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Andhra High Court · body

2001 DIGILAW 1643 (AP)

Boppala Siddappa v. State Of A. P.

2001-12-14

D.S.R.VERMA

body2001
D. S. R. VARMA, J. ( 1 ) THE appeal is filed challenging the order of conviction of the sole accused for the offence punishable under Section 304 Part II of IPC. ( 2 ) THE case of the prosecution in brief is as under: the deceased was the wife of the accused who married her about ten years ago prior to the date of offence. The accused was not looking after the deceased and was harassing and torturing her and that he married another woman before the date of incident. The harassment and torturing was to the extent of alleging unchastity of the deceased. While so on 25-6-1992 at about 7. 30 p. m. the accused came along with his friend and consumed liquor at his house and after his friend left the house, he beat his wife with chappal and in the mid night again he beat her severely. There upon the deceased in order to create fear in the mind of the accused poured kerosene on herself, as if she is going to commit suicide. But the accused with an intention to kill his wife threw the matchstick at her, as a result of which the deceased caught fire and sustained burn injuries. He did not take her to the hospital, and that the neighbours informed the police and the police shifted her to Gandhi Hospital and there she succumbed to burn injuries while undergoing treatment on 2-7-1992. The accused was arrested on 5-7-1992. The hospital authorities informed the police on 26-6-1992 at about 11. 00 a. m. Immediately after receiving the intimation from the hospital, the head constable P. W. 10 went to the hospital and recorded the statement of the deceased under Ex. P-9 at about 11. 00 a. m. P. W. 11 sub-Inspector of Police registered a case and issued FIR under Ex. P-10. After issuance of f. I. R. he sent a requisition to P. W. 9 (Mandal revenue Officer) Executive Magistrate to record the dying declaration of the deceased and in turn P. W. 9 recorded the dying declaration of the deceased under Ex. P-8 between 12. 50 to 1. 30 p. m. on 26-6-1992. The doctor P. W. 8 who conducted the post-mortem has issued Ex. P-7 post-mortem certificate. ( 3 ) IN order to establish its case, the prosecution examined P. Ws. 1 to 12 and got marked Exs. P-8 between 12. 50 to 1. 30 p. m. on 26-6-1992. The doctor P. W. 8 who conducted the post-mortem has issued Ex. P-7 post-mortem certificate. ( 3 ) IN order to establish its case, the prosecution examined P. Ws. 1 to 12 and got marked Exs. P-1 to P-12 and Mos. 1 and 2. On behalf of the accused no witnesses were examined. ( 4 ) P. W. 1 is the father of the deceased and p. W. 2 is the mother of the deceased. P. W. 3 and P. W. 4 were said to be the neighbours. P. Ws. 5 and 6 are panch witnesses. P. W. 7 is the inquest panch witness. ( 5 ) P. WS. 1,2,3 and 4 were declared hostile as they did not support the case of the prosecution. So their evidence is of no use to the prosecution. The evidence of P. Ws. 5, 6 and 7 is also not very relevant. The only relevant evidence on record is that of the doctor who was examined as P. W. 8, P. W. 9 the Mandal Revenue Officer and also p. W. 10 Head Constable. As already noticed after intimation by the hospital authorities, p. W. 10 rushed to the hospital and recorded the statement of the deceased under Ex. P-9. A perusal of Ex. P-9 at limine reveals that there is no certificate issued by the doctor about the fitness of the patient to give the statement. Perhaps P. W 10 could not assess the possibility of survival and in an anxiety to record her statement in view of the likelihood of the death of the deceased, recorded the dying declaration of the deceased. But however, there was no endorsement of the doctor as regards the state of mind of the deceased at the time of recording the said declaration. ( 6 ) YET there is another dying declaration recorded by the Mandal Revenue Officer (P. W. 9 ). The Mandal Revenue Officer, recorded dying declaration upon the requisition of P. W. 11 the Sub-Inspector of police. Undisputedly, the Mandal Revenue officer being the Executive Magistrate is competent to record the dying declaration as requisitioned by the Investigating Agency. From the record, it appears that P. W. 11 requisitioned the M. R. O. to record the dying declaration apparently on the ground that both these offices are located very closely. Undisputedly, the Mandal Revenue officer being the Executive Magistrate is competent to record the dying declaration as requisitioned by the Investigating Agency. From the record, it appears that P. W. 11 requisitioned the M. R. O. to record the dying declaration apparently on the ground that both these offices are located very closely. Therefore, the authority of P. W. 9 in recording the dying declaration under Ex. P-8 is unquestionable. ( 7 ) NOW here are two dying declarations on record, one is Ex. P-9 recorded by the head Constable at 11. 00 a. m. on 26-6-1992 and the other is Ex. P-8 recorded by the mandal Revenue Officer P. W. 9 between 12. 50 p. m. to 1. 30 p. m. on 26-6-1992. A perusal of both these dying declarations would reveal that the deceased categorically stated that the accused came along with his friend on 25-6-1992 evening and had drinks and after his friend left the house, the accused beat her with chappal and in order to threaten the accused, the deceased poured kerosene on herself and the accused in inebriated condition threw the live match stick at her which resulted in deceased being caught fire. There is any amount of consistency in these two declarations. ( 8 ) BUT in the presence of dying declaration recorded by P. W. 9 who is no other than the executive Magistrate, the dying declaration recorded by P. W. 10 loses its significance. In other words only in the absence of the dying declaration recorded by P. W. 9 in Ex. P-8, ex. P-9 recorded by the head constable would become relevant. Therefore, for all purposes ex. P-8 dying declaration which was recorded by P. W. 9 alone is to be taken into account, treating the same as dying declaration of the deceased inasmuch as the same was recorded in the presence of the doctor which bears an endorsement made by the doctor certifying that the patient was conscious, coherent and fit to give dying declaration which was recorded in his presence. ( 9 ) THE learned counsel, Sri Praveen Kumar appearing for the appellant contends that the endorsement of the doctor stating that the patient was conscious and coherent is not sufficient as held by the Apex Court and also this court in various cases. ( 9 ) THE learned counsel, Sri Praveen Kumar appearing for the appellant contends that the endorsement of the doctor stating that the patient was conscious and coherent is not sufficient as held by the Apex Court and also this court in various cases. In support of his contention he relied on a decision of the apex Court in Paparambaka Rosamma v. State of Andhra Pradesh wherein it was held that it is not sufficient to just endorse that the patient was conscious and coherent but fitness of mind of the deceased person at the time of making the statement must also be explicitly stated by the doctor. ( 10 ) IN view of this contention, it is to be examined whether the endorsement, which was already referred to above made by the doctor on Ex. P-8 is sufficient indication that the patient was in a fit state of mind to make dying declaration. As could be seen from ex. P-8 the doctor endorsed that the patient was not only conscious but also coherent. The endorsement goes further to the extent of stating that "fit to give dying declaration". This expression by the doctor in my view is explicitly clear that the deceased was in a fit state of mind while making the declaration. In other words the endorsement of the doctor need not necessarily be in the same language as "the patient was in fit state of mind to give dying declaration". In this case, the endorsement made by the doctor stating that the patient was fit to give dying declaration would only indicate that the deceased was in a fit state of mind before giving the dying declaration. In this case, the endorsement made by the doctor stating that the patient was fit to give dying declaration would only indicate that the deceased was in a fit state of mind before giving the dying declaration. ( 11 ) A Division Bench of this court (to which DSRV, J. is a member) in Moola narender Goud v. State of Andhra Pradesh held at para 9 as follows:"insofar as the first limb of the submission made by learned counsel with regard to fit state of mind of the victim at the time of giving dying declaration, as held by the Supreme Court in the decisions (supra), the principle laid down by the apex Court on the question of fit state of mind of the victim is to the effect that if the victim is not in a fit state of mind and not able to understand the implications of the questions, in the absence of the doctor certifying that the victim is in a fit state of mind at that point of time, merely because the Judicial Officer records the statement and certifies that the victim is conscious and capable of giving statement, the subjective satisfaction of the Judicial Officer is not sufficient for the courts to come to a conclusion that the victim was in a fit state of mind and the victim is capable of giving the statement. Admittedly in this case the deceased sustained 80% burn injuries on her body. The Doctor who was present at the time of learned Magistrate recording the statement only indicated that the patient was conscious while answering questions. The Apex Court in the above said decisions 1999 (5) SCALE 451 and 1999 (5) SCALE 118 (supra) further held that in the absence of medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a Magistrate". ( 12 ) THE above judgment was delivered basing on the judgment of the Apex Court in paparambaka Rosamma s case (1 supra) and dandu Lakshmi Reddy v. State of Andhra pradesh. ( 13 ) THEREFORE, I am of the considered view that the endorsement of the doctor in Ex. P-8 is in complete satisfaction of requirements as laid down by the Apex Court as well as this court. When the dying declaration under ex. ( 13 ) THEREFORE, I am of the considered view that the endorsement of the doctor in Ex. P-8 is in complete satisfaction of requirements as laid down by the Apex Court as well as this court. When the dying declaration under ex. P-8 has been properly recorded there is no reason to disbelieve the contents of the said declaration. Further, it is to be noticed that the patientbreathed last on 2-7-1992 that is after about five days from the date of offence which indicates that at the time of giving declaration by the deceased it can be inferred that the patient indeed could be in a fit state of mind. ( 14 ) WHEN the said declaration Ex. P-8 is believed, the only irresistible conclusion that can be arrived at is that the accused was responsible for the burn injuries caused to the deceased. The next question would be whether the accused had an intention with a knowledge that it would cause the death of the deceased, set her ablaze. ( 15 ) IN this context, it is to be seen that admittedly, the deceased had stated in her dying declaration that she herself poured kerosene on her person in order to threaten the accused but unfortunately the accused, it appears that in inebriated condition threw a live match stick on her, whereby the deceased caught fire. This fact reveals that accused had no original intention to kill the deceased by pouring kerosene and setting her ablaze. The firsthalf of the causality was contributed by the deceased herself and the second part, which is fatal, was contributed by the accused. In other words, the commission of throwing the live match stick by the accused was only with the knowledge that it is likely to cause death. But the intention to cause death is totally absent. If really there was an intention to cause death, the conduct of the accused would have been in a different way i. e. , by pouring kerosene on the deceased by himself and also setting her ablaze by throwing match stick. But the intention to cause death is totally absent. If really there was an intention to cause death, the conduct of the accused would have been in a different way i. e. , by pouring kerosene on the deceased by himself and also setting her ablaze by throwing match stick. Therefore, from the said facts it cannot be inferred that the accused had an intention to kill her but certainly he had the knowledge that if a live match stick is thrown at the deceased it would likely to cause death and therefore he is liable to be convicted under section 304 Part IIIPC only. The trial court was right in believing ex. P-8 dying declaration in order to convict the appellant under Section 304 Part II of the indian Penal Code even though there is no other evidence. Therefore, I am of the view that the trial court rightly acquitted the appellant for the offences under Secs. 498-A and 302 IPC. ( 16 ) INSOFAR as the sentence is concerned it should be seen that the opinion of P. W. 8 who conducted autopsy under Ex. P-7 is that the death was due to septicemic shock as a consequence of infected burn injuries. From the said opinion it is to be noticed that the original cause of death was burn injuries only but the actual cause of death was septicemic shock. No explanation was offered by the doctor as to whether the deceased would have survived if the burn injuries of deceased were not infected. There was also nothing on record as to what kind of treatment was given to the deceased for all the five days of survival. It is also on record that the accused was in drunken state when he threw the matchstick at the deceased who doused herself with kerosene and this incident was preceded by a quarrel between the spouses. Other circumstances, which turn out of the evidence on record, is that the accused himself tried to extinguish fire. This was made clear even by the deceased in her dying declaration. In these extenuating circumstances, I feel it expedient to reduce the punishment to three years. ( 17 ) IN the result, the conviction under section 304 Part II of IPC recorded by the trial court is hereby confirmed and the sentence is reduced to three years Rigorous imprisonment. This was made clear even by the deceased in her dying declaration. In these extenuating circumstances, I feel it expedient to reduce the punishment to three years. ( 17 ) IN the result, the conviction under section 304 Part II of IPC recorded by the trial court is hereby confirmed and the sentence is reduced to three years Rigorous imprisonment. The period of detention undergone by the accused during trial and investigation shall be given set off. ( 18 ) THE Criminal Appeal is accordingly dismissed with the above modification of sentence.