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2008 DIGILAW 69 (AP)

Padi Savitri v. State of Andhra Pradesh

2008-02-01

B.PRAKASH RAO, L.NARASIMHA REDDY

body2008
JUDGMENT: L. Narasimha Reddy, J. The Court of II Additional Sessions Judge (Fast Track Court) at Parvathipuram tried Padi Savithri-A1 and her son, Padi Ramesh-A2 for the offence of committing murder of Padi Malathi, the daughter-in-law and the sister-in-law of the two accused respectively. Charges under Section 302 of the Indian Penal Code (IPC) against A1, under Section 302 read with 114 IPC against A2 and under Sections 304-B and 498-A IPC and Sections 3 and 4 of the Dowry Prohibition Act against both of them were framed. Accused pleaded not guilty. Through judgment dated 06.01.2006, the trial Court acquitted A2 but convicted A1 of the offence under Section 302 IPC and sentenced her to undergo rigorous imprisonment for life and to pay fine of Rs.1,000/-, in default to suffer rigorous imprisonment for six months. Hence, this appeal by A1. 2. Malathi was married to Murali-P.W.5, the son of A2 and brother of A1 about three years prior to April 2005. On 06.04.2005, Malathi was admitted in Area Hospital, Parvathipuram with severe burn injuries. The Duty Doctor-P.W.15 gave intimation to the local Magistrate-P.W.4, who recorded the statement. By the time P.W.4 reached the hospital, the Sub Inspector of Police, Parvathipuram recorded the statement of Malathi and based on the same, he registered F.I.R in crime No.12 of 2005, initially under Sections 307 and 498-A read with Section 34 IPC against the accused. Thereafter, P.W.5-the Magistrate recorded the statement of Malathi. While undergoing treatment in the hospital, she succumbed to the injuries on 11.04.2005. The provision of law in F.I.R. was altered and investigation was taken up. 3. The prosecution alleged that A1 and A2 were harassing the deceased for additional dowry and on the date of the incident, the minor child of the deceased went to latrine somewhere in the open place and thereupon, A1 had questioned and admonished Malathi. The latter is said to have replied stating that she would take care of the child and feeling that she had dared to reply them in a derogatory manner, A1 and A2 have poured kerosene on Malathi and set her on fire. It was also alleged that P.W.5, husband of Malathi, who was very much in the house, had rescued his wife by putting off the fire with the help of two others. 4. It was also alleged that P.W.5, husband of Malathi, who was very much in the house, had rescued his wife by putting off the fire with the help of two others. 4. The trial Court found that the prosecution failed to establish the charge against A2, but was satisfied with the case against A1 as proved. It accordingly awarded sentence. Hence, this appeal by A1. 5. Smt.Gayatri Reddy, learned counsel for the appellant, referred to the two dying declarations, namely, Exs.P4 and P24 in this case and submits that Ex.P24 was not at all proved, since the Sub Inspector of Police, who recorded it, was not examined. She contends that there is nothing on record to prove Ex.P4, when the trial Court was not justified in convicting the appellant, only on the basis of Ex.P4. She contends that almost all the non-official witnesses including the father of the deceased have turned hostile and there was absolutely no basis for the conviction of the appellant. 6. Learned Public Prosecutor, on the other hand, submits that Ex.P4 presents the truthful version as to the circumstances that led to the death of the deceased and that it is supported by the evidence of P.W.15-the doctor, who treated the deceased as well as issued requisition form for recording the dying declaration. He submits that Ex.P24 is nothing but a source of information that constituted the basis to set the process of law into motion. It cannot be subjected to the same test or the statement recorded under Section 161 of the Code of Criminal Procedure (Cr.P.C.). 7. There is no dispute as to the relationship of the deceased on the one hand and the various witnesses that have been examined on the other. She was married to P.W.5, three years prior to the incident and both of them were blessed with a child. A1 is the mother and A2 is the brother of P.W.5 respectively, whereas P.W.9 is the father of the deceased. This is one of the peculiar cases where no report, whatever, was submitted by any of the kin of the deceased, though she was admitted in the Area Hospital with serious burn injuries. The first one to act in the matter was P.W.15, the Civil Assistant Surgeon of the Area Hospital. This is one of the peculiar cases where no report, whatever, was submitted by any of the kin of the deceased, though she was admitted in the Area Hospital with serious burn injuries. The first one to act in the matter was P.W.15, the Civil Assistant Surgeon of the Area Hospital. He gave an intimation-Ex.P15, to P.W.4-the Additional Judicial Magistrate of First Class, Parvathipuram, with a request to come and record the dying declaration of Malathi. Between the issuance of Ex.P15 and recording of the dying declaration of the deceased by P.W.4, the Sub Inspector of Police arrived at the hospital and recorded the statement of the deceased. The said statement constituted the basis, to register the F.I.R., Ex.P24. The question as to whether it can be treated as dying declaration, pure and simple, or a source of information, to set the machinery of law in motion, would be considered, a bit later. 8. P.W.4 arrived at the hospital at 9 a.m. He identified the patient and put the introductory questions, to her duly disclosing his identity. Thereafter, P.W.15-the doctor certified the condition of Malathi as being conscious, coherent, and in a sound state of mind, for recording of the statement. Thereafter the certification, P.W.4 proceeded to record the statement. The relevant portion of the same reads as under. "Today Morning I was working in the backyard. My baby went to Latrine and I did not observe the same, and by that time my mother-in-law was sleeping and when she woke up and noticed the state of the baby and asked me as to why I did not clean the same? On that, I answered that I did not noticed it. For that reason there is quarrel between myself and my Mother-in-law. She also stated that her mother-in-law used to quarrel with me for one reason or the other, stating that she did not bring this thing or that thing since her marriage and she also proclaimed that she will kill her and pour kerosene on her though she protest and lit fire with match stick, and due to the reason she is in that condition. At that time my husband is in the backyard of their house and that her husband and villagers brought me to the Hospital." 9. The prosecution examined P.W.4-the learned Magistrate to prove the dying declaration, Ex.P4. At that time my husband is in the backyard of their house and that her husband and villagers brought me to the Hospital." 9. The prosecution examined P.W.4-the learned Magistrate to prove the dying declaration, Ex.P4. He has narrated the manner in which the statement was recorded in meticulous details. The entire cross-examination of this witness is to the following effect. "I cannot say whether there was any possibility to influence the declaration by her father to give the above statement." 10. Another important witness examined by the prosecution is P.W.15. This witness spoke about the issuance of intimation, and certification done by him, before the dying declaration was recorded. Nothing contradictory was elicited from this witness, by the defence. The post mortem of the dead body was conducted by P.W.14. and the report thereof is Ex.P14. The death of the patient was squarely attributed to the burn injuries. 11. It is true that dying declarations must be examined meticulously and conviction can be based upon them, if only there exists proper corroboration. It is also true that in the instant case, except P.W.4-the learned Magistrate, the Civil Assistant Surgeon, who conducted autopsy and issued requisition for recording dying declaration, P.Ws.14 and 15 and the Investigating Officers, almost all the witnesses including the father of the deceased have turned hostile. But the Courts are not helpless in arriving at a proper and just conclusion with the help of the circumstantial evidence. 12. Ex.P4 stands proved with the examination of P.W4-the learned Magistrate, who recorded it. We are of the considered opinion that the evidence of P.W.15 and the medical evidence can be treated as necessary corroboration for the same. 13. Strenuous efforts were made by the learned counsel for the appellant to attack Ex.P24 and thereby, to dilute Ex.P4. It has already been pointed out that Ex.P4 is a dying declaration pure and simple, whereas Ex.P24 is an F.I.R. As a source of information for registering the F.I.R., the police official, who registered it, had relied upon the statement recorded by him from the victim. Inasmuch as it was recorded from a person, who was virtually facing death, it is also prone to be treated as dying declaration. All the same, being the source of information for registering the F.I.R., it cannot be subjected to the same test as any other dying declaration. Inasmuch as it was recorded from a person, who was virtually facing death, it is also prone to be treated as dying declaration. All the same, being the source of information for registering the F.I.R., it cannot be subjected to the same test as any other dying declaration. Section 190 Cr.P.C. provides for various sources of information, on the basis of which, the machinery of law can be set in motion, to investigate into a crime. The statement appended to Ex.P24 is in the form of information, for registering the case, than a piece of evidence in the form of dying declaration. 14. The point urged on behalf of the appellant is that Ex.P24 cannot be relied upon since the Sub Inspector of Police, who recorded it, was not examined. In this regard, it needs to be observed that the investigation into the case was undertaken by several officials and the major part of it was done by P.W.19. He stated the manner in which the F.I.R. was registered and the various steps were taken subsequently. It is important to note that it is not as if, the Sub Inspector of Police did not record the statement at all. In fact, a specific suggestion was made to P.W.19 to the effect that the Sub Inspector of Police recorded the statement from the deceased, but under the influence of her father, P.W.9. In other words, the factum of recording the statement by the Sub Inspector of Police was not disputed, but only a suggestion was made, as regards the circumstances under which it was recorded. At any rate, since a complaint or the source of information for the police to set the law in motion, is not a substantive piece of evidence, non-examination of the one, who recorded it, in our opinion, is not fatal. 15. Even assuming that Ex.P24 answers the description of the dying declaration, we are convinced that there is no conflict between Ex.P24 on the one hand and Ex.P4 on the other. The necessity to doubt two or more dying declarations arises only when conflicts are discerned. As observed earlier, there are no variations or contradictions between the two. Even if Ex.P24 is eschewed for consideration for any reason, there is no basis to doubt the correctness and authenticity of Ex.P4. 16. The necessity to doubt two or more dying declarations arises only when conflicts are discerned. As observed earlier, there are no variations or contradictions between the two. Even if Ex.P24 is eschewed for consideration for any reason, there is no basis to doubt the correctness and authenticity of Ex.P4. 16. We are convinced that the appellant had resorted to the heinous crime of putting the deceased to death, by pouring kerosene and setting her, on fire. It is not at all admissible to permit her to take shelter under the hyper technicalities. The evidence of P.Ws.4, 14, 15 and 19 is so strong and conclusive that it can constitute basis for convicting the appellant. We are not inclined to interfere with the judgment rendered by the trial Court. 17. The Criminal Appeal is, accordingly, dismissed.