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2012 DIGILAW 262 (AP)

Vaddy Venkatappa v. State of A. P.

2012-03-12

N.V.RAMANA, P.DURGA PRASAD

body2012
JUDGMENT N.V. Ramana, J. 1. This Criminal Appeal, under Section 374 (2) of the Code of Criminal Procedure, is filed questioning the conviction and sentence imposed against the appellant herein, by judgment dated 14.8.2007 passed in S.C. No. 589 of 2003 on the file of the Court of the VI Additional Sessions Judge (Fast Track Court), Vikarabad, Ranga Reddy District. 2. The case of the prosecution, in brief, is as follows:– 3. That the appellant is the husband of the deceased Balamani and their marriage took place about eight years prior to the incident and they were blessed with a daughter. That one year after their marriage, the appellant got married again to one Narsamma, who is the resident of Dasthagiripet Village of Tandur. Thereupon, disputes arose between Balamani and the appellant and Balamani started living with her parents at Vikarabad and used to visit the appellant at Saipur village now and then and stay with him for some days. 4. On the evening of 4.2.2003, Balamani went to her husband and on the next day morning i.e. on 5.2.2003, a quarrel took place between her and the appellant and Narsamma regarding a house property. On the same day, at about 9.30 p.m., both the appellant and Narsamma, with an intention to kill Balamani, poured kerosene on her and set her fire, due to which she sustained burn injuries. She was immediately shifted to Government Civil Hospital, Tandur, for treatment, and while undergoing treatment there, she succumbed to the injuries on 13.2.2003. 5. Based on the statement given by the deceased while she was undergoing treatment in the hospital, the Sub-Inspector of Police, Tandur, registered a case in Crime No. 24 of 2003 for the offence punishable under Section 307 of Indian Penal Code, against the appellant and Narsamma, and took up investigation. After the death of the deceased on 13.2.2003, the Section of law was altered from 307 I.P.C. to 302 I.P.C. and after completion of investigation, the Inspector of Police filed charge sheet for the offence punishable under Section 302 I.P.C. against the appellant and Narsamma as Al and A2. 6. Since A2 Narsamma has jumped bail, case against her was split up and numbered as S.C. No. 417 of 2004. 7. 6. Since A2 Narsamma has jumped bail, case against her was split up and numbered as S.C. No. 417 of 2004. 7. The Sessions Judge framed charge against the appellant for the offence punishable under Section 302 I.P.C. The appellant pleaded not guilty for the said charge and claimed to be tried. 8. To prove the guilt of the appellant, the prosecution examined P.Ws. l to 7 and marked Exs. P1 to P6. The appellant adduced no evidence in defence. 9. The Sessions Judge, having appreciated the entire evidence available on record, held the appellant guilty of the offence punishable under Section 302 I.P.C. and convicted and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 1,000/- in default to undergo simple imprisonment for a period of one month. 10. The counsel appearing for the appellant submits that there is no material to connect the appellant with the present crime that EX. P2 does not contain the certificate of the duty doctor as regards the mental condition of the deceased to give the statement and in the absence of such certificate, the Court below erred in considering EX. P2 as dying declaration of the deceased, that P.W.4 is not the eyewitness for the actual incident and there are contradictions in her evidence and it also does not match with the evidence of P.W.6–Investigating Officer, on many aspects, and hence the prosecution failed to establish the guilt of the appellant beyond all reasonable doubt. She, therefore, contends that the conviction and sentence imposed by the Court below against the appellant cannot be sustained and is liable to be set aside. 11. The Additional Public Prosecutor for the respondent–State supported the judgment under appeal and submitted that as the prosecution has proved the guilt of the appellant beyond all reasonable doubt, the Court below found him guilty for the offence punishable under Section 302 I.P.C. and accordingly imposed the conviction and sentence by the judgment under appeal, which is just and proper and needs no interference in this appeal. 12. We have heard the counsel for the appellant and the Additional Public Prosecutor for the State and perused the judgment under appeal and other material available on record. 13. 12. We have heard the counsel for the appellant and the Additional Public Prosecutor for the State and perused the judgment under appeal and other material available on record. 13. The point that arises for consideration in the present appeal is whether the prosecution could establish the guilt of the accused for the offence punishable under Section 302 I.P.C. beyond all reasonable doubt? 14. To consider this point, it is necessary to refer to the evidence adduced by the prosecution. 15. P.W. l is the mother of the deceased. P.Ws.2 and 3 are the relatives of the deceased. P.W.4 is the person residing in the vicinity of the accused. P.W.5 is the mediator for inquest. P.W.6 is the Investigating Officer. P.W.7 is the medical officer. 16. The evidence of P.Ws. 1 to 3, who are the mother and relatives of the deceased, is circumstantial evidence. P.W.1, the mother of the deceased, deposed about the appellant marrying Narsamma, during the existence of his marriage with the deceased, and his harassing the deceased. According to her, she was informed by P.W.4 about the incident, on the next date of incident and then she went to the hospital and the deceased told her that the appellant and Narsamma set her ablaze. 17. P.W.2 is the brother-in-law of P.W.1 and according to his evidence, he has only seen the dead body of the deceased in the hospital and he did not speak anything about the incident or the disputes between the deceased and the accused. 18. P.W.3, who is also the relative of the deceased, deposed that he has seen the dead body of the deceased in the hospital and noticed bum injuries on the dead body. Except stating that the neighbours of the appellant informed him that the appellant and his second wife set Balamani ablaze, he too did not depose anything about the incident or the disputes between the deceased and accused. 19. P.W.5, who is the mediator for inquest, deposed about the S.I. of Police, Tandur conducting inquest over the dead body of the deceased in his presence. 20. P.W.6, the Sub Inspector of Police, deposed about his registering the case on the basis of Ex. P2–statement of the deceased recorded by him, and the investigation conducted by him and further investigation by the Circle Inspector of Police. 21. 20. P.W.6, the Sub Inspector of Police, deposed about his registering the case on the basis of Ex. P2–statement of the deceased recorded by him, and the investigation conducted by him and further investigation by the Circle Inspector of Police. 21. P.W.7, who worked as the Superintendent of Government Civil Hospital, Tandur, identified the handwritings and signature of the doctor namely Dr. V. Prasad Rao, who conducted post mortem examination on the dead body of the deceased. He deposed that as per EX. P6–post mortem examination report, the cause of death of the deceased is toxaemia due to extensive burns. 22. Thus, the only independent witness to speak about the incident is P.W.4, who is said to be residing in the vicinity of the house of the appellant. However, she is not the eyewitness to the actual incident. It is her evidence that she rushed to the house of the appellant, on observing flames in the house of the appellant, and found the deceased in flames and the people gathered there extinguished the flames and then she took the deceased to hospital, while the appellant and Narsamma ran away. It is her further evidence that the deceased was conscious at that time and she told her that while Narsamma caught hold her, the appellant poured kerosene on her and set her ablaze. 23. While in her chief-examination, P.W.4 stated that she found the deceased in flames on reaching the scene of offence, in the cross-examination, she has categorically deposed that by the time she went to the scene of offence, flames were extinguished and she does not know how they were extinguished. Further, contrary to her statement in the chief-examination that the deceased was conscious when she went to the scene of offence and she told her that the appellant poured kerosene on her and set her ablaze, she deposed in her cross-examination that by the time she went to the scene of offence, the deceased was unconscious. Thus, P.W.4 made conflicting statements in her evidence. Thus, P.W.4 made conflicting statements in her evidence. Further, her statement that, after admitting the deceased in hospital, she went to police station and gave complaint and took police to the hospital is not supported by the evidence of P.W.6–Investigating Officer, who, in his cross-examination, stated that P.W.4 did not give any complaint on the night of incident and that on receipt of information from Tandur Government Hospital, he went to the hospital and recorded the statement of the deceased. He has also categorically stated that P.W.4 did not state before him that the appellant and Narsamma ran away from the house and that the deceased informed her that the appellant poured kerosene on her and set her ablaze, while Narsamma caught hold her. Thus, the evidence of P.W.4 is inconsistent with the evidence of P.W.6. This a part, in the cross-examination of P.W.4, it was elicited that the appellant is the cousin of her husband, that she is residing separately from her husband, and since two months, her husband, the appellant and his mother are threatening to kill her. This piece of evidence of P.W.4 coupled with the conflicting and inconsistent statements made by her, as discussed above, creates a doubt as regards the veracity of her evidence. 24. The other important evidence relied on by the prosecution, to connect the accused with the offence, is Ex. P2–statement of the deceased recorded by P.W.6 in the hospital. It does not contain the certificate of the duty doctor, certifying that the deceased was in fit state of mind to depose its contents. P.W.6, though deposed in his chief-examination that he recorded the statement of the deceased after consulting the duty doctor, admitted in his cross-examination that he did not obtain the certificate of the duty doctor on Ex. P2. He did not furnish the reasons for his failure to obtain the same. In the absence of attestation by the duty doctor as regards the mental condition of the deceased, on Ex. P2 and in the absence of any evidence about the mental condition of the deceased, it is not safe to rely upon Ex. P2 statement even though it can be treated as dying declaration of the deceased. 25. In the absence of attestation by the duty doctor as regards the mental condition of the deceased, on Ex. P2 and in the absence of any evidence about the mental condition of the deceased, it is not safe to rely upon Ex. P2 statement even though it can be treated as dying declaration of the deceased. 25. Further, even according to P.W.6, either in Ex.P2–statement of the deceased or Ex.P3–F.I.R. or charge sheet, there was no mention about receipt of message by him from the hospital about the admission of the deceased with burn injuries. Though he stated that after registering the case and issuing Ex. P3–F.I.R. on the basis of Ex. P2–statement, he again went to the hospital and recorded the detailed statement of the deceased, no such statement was produced. It is also not known as to why he did not examine the neighbours of the deceased and other persons of the locality, though number of persons were said to have gathered at the time of incident and why he did not take any steps for getting the dying declaration of the deceased recorded by the local Magistrate, though the deceased was alive for about 9 days after the incident. These laches on the part of the investigating agency are fatal to the case of the prosecution. 26. For the foregoing discussion, we are of the considered opinion that the prosecution failed to establish the charge framed against the appellant beyond reasonable doubt. Hence, the appellant cannot be held guilty for the offence punishable under Section 302 I.P.C. and the conviction and sentence recorded against him for the said offence, is liable to be set aside. 27. In the result, the criminal appeal is allowed and the conviction and sentence imposed against the appellant, by judgment dated 14.08.2007 passed in S.C. No. 589 of 2003 on the file of the VI Additional Sessions Judge (Fast Track Court) Vikarabad, Ranga Reddy District, is hereby set aside. The appellant shall be set at liberty forthwith, if he is not required in any other crime, and the fine amount, if any, paid by him shall be refunded to him.