Andhra Pradesh High Court - Amravati
Appikonda Naga Dharmalinga Mahesh, vs The State Of Rep.By Pp., on 3 March, 2023
HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
CRIMINAL APPEAL No.935 OF 2010
JUDGMENT:
This Criminal Appeal, under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, „the Cr.P.C‟), is filed by the appellant, who was the accused in Sessions Case No.80 of 2009, on the file of the Court of IV Additional District and Sessions Judge, Visakhapatnam (for short, „the learned Additional Sessions Judge‟), challenging the judgment, dated 26.07.2010, where under the learned Additional Sessions Judge found the accused guilty of the offence under Section 304-B of the Indian Penal Code, 1860 (for short, „the IPC‟), convicted him under Section 235(2) Cr.P.C and, after hearing about the quantum of sentence, sentenced him to suffer Rigorous Imprisonment for ten (10) years.
2. The parties to this Criminal Appeal will hereinafter be referred to as described before the trial Court, for the sake of convenience.
3. The Sessions Case No.80 of 2009 on the file of the Court of learned Additional Sessions Judge arose out of PRC No.17 of 2009 on the file of the Court of Additional Judicial First Class Magistrate, Yellamanchili (for short, „the learned Magistrate‟) 2 AVRB,J Crl.A. No.935/2010 pertaining to Crime No.2 of 2009 of Rambilli Police Station, which was committed to the Court of Session.
4. The case of the prosecution, in brief, according to the averments in the charge sheet, filed by the State, represented by the Assistant Superintendent of Police, Narsipatnam, Sub- Division, Narsipatnam in the above Crime, is as follows:
The accused is a resident of Darabhogapuram Village of Rambilli Mandal and he is a Tailor. One Appikonda Nagamani (for short, „the deceased‟), daughter of Anakapalli Venkata Ramana, was married to the accused on 18.03.2006 according to their caste custom at Dharabogapuram village. LW.1 - A. Venkata Ramana and LW.2 - A. Satyavathi are the father and mother and LW.3 - Anakapalli Siva is the brother of the deceased. Both the accused and deceased lived happily for about two years. After the marriage, they were not blessed with any children. Accused started harassing the deceased attributing that she did not conceive pregnancy due to her ill-health and used to abuse and beat her subjecting her to cruelty. On 20.08.2008, the marriage of brother of deceased i.e., LW.3 was performed by his parents. The accused, who is under the impression that LW.3 got more dowry from his in-laws, started insisting the deceased to bring dowry pointing out 3 AVRB,J Crl.A. No.935/2010 that her parents got money from in-laws of LW.3. The deceased tried to convince the accused that her parents did not have the money. The accused did not hear her and intensified his harassment physically and mentally by beating her. He also attributed to her that they have no children because of her only. The deceased used to inform her parents about the behaviour of the accused and the harassment caused to her by the accused. LW.1 and LW.2 used to ask her to adjust herself and to live with the accused. But the accused did not change his behaviour.
On 01.01.2009, the accused stayed back at his house without going for work on the plea that he is not well and started abusing and beating her. He threatened to kill her. At about 03:30 p.m. accused asked the deceased to prepare tea for him and when the deceased went inside, the accused closed the doors, kept her inside, beat her and took her to the rear room, picked up kerosene tin, poured kerosene on her head and drenched her with kerosene and poured some kerosene on himself and firstly set fire on her with a lighted kerosene lamp. In view of that the deceased was caught in flames and sustained severe burns covering 86% of total area of her body. Accused also received burns. When the deceased raised hue and cry, her mother-in-law, LW.6 - Appikonda Ramalaxmi, LW.7 - Sirimalla Nagamani and others came there 4 AVRB,J Crl.A. No.935/2010 and rescued them from their further burning and took both of them to the Government Hospital, Anakapalli in 108 Ambulance and from there to K.G. Hospital, Visakhapatnam for expert treatment. They have seized half burnt pillow, deepam buddi, empty plastic kerosene can and plastic navar pieces.
On receipt of medical intimation from the Hospital, LW.21 - SI of Police, Atchuthapuram Police Station in-charge of Rambilli Police Station, visited K.G. Hospital, Visakhapatnam on 02.01.2009 and recorded the statement of the victim, while she was undergoing treatment. He registered her statement as a case in Crime No.2 of 2009 for the offences under Sections 307 and 498-A IPC and investigated into.
During the course of investigation, LW.21 observed the scene of offence in the presence of LW.4 - Uppaluri Naidu and LW.9 - Agraharapu Nagavenkata Sanyasi Rao. LW.14, photographer, took photographs of the scene of offence. The learned I Additional Chief Metropolitan Magistrate, Visakhapatnam i.e., LW.16 recorded the dying declaration of the deceased on 01.01.2009, while the deceased was undergoing treatment at K.G Hospital, Visakhapatnam. LW.21 also recorded the statement of the deceased on 02.01.2009 during his investigation. On 03.01.2009 at about 08:00 a.m. the deceased 5 AVRB,J Crl.A. No.935/2010 succumbed to her burns in K.G Hospital, Visakhapatnam. On receipt of the report from LW.1, LW.21 - SI of Police, in-charge of Rambilli PS issued altered FIR altering the Sections of law from 307 and 498-A IPC to 304-B IPC. LW.22, Assistant Superintendent of Police, Narsipatnam Sub-Division, took up investigation on receipt of copy of altered FIR. On receipt of requisition, LW.15, the Tahsildar and Taluq Executive Magistrate, Rambilli held inquest over the dead body of the deceased in the presence of LWs.9 to 14. LW.20, local photographer, took the photos of the dead body of the deceased. After inquest, the dead body was sent for the post- mortem examination. LWs.17 and 18, who are the team of doctors, Department of Forensic Medicine, Andhra Medical College, Visakhapatnam conducted autopsy over the dead body of the deceased and issued postmortem certificate opining that the deceased appears to have died of shock and due to infected burns. LW.22 - Assistant Superintendent of Police, Narsipatnam Sub- Division during investigation arrested the accused on 22.02.2009, sent him for remand and after completion of investigation, filed charge sheet.
5. The learned Magistrate took cognizance of the case for the offence under Section 304-B IPC and after completing the 6 AVRB,J Crl.A. No.935/2010 formalities under Section 207 Cr.P.C, committed the case to the Court of Session and thereafter it was numbered as S.C. No.80 of 2009 and made over to the Court of learned Additional Sessions Judge.
6. After appearance of the accused before the learned Additional Sessions Judge, Visakhapatnam and after following the procedure under Section 228 Cr.P.C, charge under Section 304-B IPC was framed and explained to the accused in Telugu, for which the accused denied the offence, pleaded not guilty and claimed to be tried.
7. During the course of trial, before the Court below, on behalf of the prosecution, PWs.1 to 13 were examined and Exs.P-1 to P-26 and further MOs.1 to 6 were marked.
8. After closure of the evidence of the prosecution, accused was examined under Section 313 Cr.P.C with reference to the incriminating circumstances appearing in the evidence let in by the prosecution, for which he denied the incriminating circumstances but did not let in any defence evidence.
9. The learned Additional Sessions Judge, on hearing both sides and after considering the oral and documentary evidence on 7 AVRB,J Crl.A. No.935/2010 record, found the accused guilty of the charge under Section 304-B IPC, and convicted him under Section 235(2) Cr.P.C after questioning him about the quantum of sentence, sentenced him as above.
10. Being aggrieved of the same, the un-successful accused filed the present Appeal challenging the judgment of the learned Additional Sessions Judge convicting him under Section 304-B IPC.
11. Now, in deciding this Criminal Appeal, the points that arise for consideration are:
1) Whether the prosecution before the Court below proved the fact that the death of the deceased was within 7 years of her marriage and otherwise than under normal circumstances and whether the deceased was subjected to harassment for dowry within the meaning of Section 304-B IPC?
2) Whether there are any grounds to interfere with the judgment of the trial Court?
12. POINT Nos.1 & 2: Sri Sreekanth Reddy Ambati, learned counsel for the appellant, would contend that the evidence of PW.1 8 AVRB,J Crl.A. No.935/2010 is not at all convincing and his evidence is hearsay in nature and some of the prosecution witnesses did not support the case of the prosecution and the basis for the Court to convict the accused was no other than the three dying declarations; one was recorded by the Police, another was recorded by the learned Additional Chief Metropolitan Magistrate, Visakhapatnam and the third one was recorded by the Police in the form of her statement during investigation. The dying declarations projected by the prosecution are not at all convincing. There was no evidence to prove that the accused tortured or harassed the deceased so as to demand any dowry. The learned Additional Sessions Judge did not look into the fact that, even according to the case of the prosecution, the appellant/accused also got burnt injuries but the learned Additional Sessions Judge concluded that death of the deceased was homicidal. At any rate, there was a possibility that the deceased in her dying declarations alleged against the accused on account of tutoring. At any rate, the conviction recorded by the learned Additional Sessions Judge is not sustainable under law and facts as such the Appeal is liable to be allowed.
13. Sri Y. Jagadeeswara Rao, learned counsel, representing learned Public Prosecutor, appearing for the respondent-State, 9 AVRB,J Crl.A. No.935/2010 sought to support the judgment of the trial Court on the ground that PW.1 categorically testified the harassment meted out to the deceased in the hands of the accused and further there is evidence of PW.3, who witnessed that the deceased caught in flames in the house and accused was also present by then and though she did not support the case of the prosecution in all aspects, prosecution established that the death of the deceased was due to burns. In the dying declarations deceased directly attributed that accused poured kerosene on her and set her ablaze. In fact, the allegations would attract Section 302 IPC but the trial Court convicted the accused under Section 304-B IPC. He would further submit that the dying declarations recorded by the Police and Magistrate are convincing and as such the Appeal is liable to be dismissed.
14. The allegations in the charge sheet are very specific that on 01.01.2009 accused stayed back at his house without going to work and started abusing deceased by beating and threatened to kill her and asked the deceased at 03:30 p.m. to prepare tea for him and when the deceased went inside, accused closed the doors, kept her inside, beat her and took her to rear room, picked up kerosene tin and poured kerosene on her head, drenched her body with kerosene and also poured some kerosene on him and firstly 10 AVRB,J Crl.A. No.935/2010 set fire to the deceased and later set fire to him and that the deceased received 86% of burns. The accused could survive but the deceased succumbed to injuries. As seen from the purported statement of PW.1 given to Police, on information he proceeded to her son-in-laws house and came to know that her son-in-law poured kerosene on her daughter on 01.01.2009 at about 03:30 p.m. and lit fire. In evidence PW.1 deposed that on 01.01.2009 his sister i.e., mother of the accused telephoned and informed him that accused after pouring kerosene on the person of the deceased set fire to her and they removed the deceased to the Hospital. The dying declarations two in number especially the first dying declaration which was recorded by the Police which was basis for registration of FIR i.e., Ex.P-18 recorded by the Police, literally runs that the deceased stated to Police that at about 03:30 p.m. when her aunt went to the upstairs to dry the seeds, the accused called her inside to make him a tea and when she went inside, he beat her again, closed the doors, poured kerosene on her and on his body and then picked up the burning lamp and lit fire to her. The dying declaration i.e., recorded by the Magistrate under Ex.P-15 runs that the victim stated to the learned Magistrate that the accused poured kerosene on her and lit fire to her. So, when the charge sheet filed by the Police, statements of the witnesses 11 AVRB,J Crl.A. No.935/2010 recorded by the Police and the two dying declarations recorded by the Police and the Magistrate runs that the accused poured kerosene on the deceased and set fire to her and when the deceased succumbed to injuries, the Police laid the charge sheet only under Section 304-B IPC.
15. The allegations, undoubtedly, attract Section 302 IPC. It is quite unfortunate that even at the time of framing of charge the learned Additional Sessions Judge did not comprehend the case of the prosecution in letter and spirit by looking into the allegations in the charge sheet and two dying declarations. The learned Additional Sessions Judge did not think over to frame the charge under Section 302 IPC.
16. This Court would like to make it clear that the essential ingredients of Section 304-B IPC, dowry death, and Section 302 IPC, murder, are totally different. According to Section 302 IPC, it shall be punished with death or imprisonment for life and shall also be liable to fine. The punishment prescribed under Section 304-B IPC is imprisonment for a term which shall not be less than 7 years but which may extend to imprisonment for life. So, the punishment prescribed under Section 302 IPC is more than the punishment prescribed under Section 304-B IPC. When the 12 AVRB,J Crl.A. No.935/2010 allegations in the charge sheet and two dying declarations run that the accused poured kerosene on the deceased and set ablaze her, the learned Additional Sessions Judge ought to have framed the charge under Section 302 IPC. The Police also failed to distinguish between Sections 302 IPC and 304-B IPC and mechanically filed a charge sheet under Section 304-B IPC flouting the outcome of the investigation. The cause of death was said to be burns. The allegations were of homicidal. According to the judgment of the learned Additional Sessions Judge, the prosecution established that the accused killed the deceased by pouring kerosene and setting ablaze her and he believed the case of the prosecution, convicted and sentenced the accused under Section 304-B IPC. This Court, as a Court of Appeal, when there was no charge under Section 302 IPC, cannot alter the conviction under Section 304-B to Section 302 IPC even if the evidence adduced by the prosecution is believable.
17. As proper charge was not framed under Section 302 IPC, in spite of the allegations that the death of the deceased was of homicidal in view of the allegations in the charge sheet, statements of the witnesses recorded during investigation and the dying declarations relied upon by the prosecution, there appears 13 AVRB,J Crl.A. No.935/2010 to be miscarriage of justice. Hence, the only course left open to this Court is to remand the matter to the trial Court with a direction to frame a charge under Section 302 IPC, in addition to the charge under Section 304-B IPC which was framed already. At this juncture, it is pertinent to refer here the decisions of the Hon‟ble Supreme Court in Rajbir and others v. State of Haryana1 and Jasvinder Saini and others v. State2 (Government of NCT of Delhi).
18. In Rajbir and others (1st supra), the Hon‟ble Supreme Court dealt with a situation where the trial Court awarded life sentence under Section 304-B IPC to the accused and the Hon‟ble High Court of Haryana reduced it to ten years. The evidence on record shows that it was a case of murder as such the Hon‟ble Supreme Court directed the trial Courts in India to add ordinarily Section 302 IPC to charge of Section 304-B IPC. The judgment of the Hon‟ble Supreme Court in Rajbir and others (1st supra) is applicable to all the trial Courts in India and, subsequently, the Hon‟ble Supreme Court in Jasvinder Saini (2nd supra) had an occasion to examine the scope of directions that were given in the earlier decision and held at Para No.13 that according to the 1 2010 15 SCC 116 2 (2013) 7 SCC 256 14 AVRB,J Crl.A. No.935/2010 judgment in Rajbir and others (1st supra), the Court directed addition of charge under Section 302 IPC to every case in which the accused are charged under Section 304-B IPC. The Hon‟ble Supreme Court held that in their opinion that was not true purport of the earlier directions and the direction was not meant to be followed mechanically and without due regard to the nature of the evidence available in the case. While holding so, the Hon‟ble Supreme Court clarified as follows:
"All that this Court meant to say was that in a case where a charge alleging dowry death is framed, a charge under Section 302 can also be framed if the evidence otherwise permits. No other meaning could be deduced from the order of this Court. It is common ground that a charge under Section 304B Indian Penal Code is not a substitute for a charge of murder punishable under Section 302. As in the case of murder in every case under Section 304B also there is a death involved. The question whether it is murder punishable under Section 302 Indian Penal Code or a dowry death punishable under Section 304B Indian Penal Code depends upon the fact situation and the evidence in the case. If there is evidence whether direct or circumstantial to prima facie support a charge under Section 302 Indian Penal Code the trial Court can and indeed ought to frame a charge of murder punishable under Section 302 Indian Penal Code, which would then be the main charge and not an alternative charge as is erroneously assumed in some quarters. If the main charge 15 AVRB,J Crl.A. No.935/2010 of murder is not proved against the accused at the trial, the Court can look into the evidence to determine whether the alternative charge of dowry death punishable under Section 304B is established. The ingredients constituting the two offences are different, thereby demanding appreciation of evidence from the perspective relevant to such ingredients. The trial Court in that view of the matter acted mechanically for it framed an additional charge under Section 302 Indian Penal Code without adverting to the evidence adduced in the case and simply on the basis of the direction issued in Rajbir's case (supra). The High Court no doubt made a half hearted attempt to justify the framing of the charge independent of the directions in Rajbir's case (supra), but it would have been more appropriate to remit the matter back to the trial Court for fresh orders rather than lending support to it in the manner done by the High Court".
19. The directions of the Hon‟ble Supreme Court, as above, are squarely applicable to the present case on hand. The decision in Rajbir and others (1st supra) is subsequent to the offence in the present case but, irrespective of the said decision, the material available on record would warrant framing of charge under Section 302 IPC. Apart from this, by virtue of the directions of the Hon‟ble Supreme Court, as above, and as the matter is going to be remanded, now the learned Additional Sessions Judge has to 16 AVRB,J Crl.A. No.935/2010 frame a charge under Section 302 IPC in addition to the charge under Section 304-B IPC.
20. Having regard to the above and totality of the facts and circumstances, the matter is remanded to the learned IV Additional District and Sessions Judge, Visakhapatnam by setting aside the judgment in Sessions Case No.80 of 2009, dated 26.07.2010, directing the learned Additional Sessions Judge to frame a charge under Section 302 IPC in addition to the charge under Section 304-B IPC, which was already framed and to permit the prosecution to adduce additional evidence, if any, and to recall the witnesses that were examined by the prosecution and defence, if they so desires. The learned IV Additional District and Sessions Judge, Visakhapatnam is further directed to complete the entire process and to dispose of the matter within three (3) months from the date of receipt of a copy of this judgment, in accordance with law, answering the charge under Section 302 IPC that would be framed and further charge under Section 304-B IPC that was framed already. The learned IV Additional District and Sessions Judge, Visakhapatnam is directed to follow the directions of this 17 AVRB,J Crl.A. No.935/2010 Court in Damarla Revathi Devi v. Bhattu Srinivasa Rao and others3 circulated to all the Criminal Courts in Andhra Pradesh.
21. The appellant/accused is directed to appear before the learned IV Additional District and Sessions Judge, Visakhapatnam on 10.03.2023 to take note of further proceedings. The Registry is directed to send the entire lower Court record along with the copy of this judgment through a special messenger to the learned IV Additional District and Sessions Judge, Visakhapatnam on or before 07.03.2023. If the appellant fail to appear before the learned IV Additional District and Sessions Judge, Visakhapatnam on 10.03.2023, the learned Additional Sessions Judge shall secure the presence of the appellant by coercive process, in accordance with law, and to dispose of the matter, in accordance with law, as directed above.
Consequently, Miscellaneous Applications pending, if any, shall stand closed.
________________________________ JUSTICE A.V.RAVINDRA BABU Date: 03.03.2023 DSH 3 2022 (3) L.S. 104 (A.P.)