Andhra Pradesh High Court - Amravati
Tellakula Timmaiah, Kurnool Dist. vs State Of A.P., Rep. By P.P., Hyd on 15 June, 2020
Author: C.Praveen Kumar
Bench: C.Praveen Kumar, R Raghunandan Rao
HON'BLE SRI JUSTICE C.PRAVEEN KUMAR
AND
HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO
Criminal Appeal No.59 of 2014
JUDGMENT :(Per the Hon'ble Sri Justice C.Praveen Kumar)
1. The sole accused in Sessions Case No.592 of 2012 is the appellant herein. He was tried for the offences punishable under Sections 498-A and 302 I.P.C. By its judgment dated 26.3.2013, the learned III Additional Sessions Judge, Kurnool at Nandyal convicted the accused under both the counts and sentenced him to suffer simple imprisonment for a period of 3 years and to pay a fine of Rs.100/-, in default, to suffer Simple Imprisonment for a period of one month for the offence punishable under Section 498-A I.P.C. and he was also found guilty and sentenced to suffer imprisonment for life and to pay a fine of Rs.100/-, in default, to suffer Simple Imprisonment for a period of one month for the offence punishable under Section 302 I.P.C. The substantive sentences were directed to run concurrently.
2. The gravamen of the charge against the accused is that the accused, who is the husband of the deceased, is said to have caused the death of his wife on 22.8.2012 at about 6.00 AM by setting fire to the saree of the deceased with an 2 intention to kill her, as his wife was not fulfilling his sexual desire.
3. The facts, as culled out from the evidence of the prosecution witnesses, are as under :
P.W.1 is the mother of the deceased, while P.W.2 is the sister of the deceased. P.W.3 is the brother of P.W.1 and deceased is his nephew. All other material witnesses are residents of Moolasagaram, Nandyal. It is said that the marriage of the deceased Adi Lakshmi was performed with the accused about 10 days prior to the occurrence. After marriage, the deceased joined the company of the accused. On the very first day of the marriage, the accused is said to have consumed alcohol and quarrelled with his wife. Since then, quarrels ensued between both of them. When P.W.1 came to know about the relationship between them, she is said to have chastised and convinced them to adjust themselves and lead a happy marital life. On 21.8.2012, in the night, there was an altercation between the accused and the deceased and after quarrel, the accused went on to the terrace. Sometime thereafter, the deceased went on to the terrace and requested the accused to come down for sleeping in the house. The accused came down and switched on the television. The deceased said to have asked the accused to reduce the volume of the T.V., for which, the accused 3 informed the deceased to sleep in a room and expressed his angriness towards his wife. The deceased went into another room and slept there. On the next day morning at about 6 AM, while the deceased was in sleep, she sensed heat at her toe; got up; noticed fire to her saree and raised cries. On hearing the cries of the deceased, the parents of the accused came towards the deceased and shifted her to Government Hospital, Nandyal, for treatment. On coming to know about the incident, P.W.1 rushed to her daughter where she alleged to have informed that the accused set her on fire.
4. On 22.8.2012 at 6.40 AM, P.W.8 - Civil Assistant Surgeon, examined the injured and issued Ex.P5 - wound certificate. The Doctor assessed the burns at 50% to 60% and grievous in nature. According to him, the burns were due to pouring of kerosene or petrol.
5. On 22.8.2012, P.W.14 - A.S.I., Nandyal III Town Police Station, received intimation about the admission of the injured Adi Lakshmi in the Hospital. Ex.P11 is the said intimation. On receipt of the said intimation from the Hospital, P.W.14 proceeded to the hospital and identified the injured in the burns ward and recorded her statement, which is placed on record as Ex.P12. Thereafter, he returned back to the Police Station and registered a case in crime No.87 of 2012 under Sections 498-A and 307 I.P.C. Ex.P13 is the 4 original F.I.R. He then proceeded to the Government Hospital, Nandyal, examined the victim-deceased and P.W.2 and recorded their statements. He also proceeded to the scene of offence and in the presence of P.Ws.4 and 5, prepared a panchanama of the scene and also a rough sketch of the scene. Ex.P14 and P15 are the said proceedings respectively. At the scene, he seized M.Os.1 and 2, which are the clothes of the deceased.
6. On 22.8.2012 at about 7.30 AM, P.W.11 - Principal Junior Civil Judge, Nandyal, received an intimation from the Hospital vide Ex.P6 about the admission of the injured in the Hospital and for recording dying declaration. He then proceeded to the Government Hospital, Nanyal, identified her with the help of the staff and after being satisfied with regard to the mental condition of the deceased by putting preliminary questions in the presence of the Medical Officer, recorded her statement, which is placed on record as Ex.P7.
7. On 7.10.2012 at about 11.30 AM, S.I. of Police, III Town Police Station informed P.W.9 about the death of the injured; basing on which, he altered the section of law from Section 307 to 302 and accordingly instructed the S.I. of Police to send a requisition to the M.R.O., Nandyal, to conduct inquest over the dead body of the deceased, as the incident occurred within 7 years of the marriage. On the basis of the 5 requisition received, P.W.7 - Mandal Executive Magistrate, conducted inquest over the dead body, in the presence of P.W.6 and others. Ex.P4 is the inquest report. During inquest, he examined P.Ws.1, 2 and others and recorded their statements. After completing the inquest proceedings, the dead body was sent for the post-mortem examination. P.W.12 - Civil Assistant Surgeon, District Hospital, Nandyal, conducted autopsy over the dead body on 7-10-2012 at 3.30 PM and issued Ex.P8 - Post-mortem Report. According to him, the cause of death was due to septicemic shock due to burns.
8. After collecting all the necessary documents, a charge- sheet came to be filed, which was taken on file as P.R.C. No.61 of 2012, on the file of the Judicial Magistrate of First Class, Nandyal. On appearance of the accused, copies of the documents as required under Section 207 Cr.P.C. were furnished. Since the offence is triable by Court of Sessions, the same was committed under Section 209 Cr.P.C. On appearance, charges as referred to earlier, came to be framed, read over and explained to the accused, who denied the same.
9. In support of its case, the prosecution examined P.Ws.1 to 14 and got marked Exs.P1 to P15. After completion of the prosecution evidence, the accused was examined under 6 Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses to which he denied. None were examined on behalf of defence, except marking Exs.D1 to D3. Relying upon the dying declaration recorded by the Magistrate and also the Sub-Inspector of Police, which are found to be consistent, learned Sessions Judge convicted the accused under Section 498A I.P.C. and Section 302 I.P.C. Challenging the same, the present appeal is filed.
10. Learned counsel for the appellant would contend that except the two dying declarations, there is no other evidence on record to connect the accused with the crime. According to her, the incident in question took place on 22.8.2012 and subsequent to the treatment taken in the Hospital, the deceased was discharged from the Hospital and thereafter, she died in her house. In view of the fact that the death was due to septicaemia, the learned counsel would contend that the conviction of the accused under Section 302 I.P.C. is improper and incorrect. She would further contend that even in the dying declaration recorded by the Magistrate, the deceased did not say that it was the accused who set her on fire. She only expressed suspicion against the accused. It is further urged that if really the accused was responsible for the incident, definitely he would not have put off the flames, 7 opened the door and allowed his parents to shift the deceased to the hospital for treatment. In view of the above and having regard to the fact that the deceased died nearly 45 days after the incident, pleads for scaling down of the offence.
11. The same is opposed by the learned Public Prosecutor contending that the dying declarations coupled with the oral evidence of P.Ws.1 and 2 amply establish the involvement of the accused in the crime. He took us through the two dying declarations and oral evidence of the witnesses to show the culpability of the accused in the commission of the offence.
12. The short 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 Sections 498-A and 302 I.P.C.?
13. Coming to the major offence viz., Section 302 I.P.C., it is to be noted that the deceased sustained burn injuries in a room where both the accused and the deceased were together. It is not the case of the accused that he was not present in the room on that day. It has come on record that there was a quarrel on the previous date night when the deceased wanted the accused to reduce the volume of the TV. The first dying declaration, which was recorded by the Police Officer, which formed the basis of the First Information 8 Report, categorically show that at about 6.00 AM on 22.8.2012, the deceased, while sleeping, felt some heat at her legs. When she opened the eyes, noticed her saree in flames and the flames were raising towards her. When she raised cries, her husband pulled her burning saree and put off the flames. Thereafter, her husband opened the doors, pursuant to which, her in-laws came into the room.
14. From the dying declaration referred to above it is clear that the deceased sustained burn injuries, her husband put off the flames and then brought her to Government Hospital, Nandyal, in an auto for treatment. It is said that as she failed to give marital happiness to her husband, he, with an intention to kill, set her on fire. This dying declaration, which is recorded by the police official, was made the basis to set the law into motion.
15. Coming to the dying declaration recorded by the Magistrate, the same is placed on record as Ex.P7. The mode and manner in which it was recorded is not in dispute. It would show that the marriage of the deceased with the accused took place about two weeks ago. After marriage, they were cordial for two days. Later, the husband used to come home daily in a drunken condition and pick up a quarrel. It is said that the accused used to quarrel as she did not give him marital happiness. Her senior aunt and uncle 9 came and pacified both of them, but to no avail. On 21.8.2012, the accused quarrelled with her. Till 2.00 AM, the accused did not sleep and the deceased also did not sleep. It is said that the deceased went to sleep at 3.00 AM and thereafter into a deep sleep. At about 6.00 AM she felt heat and when opened her eyes, she found her saree in flames. On hearing her cries, her husband came; put off the flames and opened the door. Thereafter, her in-laws changed her clothes and took her to the hospital. Her in-laws and others looked after her well. The deceased suspected the accused as responsible for the incident. According to her, except she and her husband, there was no one in the room.
16. From the two dying declarations referred to above, it can be said that both are consistent with each other. Though the deceased did not say as to how the accused set her on fire, but fact remains that both of them were in the room when the incident in question took place. In fact, the comment made by the learned counsel for the appellant that there is a possibility of the deceased coming into contact with the lamp cannot be accepted for more than one reason. First of all, such a plea was never taken and secondly, the accused never came forward with any such explanation in his Section 313 Cr.P.C. examination. The accused failed to explain as to how the deceased with whom he was sleeping in a room 10 sustained burn injuries. Therefore, the finding of the trial court that the accused is responsible for the incident in question cannot be found fault with.
17. At the same time, the conduct of the accused after the incident requires to be noted. The two dying declarations, more particularly the one recorded by the Magistrate would show that on hearing her cries, the husband put off the flames, opened the door and thereafter took her to the hospital. If really he had an intention to cause death, he would not have tried to put off the flames and then take her to the hospital.
18. Apart from that, the evidence on record show that the incident in question took place on 22.8.2012 and the deceased died on 7.10.2012. According to Post-mortem Doctor, the cause of death was due to septicemic shock due to burns. It would be useful to refer to the cross-examination of the Doctor, which is as under :
"As per the letter dated 7.10.2012 given by the Mandal Executive Magistrate it is noted in column No.2 that the injuries on the body are healed. The witness adds that superficial crust formation there, but underneath in it suppurative injuries were there. Ex.P9 is the letter dated 7.10.2012 given by the Mandal Executive Magistrate."
19. Further, P.W.2, in her cross-examination, admits that the Doctors discharged the deceased from the Hospital as the 11 all wounds were healed, but, however, went back saying that she was not discharged by the Doctors. It is useful to extract the relevant portion, which is as under :
"It is true that the Doctors discharged her from the Hospital as the all wounds were healed. Again the witness says that she was not discharged by the Doctors."
20. From the evidence referred to above, two things would emerge; (1) P.W.2, who is the sister of the deceased, in one breath deposed that the deceased was discharged from the Hospital as the wounds were healed, but, immediately went back saying that the Doctors did not discharge her and (2) the evidence of the Post-mortem Doctor shows that the wounds were healed and the death was due to septicemic shock.
21. In Ranjan C. George v. State of Kerala (Crl.A.No. 497 of 2013, dated 09.10.2018), the Hon'ble High Court of Kerala, after referring to the decision of the Supreme Court in Virsa Singh v. State of Punjab [AIR 1958 SC 465] held as under:
"Therefore, when sufficient materials are available to the case to arrive at a conclusion that the death of the victim was due to septicemia which has developed on account of the burn injuries, it is ideal for the accused to contend that the case Crl. Appeal No. 497 of 2013 will not fall under Section 302 IPC."12
22. In Maniben v. State of Gujarat1, the Apex Court was dealing with a case where, on 29.11.1984, while the deceased was returning home with a pot of water on her head and her daughter on her waist, the appellant set her on fire with a burning wick made of rags. Consequent to which, the deceased suffered burn injuries and succumbed to those injuries on 07.12.1984, while taking treatment in the hospital. The deceased was admitted with 60% burn injuries and during the course of treatment developed septicemia leading to death on 07.12.1984. Having regard to the above and taking into consideration the quarrel that ensued earlier with the appellant, the Apex Court altered the conviction from 302 IPC to 304-II IPC.
23. In Sanjay and Others v. State of Uttar Pradesh2, the Apex Court dealt with a case where the deceased died 62 days after the occurrence due to septicemia and it was indirectly due to the injuries sustained by the deceased. The cause of death was septicemia. In the said case, the deceased was operated upon and later discharged from the hospital in good condition. Under the said circumstances, the conviction was altered.
1 AIR 2010 SC 1261 2 2016(3) SCC 62 13
24. In Ganga Dass alias Godha v. State of Haryana3, the accused gave a single blow on the head with an iron pipe. The deceased died 18 days later due to septicemia and other complications. The conviction was altered from 302 IPC to 304-II IPC.
25. In the light of the judgments referred to above; the conduct of the accused after the incident; the evidence of the Postmortem Doctor vide Ex.P8 report, which shows that death was due to septicemic shock due to burns, which was nearly 45 days after the incident; the evidence of P.W.2 that the deceased was discharged as the wounds were healed, we feel that the offence punishable under Section 302 I.P.C. under which the accused was convicted by the trial Court may not be correct and the same shall be altered to Section 304 Part-II I.P.C. and accordingly the sentence of imprisonment for life imposed on the appellant is hereby modified to Rigorous Imprisonment for seven years, while maintaining the conviction and sentence under Section 498-A I.P.C.
26. With the above modification, the Criminal Appeal is partly allowed.
3 1994 Supp(1) SCC 534 14 As a sequel, Miscellaneous Petitions, if any pending, shall stand disposed of as infructuous.
_________________________ C. PRAVEEN KUMAR, J.
___________________________ R.RAGHUNANDAN RAO, J.
Date : 15.6.2020 skmr