Andhra Pradesh High Court - Amravati
T.M. Elumalai, Chittoor Dist. vs P.P., Hyd on 25 November, 2022
Author: C. Praveen Kumar
Bench: C. Praveen Kumar
THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE B.V.L.N. CHAKRAVARTHI
CRIMINAL APPEAL No.426 of 2015
JUDGMENT :[Order of the Court] Sole accused in Sessions Case No.205 of 2011 on the file of the Special Sessions Judge-cum-IV Additional Sessions Judge, Tirupati, is the appellant herein. He was tried for the offences punishable under Section 498-A and 302 of Indian Penal Code, 1860 [for short, "I.P.C."] for causing the death of his wife by name R. Saranya on 18.01.2011 at 3.00 p.m. at his house in Dharmapuram Village.
2. By its judgment, dated 18.03.2015, the learned Sessions Judge convicted the accused for the offences punishable under Section 498-A and 302 I.P.C. and sentenced him to suffer Rigorous Imprisonment for a period of three (3) years and to pay fine of Rs.1000/- for the offence under Section 498-A I.P.C. and he is further sentenced to undergo Rigorous Imprisonment for Life and 2 CPK, J & BVLNC, J Crl.A.No.426 of 2015 to pay fine of Rs.4000/- for the offence under Section 302 I.P.C. In default of payment of above fine amounts, the accused is further sentenced to undergo Rigorous Imprisonment for a period of Six months.
3. The facts, in issue, are as under:-
(a) The accused is the husband of the deceased.
P.W.1 is the mother while P.W.2 is the husband of P.W.1 and father of the deceased. P.W.3 and others are residents of Dharmapuram Village. The marriage of the accused with the deceased took place on 20.06.2008. After the marriage, the deceased joined her husband at Dharmapuram Village and lead her marital life. They were blessed with a son. It is said that the accused got addicted to alcohol and used to abuse the deceased with vulgar language and also used to beat her. Unable to bear the harassment and ill-treatment, the deceased came to the house of P.W.1 and stayed there for some time. Mediations were held, in which, the accused promised to look after the deceased well. Accordingly, the deceased was sent along 3 CPK, J & BVLNC, J Crl.A.No.426 of 2015 with the accused, but there was no change in the behaviour of the accused.
(b) On 18.01.2011 at about 2.50 p.m. the deceased telephoned to P.W.1 and informed that the accused beat and abused her as "EME LANJA EMINDA GADITHO MATLADUTHUNNAVU". An hour later, P.W.1 came to know that her daughter sustained injuries. She went to the house of the accused, where she was informed that the injured was taken to Government Hospital, at Nagiri. Then, P.W.1 went to the hospital and found the injured with burnt injuries. When P.W.1 enquired, the deceased stated that "when she informed the accused about going to her parents' house, the accused saying that he will kill her if she goes to her parents' house, poured kerosene from her back side and lit fire." From Nagiri hospital, the injured was shifted to SVRRGG hospital, Tirupati where she was treated for four days. On the fifth day, the injured died while she was being shifted to Chennai.
(b) On 18.01.2011 at about 3.45 p.m. P.W.15 who was incharge of Nagiri Police Station, received intimation 4 CPK, J & BVLNC, J Crl.A.No.426 of 2015 about the admission of the injured in the hospital. Immediately, he proceeded to the hospital and recorded the statement of the injured. Ex.P15 is the said statement. Basing on the said statement, he registered a case in Crime No.07 of 2011 under Sections 498-A & 307 I.P.C. Ex.P16 is the First Information Report [F.I.R.]. He again went to Nagiri Hospital, but however came to know that the injured was shifted to SVRRGG Hospital, Tirupati. P.W.15 proceeded to the said hospital and again recorded the statement of the injured and also that of P.Ws.1 and 2.
(c) At this stage, it is to be noted that on 18.01.2011 at 6.10 p.m, P.W.12-Magistrate received a requisition from CMO, SVRRGG Hospital, Tirupati, to which, she proceeded to the hospital, identified the injured and after being satisfied that the injured was conscious, coherent and in a fit state of mind to give a statement, recorded the statement of the injured. Ex.P11 is the statement of the injured.
(d) P.W.15, who was investigating the case, proceeded to the scene of offence and prepared an observation report 5 CPK, J & BVLNC, J Crl.A.No.426 of 2015 of the scene in the presence of P.W.3. At the scene, he seized M.Os.1 to 4 under Ex.P2-Observation Report. He also got prepared a rough sketch of the scene which is marked as Ex.P17-Rough Sketch. At the scene, he recorded the statement of P.Ws.5 to 7, 9 and 10. P.W.16 took up further investigation, verified the investigation done by P.W.15 and recorded the statements of P.Ws.4 to 7 at the scene. He arrested the accused on 20.01.2011. On 23.01.2011 at 10.30 a.m. he received a report from P.W.1 stating that the injured died while being taken to Chennai for better treatment. Basing on that, he altered the section of law from Section 307 I.P.C. to Section 302 I.P.C. Ex.P18 is the altered F.I.R.
(e) P.W.17, who took up investigation after altering the section of law, proceeded to the house of P.W.1 where the dead body was kept and held inquest over the dead body in the presence of P.W.11 and others. Ex.P9 is the inquest report. He examined P.Ws.1 to 4 and recorded their statements. After completing the inquest proceedings, the body was sent for Post Mortem examination. 6
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(f) P.W.13, who was working as Civil Assistant Surgeon in Area Hospital, Nagiri conducted autopsy over the dead body of the deceased and issued Ex.P12-Post Mortem Certificate.
4. After arrest of the accused and after collecting all the necessary documents, P.W.17-Inspector of Police filed Charge Sheet, which was taken on file as P.R.C.No.05 of 2011 on the file of Judicial Magistrate of First Class, Nagiri.
5. On appearance of the accused, copies of the documents as required under Section 207 Cr.P.C. were supplied to him. As the case is triable by Court of Sessions, the case was committed to the Court of the Sessions under Section 209 Cr.P.C. Accordingly, the same was made over to the Court of the learned Special Sessions Judge-cum-IV Additional District and Sessions Judge, Tirupati, for trial and disposal in accordance with law.
6. Basing on the material available on record, charges, as referred to earlier, came to be framed, read over and 7 CPK, J & BVLNC, J Crl.A.No.426 of 2015 explained to the accused in Telugu, to which, he pleaded not guilty and claimed to be tried.
7. To substantiate its case, the prosecution examined P.Ws.1 to 17 and got marked Exs.P1 to P18 and M.Os.1 to 4.
8. After the closure of Prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against him in the evidence of the prosecution witnesses, to which, he denied. However, he did not adduce any oral evidence except marking Ex.D1 to D.3 on his behalf. Basing on the evidence of P.Ws.1 and 2 and the Two Dying Declarations, which are placed as Exs.P11 and P15, the learned Sessions Judge convicted the accused. Against which, appellant/accused preferred the present appeal.
9. Sri Mastan Naidu Cherukuri, learned Senior Counsel, appearing for the appellant would contend that the Two Dying Declarations which are relied upon by the prosecution are inconsistent with each other and they cannot be made the basis to convict the accused. 8
CPK, J & BVLNC, J Crl.A.No.426 of 2015 According to him, a plain reading of Ex.P15 would indicate that the accused was not present in the house at the time of the incident and on hearing the cries, he along with the others rushed in to the house, put off the flames and then shifted the injured to the hospital. In other words his argument appears to be that the contents of Ex.P15 indicate that the deceased herself poured kerosene and set her on fire. According to him, in the Dying Declaration recorded by the P.W.12-Magistrate, the version came to be changed after the arrival of parents at the scene. In Ex.P11 recorded by the Magistrate, it was stated as if the accused poured kerosene and set the injured on fire. He further submits that even the evidence of P.Ws.1 and 2 does not establish any harassment for or in connection with any property, and as such, the trial Court was in error in convicting the accused under Section 498-A I.P.C. He took us through the record and also referred to the judgment in P. Mani vs. State of Tamil Nadu1 in support of his plea.
10. Sri S. Dushyanth Reddy, learned Additional Public Prosecutor, for the Respondent/State would submit that 1 (2006) 3 SCC 161 9 CPK, J & BVLNC, J Crl.A.No.426 of 2015 there is no reason to disbelieve the two Dying Declarations, more particularly, the one recorded by the Magistrate, more so in the absence of any suggestion given to him with regard to his motive to implicate the accused. The learned Additional Public Prosecutor would contend that even if there is any inconsistency in the two Dying Declarations, one that inspires confidence and more particularly the one recorded by the Magistrate can be made the basis to convict the accused. He further submits that the evidence of P.Ws.1 and 2 would show that there was harassment and ill-treatment which lead to conducting mediations and as such the conviction under Section 498-A I.P.C is proper and correct.
11. The point that arises for consideration is, whether the prosecution was able to bring home the guilt of the accused beyond reasonable doubt for the offences punishable under Section 498-A & 302 I.P.C.?
12. As stated earlier, the entire case now rests on the evidence of P.Ws.1 and 2 and the two Dying Declarations recorded by the Head Constable and the Magistrate which 10 CPK, J & BVLNC, J Crl.A.No.426 of 2015 are placed on record as Ex.P15 and Ex.P11 respectively. It is also to be noted here that the statement recorded by P.W.15-then Head Constable was made the basis for issuance of the F.I.R. Apart from the two Dying Declarations, the evidence of P.Ws.1 and 2 is also relied upon by the prosecution to show the alleged acts of harassment.
13. P.W.1, who is the mother of the deceased, in her evidence states that after marriage of the accused and the deceased on 20.06.2008, both of them lead a marital life for some time and thereafter the accused who got addicted to alcohol, started abusing and beating the deceased. Unable to bear the same, the deceased came to her parents' house, pursuant to which, mediations were held, wherein, the accused promised to take care of the deceased, but however, there was no change in his behaviour.
14. On 18.01.2011 at about 2.50 p.m. the deceased is said to have called P.W.1 and informed about accused abusing her and an hour later they came to know about 11 CPK, J & BVLNC, J Crl.A.No.426 of 2015 the admission of the injured in the hospital and accordingly they proceeded to the Government General Hospital, Nagiri. When enquired, she is alleged to have disclosed about the accused pouring kerosene on her and setting her on fire, and thereafter she was shifted to SVRRGG Hospital, Tirupati. P.W.1 was subjected to cross- examined, wherein, it was stated that the deceased stayed for an hour in Nagiri Hospital and thereafter she was shifted to Tirupati, where P.W.1's statement was recorded. She further states that she accompanied the deceased from Nagiri to Tirupati in Ambulance and that the deceased was conscious at that time. To a suggestion that the deceased was having an illegal contact with one Amrutha Raj of Nagiri and when the accused came to know about the same, she committed suicide was denied by P.W.1.
15. P.W.2 is the father of the deceased. His evidence is identical to the evidence of P.W.1 in all aspects. His evidence also refers to the oral Dying Declaration made by the deceased in Nagiri Hospital. P.W.2 was also cross- examined at length, wherein he admits that at 3.15 p.m. itself he came to know that the injured was admitted in 12 CPK, J & BVLNC, J Crl.A.No.426 of 2015 Government Hospital, Nagiri with burnt injuries. At about 4.00 p.m. they reached the hospital. According to him, the deceased was conscious. At around 6.00 or 6.30 p.m. she was shifted to Tirupati. He denied all other suggestions given with regard to the manner in which the incident happened and the involvement of the accused. But, however, P.W.15 the Investigating Officer, who examined P.Ws.1 and 2 during the course of investigation, admits in his cross-examination that certain facts were not disclosed by both the witnesses in their earlier statements, the same are, as under:-
"It is true that P.Ws.1 and 2 not stated before me that deceased telephoned and informed them that the accused harassing and beating her. It is true that P.Ws.1 and 2 stated before me that the deceased talk to them on 18.01.2011 regarding Sankranthi festival. It is true that Sankranthi festival was over by 15.01.2011. It is true that P.Ws.1 and 2 not stated before me as to who informed them about the admission of the deceased in to the hospital with burn injuries. It is true that P.Ws.1 and 2 not stated before me that the accused harassed the deceased after mediation before elders upto 18.01.2011. it is true that P.Ws.1 and 2 not stated before me that they having came to know about the incident went to the house of accused and enquired them and came to know that deceased was taken to hospital."13
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16. Though, there are certain omissions in the earlier statements of P.Ws.1 and 2, but in our view these omissions in the earlier statements may not be of much help to the accused in so far as the death of the injured is concerned. Their evidence show that on receipt of information, they proceeded to the house of the accused and from there to the hospital at Nagiri where the deceased disclosed the manner in which the incident occurred.
17. The first question is, whether the two Dying Declarations made by the deceased are consistent and whether they can be accepted?
18. The evidence of P.W.15 discloses that on receipt of information from the hospital, he proceeded to the hospital and recorded the statement [Ex.P15] of the injured. A perusal of Ex.P15 statement would show that on the fateful day at 3.00 p.m. her mother-in-law went to Nagiri on some work and her father-in-law was infront of the house along with the accused. At that time, while the injured was talking to her mother over phone from kitchen, her husband Elumali came to her and abused her, stating as 14 CPK, J & BVLNC, J Crl.A.No.426 of 2015 "Ye prostitute with which paramour you are talking". She replied to him stating that if he again harasses her, she will go to her parents' house. It is said that her husband got angry stating that he will burn her by pouring kerosene if she will go to her parents' house again. So saying, the accused took a poured kerosene on her body and set her on fire with a match stick, as a result of which, she sustained burnt injuries. She further states that on hearing her cries, her husband and surrounding people came there and put off the flames. Her father-in-law called for 108 Ambulance and admitted her in Government Hospital, Nagiri.
19. Basing on the last portion of the statement, wherein, the deceased states that on hearing her cries, her husband and surrounding people came there and put off the flames, learned Senior Counsel would contend that it was a case of suicide and that the accused has been falsely implicated. He further submits that since the accused came and put off the flames, one cannot infer that he had an intention to 15 CPK, J & BVLNC, J Crl.A.No.426 of 2015 cause the death of the injured even assuming that the accused was present and set the deceased on her.
20. The next statement of the deceased is recorded by P.W.12-Magistrate, which is placed on record as Ex.P11. A reading of the same would show that initially the learned Magistrate obtained the certificate of the doctor and on being satisfied that the injured was fit to make a statement, proceeded to record the statement, a very cryptic one, wherein the deceased stated that her husband picked up a quarrel with her and beat her. She further states to her husband that if he does this she will do anything. On that, her husband poured kerosene, set her on fire and went away. According to her, the deceased husband is responsible for the same.
21. Though, the learned Senior Counsel tried to contend that there is inconsistency in the two Dying Declarations with regard to accused coming and putting off the fire, at first blush it appeared to be very impressive, but a close perusal of the two Dying Declarations does not anywhere indicate the same. In the first Dying Declaration recorded 16 CPK, J & BVLNC, J Crl.A.No.426 of 2015 by P.W.15, the deceased categorically stated about the accused poured kerosene and set her on fire. But the learned Senior Counsel taking advantage of that portion of the statement, which states that the accused and some neighbouring people came there on hearing cries and put off her flames, argued that it was a case of suicide and that the said version is not there in Ex.P11. But, it is to be noted that a reading of the vernacular version of the said statement [Ex.P11], would show that her husband [Elumalai] "poured kerosene, set her on fire and then left the place."
22. Therefore, a reading of the two Dying Declarations would clearly indicate that accused poured kerosene, set the deceased on fire and then left the place. After hearing the cries, he along with other neighbours came there and put off the flames. By this, it cannot be said that there was any inconsistency in the two Dying Declarations. At this stage, it is also to be noted that this version of the deceased gets ample corroboration from the evidence of P.Ws.1 and 2 as well, who met the deceased in the hospital 17 CPK, J & BVLNC, J Crl.A.No.426 of 2015 at Nagiri, wherein, she disclosed about the commission of the offence by the accused. Though, an argument is sought to be advanced that the oral Dying Declaration is an outcome of tutoring because P.W.1 accompanied the deceased in the Ambulance to Tirupati, but, as observed by us earlier, even in the oral Dying Declaration made by the deceased before P.Ws.1 and 2 and before P.W.15, she speaks about the incident in the manner narrated in the Dying Declarations. Therefore, the argument that these Dying Declarations are an outcome of tutoring cannot be accepted. Hence, we see no grounds to disbelieve the written Dying Declaration, the oral Dying Declaration and the evidence of P.Ws.1 and 2 to connect the accused with the incident in question.
23. At this stage, learned Senior Counsel would contend that having regard to the conduct of the accused in trying to put off the flames along with others, pleads for scaling down of the offence. He relied upon a judgment of Hon'ble apex Court in Kalabai vs. State of Madhya Pradesh2. The facts in the said case are totally different. It was a case 2 (2019) 20 SCC 502 18 CPK, J & BVLNC, J Crl.A.No.426 of 2015 where the appellant in the said case was the sister-in-law of the deceased. On 20.08.1999, late evening, a quarrel ensured between one Lalita Bai and her husband Vijay Singh. During the said quarrel, the appellant who lives in the ground floor came to the first floor, where Lalita Bai was boiling milk on a stove, and threw the burning stove on the deceased, due to which the clothes of the deceased caught fire and caused serious burn injuries. The husband of the deceased who was there shifted the injured to the M.Y. hospital, Indore. Under those circumstances, the Hon'ble Supreme Court scaled down the offence from Section 302 to Section 304 Part-II mainly on the ground that the appellant had no intention but had knowledge that such an act may cause the death of the deceased.
24. The learned Senior Counsel further submits that if really the intention of the accused was to cause the death of the deceased, he would not have made an effort to put off the flames and his father also would not have called for an Ambulance. The fact that there were some disputes earlier which lead to mediations is not in dispute. It is also 19 CPK, J & BVLNC, J Crl.A.No.426 of 2015 not in dispute that half an hour prior to the incident, the deceased called P.W.1 over phone and informed about the harassment made by the accused. After talking with P.W.1 over phone, the accused came inside and addressed her as prostitute and questioned her stating "with which paramour she is talking" when she replied to him that if he harasses her again, she will go to her parents' house, the accused poured kerosene and set her on fire. The accused left the place and came back on hearing the cries. If really, the intention of the accused was to put off the flames, his act would be immediately not after the arrival of the neighbours at his house. Only to prove his innocence, he might have made an effort along with the neighbours who came there on hearing the cries of the deceased. Therefore, we feel that it is not a case to hold that the conduct of the accused indicate only knowledge and no intention to cause death.
20
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25. In the result, the appeal fails and it is accordingly dismissed, confirming the judgment, dated 18.03.2015, in Sessions Case No.205 of 2011 on the file of learned Special Judge cum-IV-Additional Sessions Judge, Tirupati.
Consequently, miscellaneous petitions, if any, pending shall stand closed.
_______________________________ JUSTICE C. PRAVEEN KUMAR ____________________________________ JUSTICE B.V.L.N. CHAKRAVARTHI Date: 25.11.2022 MS 21 CPK, J & BVLNC, J Crl.A.No.426 of 2015 THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR AND THE HON'BLE SRI JUSTICE B.V.L.N. CHAKRAVARTHI CRIMINAL APPEAL NO.426 OF 2015 (Order of the Court) DATE: 25.11.2022 MS