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2008 DIGILAW 150 (AP)

Bogi Bhadraiah v. State of Andhra Pradesh

2008-02-22

B.PRAKASH RAO, L.NARASIMHA REDDY

body2008
L. NARASIMHA REDDY, J :- Bogi Baby Rani was married to the appellant herein in the year 2000 and they had a female child out of the wedlock. At about 9 p.m., on 22.2.2003, she was admitted in the Government General Hospital, Khammam with serious bum injuries. Requisition was given to P.W.II, the Magistrate, to record the declaration of Baby Rani. In the declaration, she has stated that in the evening on that day, her husband, the appellant herein, had poured kerosene and set her on fire. The A.S.I. of Police, Karepalli, is said to have recorded the statement of Baby Rani at about 8 p.m. before she was sent to the hospital. Based on that, he registered Crime No.23 of 2003 under Section 307 of the Indian Penal Code (IPC). While undergoing treatment, the patient died in the midnight intervening 22/23.2.2003. Provision in the FIR was altered to Section 302 IPC. Inquest and post-mortem were conducted on the dead body. After the investigation was concluded, the Court of the V Additional Sessions Judge (FTC), Khammam at Kothagudem, framed charge against the appellant alleging that he caused the death of his wife and thereby committed an offence punishable under Section 302 IPC. The appellant pleaded not guilty. Through its judgment dated 24.2.2006, the trial Court convicted the appellant for the offence alleged against him and sentenced him to suffer rigorous imprisonment for life. Fine of Rs.1,000/- was imposed with a direction that in default of payment thereof, he shall undergo simple imprisonment for three months. The judgment of the trial Court is challenged in this appeal. 2. Sri C. Padmanabha Reddy, learned Senior Counsel, submits that though there are two dying declarations in this case, both of them suffer from very serious infirmities. As to Ex.P12, the dying declaration recorded by the A.S.I., learned Counsel submits that the same cannot be treated as proved, since the said A.S.I. was not examined as a witness. As to Ex.P 11, the dying declaration recorded by P.W.11, he submits that there are several infirmities such as difference of the name of the person, who recorded the statement, inconsistency as to the manner in which the deceased is said to have signed Ex.P 11 and the absence of any statement from P.W.13, who is said to have certified the condition of the patient. He further submits that almost all the witnesses examined on behalf of the prosecution did not support the case of the prosecution and the trial Court had convicted the appellant without there being any proper basis. 3. Learned Public Prosecutor, on the other hand, submits that even if Ex.P 12 is eschewed from consideration, EX.P11 can constitute the basis to sustain conviction against the appellant. He contends that the discrepancy pointed out in relation thereto is very trivial and the contents thereof are supported by the medical evidence. 4. That the deceased died on account of serious bum injuries, is evident from the post-mortem report, marked as Ex.P 18. There is no dispute that the appellant was married to the deceased. Therefore, it has to be examined as to whether the death of the deceased can be attributed to any acts or omissions, on the part of the appellant. 5. The prosecution examined as many as fourteen witnesses. The incident is said to have taken place at 6 p.m. on 22.2.2003. According to the prosecution P.Ws.1 to 3 have seen the deceased with severe bum injuries at about 6 p.m. and that they have shifted her initially to the police station, and thereafter to the hospital. These witnesses, however, did not support the case of the prosecution and accordingly, they were declared hostile. P.W.4 is a resident of Ellandu, the native place of the deceased. This witness spoke about the deceased coming to Ellandu and complaining about the disputes between herself and the appellant. This witness also was declared hostile. P.Ws.4 and 5 are the mother and the sister of the deceased respectively. Both of them were treated hostile. P.W.6 is said to have conducted panchayat between the deceased and the appellant and he too turned hostile. P.W.7 is the photographer. P.Ws.8 and 9 were also declared hostile. P.W.l0 is a witness for the inquest. 6. P.W.11 is the Magistrate, who recorded EX.P11. The evidence of this witness would be discussed at a little later. P.W.12 is the Investigating Officer. P.W.13 is the doctor, who admitted the deceased to the hospital and P.W.14 is the doctor, who conducted the post-mortem examination. 7. The initiation of the proceedings against the appellant commenced with the recording of Ex.P 12 by A.S.1. and registration of the case on the basis of the same. P.W.12 is the Investigating Officer. P.W.13 is the doctor, who admitted the deceased to the hospital and P.W.14 is the doctor, who conducted the post-mortem examination. 7. The initiation of the proceedings against the appellant commenced with the recording of Ex.P 12 by A.S.1. and registration of the case on the basis of the same. Apart from recording Ex.P12, the A.S.I. recorded the statement of PWs.l to 3. In fact, it is he, who is said to have laid substantial foundation to the case. However, for the reasons best known to it, the prosecution did not examine the A.S.I. Added to that, P.Ws.l to 3, whose statements were recorded by him, titled hostile. In fact, P.W.2 stated that when himself and P.W.l went to the police station along with the deceased, they did not find anybody there, and accordingly, they proceeded straight away to the hospital in the District Head Quarters. Therefore, non-examination of the A.S.I. would naturally invite an inference, contemplated under Section l14(g) of the Evidence Act. It is no doubt true that Ex.P 12 was marked by the C.T. of Police, who is examined as P.W.12. However, a suggestion was made to him to the effect that the A.S.I. did not record the statement of the deceased at all. Therefore, Ex.P 12 cannot be taken as proved and the same deserves to be eschewed from consideration. 8. Now remains Ex.P11, the dying declaration, recorded by the Magistrate. A dying declaration, if it gains the confidence of the Court as to its truthfulness, can constitute the sole basis and in some cases, without any corroboration to convict the accused. At the same time, the Court is required to be very cautious, and slow, to rest its conclusions only on the basis of uncorroborated dying declaration. Since almost all the witnesses, except the Magistrate, the Investigating Officer and the doctors, have turned hostile, Ex.P 11 needs to be examined with a bit of caution. 9. Out of inexperience or otherwise, PW.11 did not scrupulously follow the procedure prescribed under Rule 33(2) of the Criminal Rules of Practice, framed by the High Court of Andhra Pradesh. Though the preamble of Ex.P 11 contains to the effect that P.W.II has introduced herself to the patient relevant question and answer are not extracted. Since non-compliance to Rule 33 is not fatal, we do not undertake further discussion on this aspect. 10. Though the preamble of Ex.P 11 contains to the effect that P.W.II has introduced herself to the patient relevant question and answer are not extracted. Since non-compliance to Rule 33 is not fatal, we do not undertake further discussion on this aspect. 10. The name of the deceased is Bogi Baby Rani. However, in Ex.P11, the name of the person from whom the statement was recorded is mentioned as B. Devi Rani in the opening sentence, as well as the place where the L.T.I. is said to have been taken. We verified the original record and found that the name is mentioned as B. Devi Rani. Even if it is to be treated as a mistake in recording the name, we have come across a serious infirmity in Ex.P 11. Immediately after the signature of P.W.II, the following endorsement is made on Ex.P 11 as "L.T.I. of B. Devi Rani". In her statement in the Court, P. W. 11, however stated that she took the signature of the declarant. P.W.13 stated in his chief examination as under. "Deep bums all over the body, face except private parts. Anti-mortem in nature. The extent of bums is 99%." It is not as if P.W.II is not aware of the distinction between thumb impression on the one hand and signature on the other hand. A suggestion was made to this witness to the effect that the condition of the deceased was not ,such that she can put thumb impression. The suggestions gains strength from the evidence of P.W.13. When the entire body, except the private parts were found to have been burnt to the extent of 99%, hardly there exits any possibility for taking thumb impression of the patient, much less, her signature. Further, certification by P.W.13 did not precede the recording of the statement. The inconsistency between the contents of Ex.P 11 and the evidence of PW.11 is another factor. 11. When there is absolutely no other evidence and when the conviction has to be rested upon a solitary circumstance viz., to the dying declaration, the Com1 is required to be satisfied that such a declaration does not suffer any factual or legal infirmity. The infirn1ities and inconsistencies noticed by us have already been mentioned above. Added to this, the prosecution failed to prove the presence of the appellant at the place of occurrence. 12. The infirn1ities and inconsistencies noticed by us have already been mentioned above. Added to this, the prosecution failed to prove the presence of the appellant at the place of occurrence. 12. Under these circumstances, the criminal appeal is allowed. The conviction and sentence recorded in SC NoJ03 of 2003 on the file of the V Additional Sessions Judge (FTC), Khammam at Kothagudem, dated 14.2.2006, against the appellant-Bogi Bhadraiah, S/o. Satyall1, are set aside. He shall be released forthwith, unless his presence is required in any other case.