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2004 DIGILAW 1317 (AP)

Yerra Veera Lakshmi v. State Of A. P.

2004-11-07

P.S.NARAYANA

body2004
P. S. NARAYANA, J. ( 1 ) HEARD Sri C. Praveen Kumar, Counsel representing the appellants and Sri Mohd. Osman Saheed, Additional Public Prosecutor. ( 2 ) THE appellant/accused-Yerra Veera lakshmi, W/o Venkateswara Rao preferred this appeal as against the judgment dated 30-3-1999 in Sessions Case No. 40 of 1995 on the file of the Sessions Judge, West godavari, Eluru. ( 3 ) THE appellant-sole accused was charged with an offence punishable under section 3021 PC for causing the death of her husband by pouring boiled castor oil mixed with edible oil, while he was asleep, with an intention to kill him. ( 4 ) ON appreciation of evidence and after recording the reasons, the learned Judge arrived at a conclusion that the prosecution proved the guilt of the accused for the offence of culpable homicide not mounting to murder punishable under Section 304 Part-II IPC and sentenced the accused to undergo rigorous imprisonment for a period of four years. Hence the present Criminal Appeal. ( 5 ) THE learned Counsel for the appellant-accused would submit that the dying declarations relied upon by the learned Judge are without any corroboration and even otherwise, it is doubtful whether the deceased could have made such dying declarations at all in the condition, in which he was placed at the relevant point of time and hence, the learned Judge erred in convicting the appellant-accused under Section 304 part II ipc. The learned Counsel also pointed out certain discrepancies in the prosecution evidence. ( 6 ) ON the contrary, the learned Additional public Prosecutor would contend that apart from the dying declarations recorded, the medical evidence is also clear and the reasons in detail had been recorded by the learned judge and hence, the said findings are to be confirmed. ( 7 ) THE case of the prosecution is that the deceased was a rickshaw puller and the accused is an agricultural coolie and they got two sons. They were having meager income and further, the deceased was addicted to drinking and vices and in that connection the accused and the deceased used to quarrel frequently. It is also the version of the prosecution that on 17-8-1993 in the night, there was altercation between the accused and the deceased as the deceased gave only Rs. 11/- after spending the rest of the money earned on that day. It is also the version of the prosecution that on 17-8-1993 in the night, there was altercation between the accused and the deceased as the deceased gave only Rs. 11/- after spending the rest of the money earned on that day. On the next day morning, the deceased went out and came back at 8. 00 a. m. and slept on the cot in his thatched house bearing door No. C-6 in arundhatipeta, Bhimadole. Meanwhile, the accused, who was disgusted with the activities of the deceased, boiled about one liter of edible oil mixed with castor oil and at about 8. 30 a. m. , intentionally the accused poured it over the person of the deceased with a view to cause his death. As a result, the face, chest and hands of the deceased received severe burn injuries. The deceased raised hue an d cry and ran out of the house crying that his wife poured boiled oil over him with an intentfon to kill Him. On hearing the cries, persons gathered and immediately took him to the Government Head Quarters Hospital, eluru, where he was treated by the Medical officer. On receipt of hospital intimation, head Constable recorded the statement of the deceased in the presence of Medical officer and forwarded the same to the Station house Officer, Bhimadole P. S. , who registered the same as a case Crime No. 70 of 1993 under Section 307 IPC and investigated. On 5-9-1993 at 12. 15 p. m. , the deceased succumbed to the burn injuries while undergoing treatment in the government Hospital. On receipt of death intimation, section of law altered to 302 IPC. The C. I. of police, Bhimadole Circle held inquest over the dead body of the deceased in the presence of mediators and sent the dead body for post-mortem examination. Autopsy was conducted by Dr. B. N. Rao, who opined that the deceased would appear to have died of septicemia shock due to antemortem extensive burns. ( 8 ) THE case was taken on file as P. R. C. No. 60 of 1994 and committed to the Court of sessions and the learned Judge recorded the evidence of P. Ws. 1 to 19 and marked exs. P- to P-23 and M. Os 1 and 2. On behalf of the defence, Exs. D-1 and D-2 were marked. ( 8 ) THE case was taken on file as P. R. C. No. 60 of 1994 and committed to the Court of sessions and the learned Judge recorded the evidence of P. Ws. 1 to 19 and marked exs. P- to P-23 and M. Os 1 and 2. On behalf of the defence, Exs. D-1 and D-2 were marked. On perusal of evidence and after recording the findings, the learned Judge convicted the accused as referred to supra. ( 9 ) P. WS. 1 to 4, 6 and 7 are the residents of the same locality, who had deposed that they had taken the deceased to the government Head quarter s Hospital for treatment. But all these witnesses, except p. W. 3, turned hostile. ( 10 ) P. W. 1 deposed that on the date of incident, he took his rickshaw at about 6. 00 a. m. , in the early hours from his house and returned home at 4. 00 p. m. and he came to know about the incident on the second day. ( 11 ) P. W. 2 deposed that he lives by rearing sheep and on the date of incident, he went away along with his sheep in the early hours and returned in the evening and came to know that the deceased received burn injuries on account of the accused pouring hot oil on him. ( 12 ) P. WS. 4, 6 and 7 also had evaded and had not spoken to their presence in the vicinity at the time of the accident. ( 13 ) P. W. 3 who is elder of the colony deposed that his house is at a distance of 10 yards from the house of the accused and he was living in No. 1 ward and the deceased was in No. 1 ward. He deposed that on 18-8-1993, there was a meeting at ramalayam in connection with the house sites and the meeting was over by 8. 00 a. m. , in the morning and at that time at about 8. 30 a. m. , when they were dispersing from the place of meeting, the deceased came running, crying and shouting that his wife heated the oil and poured it on him and he is dying of the burn injuries. 00 a. m. , in the morning and at that time at about 8. 30 a. m. , when they were dispersing from the place of meeting, the deceased came running, crying and shouting that his wife heated the oil and poured it on him and he is dying of the burn injuries. This witness deposed that he noticed burn injuries on the face, chest of the deceased and also on his hands. This is the evidence available on record, which is just immediate to the happening of the incident. The prosecution also had relied upon ex. P-16 dying declaration recorded by p. W. 14 Head Constable and another dying declaration (Ex. P-17) recorded by P. W. 15 magistrate. In Ex. P-17, the deceased categorically stated about pouring of the hot oil by his wife. The doctor also certified that he was conscious and he was capable of making such a statement. ( 14 ) P. W. 10 deposed that on 18-8-1993 at 11. 30 a. m. , he examined the deceased brought by one Bhimadole Naganna. This witness deposed that at the time of examination, the patient was conscious and coherent and he stated that hot oil was poured on him by his wife on that day at 8. 00 a. m. This witness deposed that he found scalds on face, front side of neck, chest and abdomen and he treated him in casuality and admitted him in the surgical ward. The statement made by the deceased was recorded in the Accident register (Ex. P-13 ). ( 15 ) THE next statement is of P. W. 14 head Constable, who is attached to Undi police Station. The evidence of P. W. 14 is that on 18-8-1993 when he was present in the police station, Eluru II town P. S. , he received intimation from Government Head quarters Hospital, Eluru that one Yerra venkateswara Rao was admitted in the hospital with burn injuries and then he proceeded to the Government Hospital and recorded the statement of the deceased (Ex. P-16 ). Nothing serious had been elicited in the cross-examination of this witness. Yet another dying declaration was recorded by the Magistrate (P. W. 15), who proceeded to government hospital at 11. 50 a. m. P. W. 15 recorded the dying declaration of the deceased after verifying his condition and the fitness to give statement. Ex. P-16 ). Nothing serious had been elicited in the cross-examination of this witness. Yet another dying declaration was recorded by the Magistrate (P. W. 15), who proceeded to government hospital at 11. 50 a. m. P. W. 15 recorded the dying declaration of the deceased after verifying his condition and the fitness to give statement. Ex. P-17 is the statement recorded by P. W. 15. ( 16 ) P. W. 18 is the doctor who was present at the time of recording of dying declaration of the deceased by P. W. 15 Magistrate. Ex. P-22 is the endorsement made by the doctor. P. W. 19 deposed that she was present at the time of recording statement under ex. P-16 by P. W. 14 Head Constable. ( 17 ) THUS, the evidence available on record would clearly disclose the happening of the incident on the fateful day as stated by the prosecution. The Post-mortem examination was conducted by P. W. 11 and post-mortem certificate is Ex. P-15. P. W. 11 opined that the deceased would appear to have died of septicemia shock due to ante-mortem burns. It is pertinent to note that nowhere it has been stated that due to these burns, the deceased could not have been capable of making that statement. Apart from it, it is not a case of 100% burns and hence, dying declarations cannot be doubted in any way. Apart from this evidence, there is some corroborative evidence and findings in detail had been recorded by the learned Judge on the strength of evidence of P. Ws. 1 to 19, Exs. P-1 to p-23 and also M. O. 1 oil pan and M. O. 2 bed sheet. Hence, this Court does not see any reason to record different findings in this regard. ( 18 ) AS can be seen from the material available on record, the deceased-husband was a drunkard and there were certain family problems and as per the evidence on record, it may be that the appellant-accused-wife might have not thought of totally doing away with the life of the husband, but had resorted to this crude method. The status of the parties involved in the commission of the offence also may have to be taken into consideration while evaluating the requisite mens rea and the nexus in between the mens rea and the offence with which the accused was charged with. The status of the parties involved in the commission of the offence also may have to be taken into consideration while evaluating the requisite mens rea and the nexus in between the mens rea and the offence with which the accused was charged with. ( 19 ) TAKING the over all facts and circumstances into consideration, this Court is of the considered opinion that the requisite intention was not there on the part of the wife and hence, the conviction and the sentence imposed under Section 304 Part II IPC cannot be sustained and accordingly, the said conviction and the sentence imposed under section 304 Part II are liable to be set aside. But however, in the light of the medical evidence available, the accused is guilty of an offence under Section 324 IPC. ( 20 ) IN the result, the conviction and the sentence imposed by the Sessions Judge, west Godavari, Eluru, against the accused in Sessions Case No. 40 of 1995, on 30-3-1999, for the offence under section 304-II IPC are hereby set aside. But however, the appellant-accused is guilty of an offence punishable under Section 324 ipc. In view of the same, she is convicted under Section 324 IPC and sentenced to undergo rigorous imprisonment for a period of one and half years. Bail bonds of the accused shall stand cancelled. It is needless to say that the appellant-accused shall serve the rest of the sentence. She is entitled to set off in accordance with law. Accordingly, the Criminal Appeal is partly allowed.