, and on denial of the same by the accused, trial was conducted. P.Ws.1 to 12 were examined and Exs.P.1 to P.10 were filed. M.Os.1 and 2 were taken on record.
Through its judgment, dated 22.06.2009, the trial Court convicted the accused of the offence punishable under Section 302 IPC and sentenced him to undergo imprisonment for life and to pay fine of Rs.500/-, in default, to undergo simple imprisonment for three months. The accused was also imposed the punishment of rigorous imprisonment for one year and fine of Rs.500/-, in default, to undergo simple imprisonment for three months on being convicted of the offence punishable under Section 498-A IPC. Both the sentences were directed to run concurrently. Hence, this Criminal Appeal.
Ms. Ammaji Nettem, learned counsel for the appellant, submits that there is no direct evidence for the occurrence, and the trial Court has convicted the accused, only on the basis of assumptions. She contends that even according to the medical report, the deceased was burnt to the extent of 100% and one cannot expect the deceased to speak, at that stage. She further contends that Ex.P.1 cannot be treated as a dying declaration, inasmuch as the condition of the deceased was not ascertained, much less, the precautions that are required under law were taken, and that Rule 33 of the A.P. Criminal Rules of Practice is violated. Learned counsel submits that the evidence of P.Ws.2 and 5 cannot be relied upon, since what they have deposed in the Court was at variance with the one stated by them before the police. It is also her case that the post-mortem report revealed that the skin of the deceased was peeled off and the question of taking the thumb impression of the deceased on Ex.P.1 does not arise. Other contentions are also urged.
Learned Public Prosecutor, on the other hand, submits that Ex.P.1 fits into the description of dying declaration in all respects. She contends that Ex.P.1 was recorded, only after P.W.10 certified that the patient is in a position to speak. She also contends that Rule 33 would apply, only when the dying declaration is recorded by a Judicial Magistrate and not by a Police Officer, if the condition of a patient is too precarious. She further submits that Ex.P.1 is thoroughly corroborated by the evidence of P.Ws.2 and 5. According to her, though P.W.5 was declared hostile, at the instance of the Public Prosecutor, on the basis of one statement made by her in the cross-examination, the entire information pertaining to the acts and omissions on the part of the accused was elicited, and the evidence of P.W.5 is almost similar to that of P.W.2.
The accused is alleged to have caused the death of his wife. The manner in which the injuries to the wife of the accused were noticed and as to how she met with the death, have already been mentioned in the preceding paragraphs. The police received information about the incident, only after the deceased was admitted into the Upper Primary Health Center at Porumamilla. P.W.10, the Medical Officer, gave intimation to the police, and immediately, P.W.9, rushed to the spot. On noticing that the condition of the patient is very serious, he recorded her statement, Ex.P.1, at 4.10 p.m. It reads:
"I am a native of i.e., my mother's village Mekavaripalli of Badvel Mandal. About 25 years back, I was given in marriage to Vasantha who is resident of Mallepalli Harijanawada of Mattam Mandal. We are having two male children. My husband always consuming alcohol, beat me and abused me. Whenever I refused to give the coolly amount, he used to beat me and sent out of the house. Today i.e., on 1.8.2008 afternoon at about 2.00 p.m. my husband poured kerosene which was in a bottle on me and set fire with a match stick. Immediately, flames were raised on body and that I raised cries and that my husband thrown me on the earth. Out of my two sons one of my sons went to Masonry work and another son went to School. Due to burns, I raised cries. One Mada Sekhar shifted me to Government Hospital, Porumamilla in 108 Ambulance and got admitted me. While I was taking treatment, police came and enquired me and I stated the incident."
It is important to mention that P.W.10, the Medical Officer, endorsed upon Ex.P.1 as under:
"Patient is conscious at the time of taking the statement from her in my presence."
Though at one point of time, by P.W.10, it was decided to shift the patient to the District Headquarters Hospital, it appears that the condition of the patient did not permit. In his chief-examination, P.W.10 stated:
"Soon after recording her statement, I referred to RIMS Hospital, Kadapa. Since her close relations capable enough to take care of her were not present, she could not be shifted immediately, after recording her statement, thereby, she lost her life in UPHC, Porumamilla itself."
No suggestion was made in the cross-examination to contradict this aspect.
It is true that it would have been better, had the dying declaration, Ex.P.1, been recorded by a Magistrate. However, the fact remains that there is no Court at Porumamilla and the nearest Court is at Badvel. It is only a competent Police Officer or Medical Officer, who can give the requisition, and that needed proper communication to the Magistrate. The police reached the spot only at 4.10 p.m. and the patient breathed her last at 7.20 p.m. Hardly, there was any time for the information to be passed on to the Magistrate and for the latter to arrive at the Health Center, for recording the dying declaration.
Law does not require that the dying declaration of a deceased must be recorded by a particular official or in a particular form. Much would depend upon the availability of the concerned officials and the condition of the patient. If the condition of a patient is too precarious, the statement made even to a third party, who does not hold any official position, can be acted upon.
Though the dying declaration alone can constitute the basis for determining the guilt or otherwise of the accused, existence of corroborative evidence would strengthen the hands of the Court in this aspect. Here again, it needs to be observed that a dying declaration, if otherwise in order, does not lose its value, simply because there is no corroborative evidence.
In the instant case, the evidence of P.W.2 assumes importance. P.W.1 is the mother of the deceased, and not being an eyewitness, her evidence is not of much use.
P.W.2 is a neighbour of the accused and the deceased in the village. He stated that the accused used to consume alcohol and harass the deceased for money. According to him, the accused used to insist on payment of the daily wages of the deceased also for alcohol. About the incident, he stated that when he remained at house, at about 2.00 p.m. he heard cries from the house of the accused and when he and his wife rushed there, the neighbours also arrived, and by that time, the accused was standing in front of his house, by bolting the door from outside. The deceased was said to be inside the room, in flames. P.W.2 and other persons are said to have opened the door and found the deceased in a serious burnt condition. The witness further stated that they doused the fire and immediately asked her about what happened.
P.W.2 has also stated that the deceased told them that the accused poured kerosene upon her and set her on fire. When P.W.2 and other witnesses came out together with the deceased, they are said to have noticed the accused absconding from the scene. He spoke to the factum of their admitting the deceased in the Upper Primary Health Centre at Porumamilla, when she was struggling for life. The witness has also spoke about the recording of the statement of the deceased by the police and other subsequent developments. No enmity was suggested to P.W.2 vis--vis the accused, nor any information was elicited from him in the cross-examination to doubt whatever he has stated in the chief-examination. A suggestion was made to him that the deceased was unconscious and not able to speak, but he denied the same.
P.W.5 is another important witness. She too is the resident of the village. Though, at one stage, she was declared hostile, the prosecution was able to elicit the necessary information from her in the cross-examination. It reads:
"We also noticed smoke coming from the house of the accused. As we tried to enter into the house of the accused, the accused did not allow us to go into the house. Somehow, we entered into the house of the accused. As we found the deceased in flames, we put off the flames by wrapping clothes upon her. I did not ask the deceased anything, as I was scared of seeing the deceased in flames."
This witness was also cross-examined on behalf of the accused.
P.W.10, as observed earlier, is the doctor, who treated the deceased, soon after she was brought to the Upper Primary Health Center and gave intimation to P.W.9. He stated that the deceased suffered extensive burn injuries and she was in hypo-volemic condition. Learned counsel for the appellant argued that a person in hypo-volemic condition would not be in a condition to speak, and that Ex.P.1 is totally unreliable. Reliance is placed upon some text and literature. The record, however, discloses that, to a specific question, P.W.10 answered that even in such a condition, the deceased would be in a position to speak. Nothing is cited before us to convince us that there was no possibility for the deceased in this case, to speak.
From the discussion undertaken above, what emerges is that:
a) Ex.P.1, the dying declaration, does not suffer from any legal or factual infirmities,
b) Ex.P.1 is corroborated and supported by the evidence of P.Ws.2 and 5, and
c) P.W.10, the doctor, who treated the patient, categorically stated that the patient was in a position to speak and Ex.P.1 was recorded, only after he certified her condition.
Once the deceased has named the accused as the person, who poured kerosene upon her and set her on fire, the inescapable conclusion is that he is guilty of the offences. It was not denied that the accused became addicted to intoxication and used to harass the deceased to arrange the money for it. The blame for this goes to the State of A.P. which has excelled in supplying liquor to the citizens at door step. We hasten to add that the accused was not in intoxication condition, when he committed the crime. It has become insensitive to hundreds and thousands of such instances. Unfortunately, there is no provision in law that enables the Courts to punish such abettors. We do not find any basis to interfere with the findings recorded by the trial Court.
Accordingly, the Criminal Appeal is dismissed.
_____________________ L. NARASIMHA REDDY, J.
________________ M.S.K. JAISWAL, J.
6th March, 2014