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2008 DIGILAW 107 (AP)

Injati Rajasweara Rao v. State

2008-02-12

B.PRAKASH RAO, L.NARASIMHA REDDY

body2008
JUDGMENT: L. Narasimha Reddy J:- The appellant was charged by the Court of II Additional Sessions Judge, East Godavari at Rajahmundry, of committing the murder of his wife, by name Injeti Sarada, on 16.07.2003. Through judgment dated 05.04.2004, the trial court held that the charge against the appellant is proved and sentenced him to undergo imprisonment for life, and to pay a fine of Rs.500/-, in default, to suffer simple imprisonment for one month. This appeal is directed against the judgment of the trial court. 2. The proceedings against the appellant commenced with the submission of the complaint-Ex. P1 by P.W.1, the daughter of the appellant and the deceased. She stated that her parents were living at Mumbai, whereas she was given in marriage to her maternal uncle, by name Ramana, at Vegivaripalem. She alleged that the appellant suspected the character of the deceased and used to beat her frequently, on that ground. About 10 days prior to 16.07.2003, P.W.1 and the deceased were said to have come from Mumbai to Vegivaripalem, due to the ill- health of the latter, and were residing in their house. On 16.07.2003 at 10.00 A.M., the appellant is said to have come from Mumbai to Vegirivaripalem and quarreled with the deceased, for not returning to Mumbai, even after ten days, and soon thereafter, stabbed the deceased on the right side of her stomach, below right shoulder, on the right finger of right hand, right knee, right side of the neck and on the back, indiscriminately. On hearing the cries of Sarada, neighbours-P.W.4 and certain others, were said to have gathered and shifted her to hospital. After being in unconscious state for some time, Sarada died due to injuries. 3. Some time after this incident, the appellant also caused severe injuries to himself and attempted to commit suicide. The police admitted him in the Government hospital, and sensing that the condition of the appellant is serious, a dying declaration was recorded from him, which is marked as Ex.P7, on 16.07.2003. He stated that one day earlier to the date of incident he came from Mumbai, stayed at a lodge and on the next day morning, when he went to the deceased and requested to accompany him, she is said to have replied to the effect that she does not intend to live with him. He stated that one day earlier to the date of incident he came from Mumbai, stayed at a lodge and on the next day morning, when he went to the deceased and requested to accompany him, she is said to have replied to the effect that she does not intend to live with him. He stated that the deceased refused to accompany him on account of her illicit relationship with another and unable to bear the insult, he had attacked her with a knife and thereafter tried to commit suicide. The inquest of the dead body was conducted through Ex.P2 and postmortem of the deceased, vide Ex.P19. 4. The appellant pleaded not guilty of the only charge framed against him. The trial court convicted and sentenced him for the offence punishable under Section 302 of the Indian Penal Code, 1860 (IPC). 5. Sri G.Vijaya Saradhi, learned counsel for the appellant, submits that though P.Ws.1 to 3 are cited as eyewitnesses, the other evidence on record makes the presence of the said witnesses at the scene of offence highly improbable. He further submits that there is discrepancy as to the very time of occurrence and the benefit of doubt ought to have been extended to the appellant. The leaned counsel also submits that the statement recorded from the appellant, in the form of dying declaration, cannot be taken on its face value, as no oath was administered to him. He ultimately contends that even if the death of the deceased is attributable to the appellant, it is to be treated as an act resorted to under grave and sudden provocation. 6. The learned Additional Public Prosecutor, on the other hand, submits that there is nothing unnatural about P.Ws.1,2 and 3, the daughter, son and mother of the deceased, respectively, being present in their house in the company of the deceased and their witnessing the occurrence in the broad day light at 10.00 A.M., in the morning. He contends that the discrepancy as to the time, mentioned in the charge on the one hand and the oral and documentary evidence on the other, is clerical and the record is consistent to the effect that the appellant committed murder at 10.00 A.M., on 16.07.2003. He contends that the discrepancy as to the time, mentioned in the charge on the one hand and the oral and documentary evidence on the other, is clerical and the record is consistent to the effect that the appellant committed murder at 10.00 A.M., on 16.07.2003. He further contends that the appellant cannot be extended benefit of any exceptions to Section 300 IPC, in view of the fact that he proceeded to the spot with predetermined mind and armed with a knife. 7. Before proceeding to discuss the matter on other aspects, the contention raised on behalf of the appellant as to the time of occurrence needs to be examined. 8. In the charge framed by the trial court, the time of occurrence was mentioned as 6.00 A.M., on 16.07.2003. However, the record, be it in the form of oral or documentary evidence, is consistent to the effect that the incident took place at 10.00 A.M., on that day. We are of the clear opinion that the time mentioned in the charge is nothing but a typographical error. 9. Of the fourteen witnesses examined by the prosecution, the first three are the daughter, son and mother, respectively, of the deceased. P.W.4 is an immediate neighbour in the locality, acquainted with the appellant, deceased and P.Ws.1 to 3. Himself and another person, by name Sathyanarayana, are [CMS31] said to have gone to the house of P.Ws.1 and 3 on hearing the cries of the deceased. P.W.5 stated that the appellant informed him that the deceased was insisting on selling his house at Mumbai. P.W.6 is the witness, before whom, the appellant is said to have attempted to commit suicide, and who is said to have accompanied him to the hospital. P.W.7 is also a witness to the same occurrence. P.W.8 is the panch for inquest and P.W.9 is the Principal Junior Civil Judge, Razole, who recorded the statement-Ex.P7 from the appellant. P.W.10 is the photographer and P.W.11 is the doctor, who certified that the condition of the deceased was not fit for recording dying declaration. He also stated elaborately, the injuries noticed on the body of the deceased. The Assistant Sub-Inspector of Police, who registered the case, deposed as P.W.12 and P.W.13 is the owner of the lodge, where the appellant is said to have stayed on the night of 15.07.2003. P.W.14 is the Investigating Officer. 10. He also stated elaborately, the injuries noticed on the body of the deceased. The Assistant Sub-Inspector of Police, who registered the case, deposed as P.W.12 and P.W.13 is the owner of the lodge, where the appellant is said to have stayed on the night of 15.07.2003. P.W.14 is the Investigating Officer. 10. In her evidence, P.W.1 stated that her marriage took place in or around 1997 with his maternal uncle and that she is living at Vegivaripalem in the house of her parents-in-law, who are also her maternal grandparents. She deposed that the appellant was initially employed in Dubai and thereafter, he came and settled at Mumbai. The witness stated that the appellant was accustomed to alcohol and was insisting on the deceased to sell the house property and give money to him. In her presence, the appellant is said to have beat the deceased on number of occasions and even tried to kill her. Ten days prior to the date of incident, the deceased and P.W.1 are said to have come from Mumbai, since the deceased was not well. 11. On 16.07.2003 P.W.1, the deceased, P.Ws.2 and 3 were said to be sitting in vasarah, talking to each other. It is stated that when all of them were together, the deceased came at around 10' O clock and with a view to provide privacy to the appellant and his wife, the deceased and P.Ws.1,2 and 3 are said to have gone to the backside of the house. This witness heard the appellant asking the deceased as to why she did not return Mumbai within ten days and the latter, in turn, is said to have replied that she is not feeling well. She stated that soon thereafter, the appellant started stabbing the deceased with a knife on various places of body. On hearing the cries of the deceased, P.Ws.1,2,3 and the father of the deceased are said to have rushed to the scene of occurrence, and the appellant had threatened them by showing knife. The deceased fell on the ground. The neighbours gathered and in the meanwhile, the appellant ran away. P.Ws.1 and 2 took the deceased to the Government hospital, Razole in an auto, and there she was laying in unconscious condition up to 12.00 noon. After she was declared dead, the inquest was conducted and thereafter, the autopsy. The deceased fell on the ground. The neighbours gathered and in the meanwhile, the appellant ran away. P.Ws.1 and 2 took the deceased to the Government hospital, Razole in an auto, and there she was laying in unconscious condition up to 12.00 noon. After she was declared dead, the inquest was conducted and thereafter, the autopsy. Though this witness was subjected to extensive cross-examination, nothing was elicited through her to doubt her presence at the scene of occurrence. The cross-examination was mostly about the circumstances under which the deceased was said to have been brought from Mumbai or the manner in which the properties were held by various individuals. Further, there is nothing unnatural or improbable about the evidence of P.W.1. 12. In a precise manner, P.W.2 repeated whatever was deposed by P.W.1. From this evidence also, nothing substantially was extracted in the cross-examination. The evidence of P.W.3, the mother of the deceased, is almost on par with the evidence of P.Ws.1 and 2. 13. P.W.4 is an independent witness, who has rushed to the spot on hearing the cries of the deceased and found P.Ws.1 and 2 taking the deceased to the hospital. The only information elicited through this witness was that he did not see the accused running away. However, he stated that he mostly concentrated on saving the life of the deceased, than apprehending the appellant. The evidence of P.W.5 is not of much importance. 14. P.W.6 is an important witness. He runs an STD booth in the locality. He was informed by P.W.7 that the appellant committed murder of the deceased. Even by the time he came out of his STD booth, he found the appellant trying to get into an auto. Thereupon, P.W.6 is said to have asked the driver not to take the appellant, revealing the reason. Subsequently, when he questioned the appellant as to why he committed murder of his wife, the appellant is said to have replied that the deceased was having illicit intimacy with others and for that reason he killed her. When P.W.6 went to the STD booth to inform the police, the appellant is said to have gone to a nearby wine shop and cut his abdomen with a blade. Soon thereafter, P.W.6 along with P.W.7 has taken him in an auto to the hospital. When P.W.6 went to the STD booth to inform the police, the appellant is said to have gone to a nearby wine shop and cut his abdomen with a blade. Soon thereafter, P.W.6 along with P.W.7 has taken him in an auto to the hospital. The only manner, in which the evidence of this witness and that of P.W.7, was sought to be contradicted, is that the appellant was admitted into the hospital by police. As long as there is no controversy as to the material aspects, the suggestion made to the said witnesses, hardly becomes of any significance. 15. It may be true that P.Ws.1 to 3 are interested witnesses, viewed in the ordinary parlance. Having regard to the fact that the appellant is none other than the husband of the deceased, atleast P.Ws.1 and 2 are very proximate, though not P.W.3. Even if there exists any doubt on the evidence of P.Ws.1 to 3, the version presented by P.Ws.4,6 and 7 virtually clinches the controversy. None of them have any grouse against the appellant and in fact, what is evidenced by P.Ws.6 and 7 is an act of attempt to commit suicide, by the appellant himself. 16. The importance that can be attached to the dying declaration, when the person, from whom it was recorded, is alive and when he figures as an accused, is a matter of debate. Firstly, it cannot be treated as dying declaration because, the person is alive. Secondly, though it is recorded by a Magistrate, it cannot be equated to the statement under Section 164 of the Code of Criminal Procedure, 1973, because no oath was administered to him. The fact, however, remains that it is a statement made virtually under distress and contemplating death, before a Magistrate. It must also be noted that the statement comes to be recorded not as defence to any crime committed by the person, but only about the circumstances that led to the infliction of injuries, by the declarant himself. As such, the statement is prone to be nearer to truth, though not conclusive. At any rate, they cannot be compared to extra-judicial confessions. The statement made by the appellant, what is described as dying declaration and marked as Ex.P7, reads as under: "Q6. How it took place:- Ans: I came from Bombay during night and stayed at Jaggannapeta lodge. As such, the statement is prone to be nearer to truth, though not conclusive. At any rate, they cannot be compared to extra-judicial confessions. The statement made by the appellant, what is described as dying declaration and marked as Ex.P7, reads as under: "Q6. How it took place:- Ans: I came from Bombay during night and stayed at Jaggannapeta lodge. Today morning I went to my wife at Vegivaripalem near Kadali. My wife had illicit intimacy with one Chinta Prabhudas of our village. My wife told that there is no relation between myself and herself. Unable to bear the same by uttering that I will kill you and later I am to die, removed the knife and hacked my wife. To kill myself I myself hacked with intention to kill himself. This is happened. The above contents are read over and I heard the same and they are correct." If the evidence of P.Ws.1 to 4, 6 and 7 is read together with the statement made by the appellant himself in Ex.P7, hardly any doubt exists that it is he who committed the murder. The prosecution has clinchingly proved the guilt on the part of the appellant. 17. Learned counsel for the appellant submits that even if Ex.P7 is taken into account, it emerges that the crime was committed under grave and sudden provocation, and the corresponding benefit must be extended to the appellant. We deeply pondered over the matter, but are not able to accede to the request of the learned counsel for the appellant. The reason is that, the appellant went to the deceased with predetermined state of mind and duly armed with a deadly weapon. In the normal course, a husband would never go to his wife, armed with a knife to make a request, to accompany him. It is not uncommon that during the discussion between the wife and husband, emotions arise and passions build up. In such cases also, the usual reaction would not be of, one stabbing the other. It is only when a thorough preparation and pre-mediated plan exists that a person would be armed with a weapon and wait for an occasion to attack. In such cases also, the usual reaction would not be of, one stabbing the other. It is only when a thorough preparation and pre-mediated plan exists that a person would be armed with a weapon and wait for an occasion to attack. If, in the ultimate analysis, the incident has taken place, the person, who is accused of committing the offence, cannot take shelter under the general exceptions, or the one under Section 302 IPC, such as grave and sudden provocation. As a matter of fact, it is a case, where, the appellant invited a situation by himself, to pave the way for committing the offence. 18. We do not find any basis to interfere with the judgment of the trial court. The Criminal Appeal is accordingly dismissed.