Andhra HC (Pre-Telangana)
Vedde Jaripati Mallikarjuna vs The State Of A.P. Represented By Its ... on 17 February, 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 Criminal Appeal No.1315 of 2009 17-02-2014 Vedde Jaripati Mallikarjuna ...appellant The State of A.P. represented by its Public Prosecutor...Respondent Counsel for appellant: Sri T.S. Rayalu Counsel for Respondent : Public Prosecutor <GIST: >HEAD NOTE: ?Cases referred 1998 CRI.L.J. 2061 THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY AND THE HON'BLE SRI JUSTICE M.S.K.JAISWAL Criminal Appeal No.1315 of 2009 JUDGMENT:
(Per the Hon'ble Sri Justice L.Narasimha Reddy) This appeal is filed assailing the judgment, dated 03.03.2009, passed by the Court of IV Additional Sessions Judge, (Fast Track Court), Anantapur, in S.C.No.478 of 2006. The sole accused was tried for the offences punishable under Sections 498-A and 302 I.P.C. The trial Court convicted the accused for the offence punishable under Section 302 I.P.C. and imposed punishment of imprisonment for life in addition to fine of Rs.500/-. The accused was acquitted of the offence punishable under Section 498-A I.P.C.
The case of the prosecution as presented before the trial Court was that the accused was married to the deceased in the year 1999 and out of their wedlock, a male and a female children were born. It was alleged that the accused had illicit intimacy with one Mahadevi of Ballari and in his attempt to bring that woman also to his home, he was insisting that the deceased must not raise any objection. It was stated that the accused has indiscriminately beaten the deceased on several occasions, by consuming alcohol.
The deceased was admitted in Government Area Hospital, Guntakal, with serious burn injuries at about 4.00 P.M., on 06.02.2006. The officials of the hospital issued requisition to the Judicial First Class Magistrate, Guntakal and intimation to the police. Before PW.11 reached the hospital, the Head Constable of P.S. Guntakal, recorded the statement of the deceased, marked Ex.P.14. Soon thereafter, PW.11 arrived, and he recorded the dying declaration, marked as Ex.P.11. Almost simultaneous requisition was given for recording statement of the accused also by the authorities of the same hospital, since injuries were noticed on his body, also. His statement was recorded by PW.11 as Ex.P.12.
Based upon the information received by them, the police registered Crime No.7 of 2006, alleging the offence under Section 498-A I.P.C., against the accused. The deceased succumbed to injuries at 7.45 P.M., on the same day. Thereupon, the provision of law was changed, in the F.I.R.
The police arranged for preparation of the scene of offence panchanama, caused inquest and post-mortem and recorded the statements of various persons, who are said to be acquainted with the facts of the case. After completion of the investigation, the charge sheet was filed by PW.15. The trial Court framed necessary charges against the accused. PWs.1 to 15 were examined by the prosecution and Exs.P.1 to P.19 were filed. M.O.1, one plastic can, was also taken on record. The result of the sentence has already been indicated in the preceding paragraphs.
Sri M.Karibasaiah, learned counsel for the accused, submits that the trial Court based its findings only on the dying declarations, marked as Exs.P.1 and P.14, though they were not corroborated by any other evidence. He contends that almost all the non-official witnesses examined before the trial Court, except PWs.6 and 7, the father and maternal uncle of the deceased, turned hostile and still the accused was held guilty of the offence. Learned counsel further submits that the very method of recording of Ex.P.11, by PW.11 - Magistrate, was shown to be not in accordance with law, and in that view of the matter, the same cannot be taken into account. As regards Ex.P.14, he submits that necessary precautions were not taken before recording it and even that deserves to be omitted from consideration.
Learned Public Prosecutor, on the other hand, submits that Ex.P.11 was recorded by the learned Magistrate, duly following the prescribed procedure and from a perusal thereof, it is evident that the deceased categorically stated that the accused poured kerosene and set her on fire. She contends that the motive suggested to the accused, both by the deceased and PW.7 is common and the statement recorded from the accused in the form of a dying declaration - Ex.P12, does not at all support his case. It is urged by PW.7, in his deposition in the Court and the deceased through Ex.P.11 stated that the accused was having illicit relationship with a woman at Ballari and he was continuously pestering the deceased not to object for the lady, who is brought to his home. She contends that PW.7 has referred to the panchayats being held in this behalf and no serious cross-examination was made on behalf of the accused in relation thereto.
The point that arises for consideration is, as to, whether the conviction and sentence ordered by the trial Court against the accused can be sustained in law and on facts?
This is a typical case where the accused and the victim have been admitted into the hospital with burn injuries and dying declarations were recorded, simultaneously. Though the incident is said to have occurred around 4.00 P.M., in the broad day light, in the midst of the residential locality, there was no eyewitness to the incident. The entire case rests upon the circumstantial evidence.
The relationship between the accused and the deceased is not disputed. Out of their wedlock, two children were born. PW.7, the father of the deceased, stated that his daughter used to complain on several occasions that the accused was having illicit relationship with one woman at Ballari and that under the influence of intoxicants, he indiscriminately used to beat the deceased. Panchayats were said to have been held on five or six occasions, and that the accused was admonished.
The prosecution has the first hand information about the occurrence of the incident in the form of two dying declarations; one recorded by a Head Constable examined as PW.14, and another by the Magistrate-PW.11. There is no inconsistency between these two declarations. In both of them, she stated that the accused poured kerosene and set her on fire, she tightly held him, and in the process, the accused also received burn injuries. She further stated that he took alcohol on that day and the kerosene was removed from the stove. To a question as to whether there are any disputes between them, the deceased answered that the accused was having illegal contacts with one woman and he used to beat her. In answer to a question about the involvement of others in the family, she stated that other members used to look after her well and there is no participation of anyone in the incident. At the end, she said that the accused is a big thief, is a cruel man, and he used to beat her daily and that he had no affection towards herself and children. Ex.P.14 is brief in content and it is almost to the same effect.
Before the trial Court as well as this Court, extensive arguments were advanced to discredit Ex.P.11, mainly on the ground that PW.11 did not take precautions that are required under law. One such is about the alleged absence of certification by the Doctor-PW.12. The second contention is about the taking of thumb impression of the deceased. According to the accused, when the deceased has received 95 to 97% burn injuries, the question of her thumb being in a position to be used for impression, does not arise. Reliance is placed upon the judgment of the Supreme Court in State of Punjab v. Gian Kaur1, wherein the deceased suffered 100% burn injuries and a finding was recorded to the effect that the entire body was burnt beyond any scope of recognition.
As regards the first contention, we have perused the original record to find out whether PW.11 has taken the opinion of PW.12 before he proceeded to record the statement of the deceased. The Doctor has certified the condition of the deceased to be fit to depose and in a position to understand the question. It is only on being satisfied about the condition of the patient that, PW.11 proceeded to record the statement. From a statement made by him in the chief- examination that by the time he reached the hospital, the Nurse alone was by the side of the deceased, it was sought to be urged that the presence of PW.12 is improbable. It is not uncommon that the Doctors would be on rounds, having attended to the serious patients and they come to a particular patient, in the context of certifying the condition of the patient, for recording of the dying declaration, after the Magistrate or the official, as the case may be, arrived. The law does not require that by the time, the Magistrate arrives for recording the statement, the Doctor must be physically present there. All the same, the original of Ex.P.11 discloses that not only at the threshold of recording of the statement, but also at the end in the context of taking thumb impression, PW.12 certified the deceased to be in fit condition. Therefore, the first objection raised on behalf of the accused cannot be sustained.
So far as the second objection is concerned, heavy reliance is sought to be placed upon an observation made by PW.12, at the end of the cross-examination. PW.10, is the Doctor conducted the prost-mortem. Obviously in reply to a question, he observed as under:
"It is true ridges and curves in thumbs will be disappeared when they are burnt."
It is no doubt true that a suggestion was made to PW.12, the Doctor, who was present when Ex.P.11 was recorded about the burnt injuries to the fingers of the deceased. However, it was not suggested to PW.12 that the burn injury to the thumb is so severe that the impression thereof cannot be taken. It must not be ignored that the incident occurred at 4.00 P.M., and the recording of the statement commenced at about 5.30 P.M. The deterioration, on account of burn injuries, starts, after some time. Though the thumbs were also burnt, they were not mutilated by 5.30 P.M., to such an extent that the impressions thereof cannot be taken. At any rate, law does not discredit the dying declaration, simply because the person from whom it was recorded is not capable of putting his thumb impression, particularly when the statement is recorded by the Magistrate.
The fact that the accused has also received severe burnt injuries is an important aspect, which needs to be taken note of. In his statement, Ex.P.12, recorded by PW.11, the accused stated that the deceased poured kerosene upon herself and when he made an attempt to douse that fire, he too received injuries. Once the person from whom the statement was recorded, survived, the statement looses its significance and at the most, it can be treated as a statement under Section 161 Cr.P.C. Another phenomenon of law comes into play, particularly when the person from whom such statement is recorded is none other than the accused. The limited purpose for which we have referred to that is only to understand the circumstances, under which the accused has received burn injuries, which of course is a matter of record.
If one takes into account, the specific statement made by the deceased under Ex.P.11 that after the accused poured kerosene and set her on fire, she held firmly and in the process, the accused received burn injuries, the case tends to move towards the proof.
PW.7, the father of the deceased, gave a detailed account of the relationship between his daughter and the accused. He stated that the deceased complained to him number of times that the accused used to beat her after consumption of alcohol frequently, almost everyday and that his dissatisfaction was on account of her not giving consent for the accused to bring one Mahadevi of Ballari. Though PW.7 was cross-examined at length, nothing was elicited to distrust his version. Much is sought to be projected, on the ground that PWs.1 to 5, who included the mother of the accused (PW.1), turned hostile. Had there not been any clinching evidence like the dying declaration, this Court would have certainly taken the factum of PWs.1 to 5 turning hostile, into account. Not only there exists two consistent dying declarations, but also they are corroborated by the evidence of PWs.6 and 7.
The trial Court has analyzed the oral and documentary evidence before it thoroughly and has arrived at a just and proper conclusion. Every step in the prosecution has taken place in accordance with law and the prosecution was able to establish a full set of circumstances that would lead to an inevitable conclusion that the accused caused the death of the deceased by pouring kerosene and setting her on fire with a clear intention to kill her. We do not find any ground to interfere with the judgment of the trial Court.
The appeal is accordingly dismissed.
The miscellaneous petition filed in this appeal shall also stand disposed of.
___________________ L.NARASIMHA REDDY, J.
_______________ M.S.K.JAISWAL, J.
Dated:17.02.2014