Research › Search › Judgment

Andhra High Court · body

2020 DIGILAW 342 (AP)

G. Eswaramma v. State of A. P.

2020-05-07

B.KRISHNA MOHAN, C.PRAVEEN KUMAR

body2020
JUDGMENT : C. Praveen Kumar, J. Heard through Video Conference (Blue Jeans App). 2. The appellants/A-1 and A-2, who are the daughter and mother/wife and mother-in-law of one Gurram Venkateswara Rao (hereinafter, referred to as “the deceased”), preferred this Criminal Appeal under Section 374(2) Cr.P.C. assailing their conviction and sentence imposed by the learned XV Additional District and Sessions Judge, Nuzvid vide judgment, dated 9.6.2015, in Sessions Case No.244 of 2013 for the offence punishable under Section 302 read with 34 I.P.C. wherein they were sentenced to undergo imprisonment for life and to pay a sum of Rs.500/-each, in default, to suffer simple imprisonment for a period of six (6) months. 3. The charge levelled against them is that on 29.1.2012, at about 11:00 P.M., A-1 and A-2 caused the death of the deceased by pouring boiled oil on his body while he was sleeping and thereafter, hitting him on his head with a wooden sliver. 4. The facts in issue are as under: P.Ws.1 to 4 are the persons known to the deceased and they were working in NSL factory. P.W.5 is the brother of the deceased while P.W.6 is the mother of the deceased. P.Ws.7 and 8 are the children of the deceased. The marriage between the deceased and A-1 took place about 18 years prior to the incident and out of wedlock, they were blessed with one son and one daughter. The deceased used to work in NSL Factory. He used to inform P.W.5 that his wife is having illicit intimacy with a person of weavers’ community and in spite of advising her not to have such relationship, she is not caring for the same. It is said that the person with whom she is having illicit relationship is a resident of Mustabad Village and that the said person actually belongs to Buddavaram Village. Though he actually belongs to Buddavaram Village, he was eking out his livelihood by running a small hotel at Mustabad Village. It is said that when the deceased leaves the factory for duty, A-1 used to leave the house with the said person and come back in the evening. These facts were informed to P.W.5 when the deceased came and stayed in their house for a period of four days by applying leave. It is said that when the deceased leaves the factory for duty, A-1 used to leave the house with the said person and come back in the evening. These facts were informed to P.W.5 when the deceased came and stayed in their house for a period of four days by applying leave. When A-1 left home to her parents’ house, the deceased is said to have gone to Buddavaram Village and brought her back. Along with her, A-2, who is the mother of A-1, also accompanied her to the house of the deceased. The incident of accused pouring boiling oil and then, hitting the deceased with a wooden piece on his head was informed to P.W.5 and others by the son of the deceased, who was examined as P.W.7. As it was informed that the deceased was admitted in the Government hospital, Eluru, P.Ws.5 and 6 went to the hospital. By that time, several workers of the factory were present there. They noticed the deceased lying with burn injuries all over his body. Though the deceased wanted to say something, he could not speak. On the intervening night of 29/30.1.2012, P.W.10 – Head Constable from O.P. Post, Government General Hospital, Eluru received requisition from C.M.O. about the admission of the deceased with burn injuries and bleeding head injury. Immediately, he proceeded towards the hospital, identified the patient with the help of duty doctor and recorded his statement. Ex.P-9 is the hospital intimation and Ex.P-10 is the statement recorded by P.W.10 which was signed by the duty doctor. He also obtained the signature of a witness by name V.Prasad. He then forwarded the statement to the Station House Officer, Veeravalli Police Station for necessary action. P.W.11, who is the Head Constable of Veeravalli Police Station, on receipt of a statement and the hospital intimation from P.W.9, registered a case in Crime No.19 of 2012 for the offence punishable under Section 307 read with 34 I.P.C. and issued Ex.P-11 – F.I.R. Thereafter, he left the police station to the Government Hospital, Eluru, identified the injured with the help of duty doctor and recorded his statement. From there, he went to the scene of offence situated at NSL Factory, Veeravalli Village, particularly, Q.No.47, F Block, examined the scene of offence before the mediators and prepared an observation report, which is placed on record as Ex.P-12. From there, he went to the scene of offence situated at NSL Factory, Veeravalli Village, particularly, Q.No.47, F Block, examined the scene of offence before the mediators and prepared an observation report, which is placed on record as Ex.P-12. At the scene of offence, he seized two blankets under M.Os.1 and 2, night wear under M.O.3, aluminium cauldron under M.O.4, bag piper whisky 180 ml., empty plastic bottle under M.O.5 and oil saturated wooden piece under M.O.6. He also got photographed the scene of offence. Ex.P-13 is the bunch of photos (five in number). Ex.P-14 is the C.D. He secured the presence of one P.Lakshmi Narayana (L.W.2), P.Ws.2 to 4, 6 and one P.Nagaraju (L.W.6) and recorded their statements and later, handed over the investigation to P.W.13. P.W.13 – Inspector of Police, Veeravalli Police Station took up the investigation of the case from P.W.11 and recorded the statements of the witnesses. At this stage, it is to be noted that on the intervening night of 29/30.1.2012, P.W.14 – II Additional Judicial Magistrate of First Class, Eluru received a requisition from C.M.O., Government Hospital, Eluru for recording the dying declaration of the injured. Immediately, he proceeded to the hospital and identified the injured with the help of duty doctor and after ascertaining his mental condition, recorded his dying declaration. Ex.P-19 is the intimation received from the Government Hospital, Eluru and Ex.P-20 is the dying declaration. P.W.15 – Circle Inspector of Police, Hanuman Junction Circle, proceeded with the investigation on receipt of death intimation on 4.2.2012 and visited the Government Hospital, Eluru. Since the injured was dead by then, he posted a guard and again, on the next day, he went to the scene of offence and verified the same with the earlier report prepared by P.W.11. Thereafter, he proceeded to Government Hospital, Eluru where he conducted inquest over the dead body from 11:00 A.M. to 2:00 P.M. in the presence of P.W.9 and others. Ex.P-8 is the Inquest Report. During inquest, he examined P.Ws.1, 5, 6 and 7 and recorded their statements. Thereafter, the dead body was forwarded to the Government Hospital for post mortem examination. P.W.12 – Civil Assistant Surgeon, District Hospital, Eluru conducted post mortem over the dead body and issued Ex.P-16 – Post Mortem Certificate. According to him, there were burn injuries on the hands, face, anterior abdomen and back and also lacerated injury over parietal region. Thereafter, the dead body was forwarded to the Government Hospital for post mortem examination. P.W.12 – Civil Assistant Surgeon, District Hospital, Eluru conducted post mortem over the dead body and issued Ex.P-16 – Post Mortem Certificate. According to him, there were burn injuries on the hands, face, anterior abdomen and back and also lacerated injury over parietal region. According to him, the deceased died due to sepsis and secondary to burns. On 6.2.2012, P.W.15 arrested A-1 and A-2 at their house at Buddavaram Village, explained the grounds of arrest and remanded them to judicial custody. After collecting necessary documents, a charge sheet came to be filed, which was taken on file as P.R.C.No.35 of 2012 on the file of the learned Additional Judicial Magistrate of First Class, Nuzvid for the offence punishable Section 302 read with 34 I.P.C. against A-1 and A-2. 5. On appearance of the accused, copies of the documents, as required under Section 207 Cr.P.C., were supplied to them. As the offences are triable by a Court of Sessions, the case was committed to the Court of the Sessions under Section 209 Cr.P.C. Accordingly, the same was made over to the Court of the learned XV Additional District and Sessions Judge, Nuzvid for trial and disposal in accordance with law. 6. Basing on the material available on record, charge, as referred to earlier, came to be framed, read over and explained to the accused in Telugu to which, they pleaded not guilty and claimed to be tried. 7. To substantiate its case, the prosecution examined P.Ws.1 to 15 and got marked Exs.P-1 to P-22 and M.Os.1 to 6. After the closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C., with reference to the incriminating circumstances appearing against them in the evidence of the prosecution witnesses to which they denied. No oral or documentary evidence was adduced on behalf of the accused. 8. Out of 15 witnesses examined by the prosecution, P.Ws.1 to 4, 7 and 8 did not support the prosecution case and they were treated hostile by the prosecution. However, basing on the dying declaration recorded by the Magistrate and the evidence of P.Ws.5 and 6, the trial Court convicted and sentenced both the accused as mentioned supra. Challenging the same, the present appeal came to be filed by them. 9. However, basing on the dying declaration recorded by the Magistrate and the evidence of P.Ws.5 and 6, the trial Court convicted and sentenced both the accused as mentioned supra. Challenging the same, the present appeal came to be filed by them. 9. Sri V.Raghu, learned counsel appearing for the appellants/A-1 and A-2, would contend that the evidence of P.Ws.5 and 6 amply indicate that the deceased was not in a position to speak and that being so, it is difficult to believe that he has made a statement before the Magistrate, who came there for recording the dying declaration. He further submits that the evidence of P.Ws.5 and 6 is hearsay, as their source of information is P.W.7, who did not support the prosecution case. It is his case that when the dying declaration is suspicious and unable to be rejected, there is no other evidence on record to connect the accused with the crime. 10. The same is opposed by the learned Public Prosecutor contending that the doctor, who accompanied the Magistrate, examined the patient and made an endorsement that he is conscious and in a fit state of mind. That being so, the argument of the learned counsel for the appellants that the deceased was unconscious and not in a fit condition to give a statement cannot be accepted. He further pleads that though P.Ws.1 to 4, 7 and 8 did not support the prosecution case, the evidence of P.Ws.5 and 6 corroborates the evidence of dying declaration and as such, the conviction and sentence imposed by the trial Court warrants no interference. 11. The point that arises for consideration is: “Whether the prosecution is able to prove the guilt of the accused for the offence punishable under Section 302 read with 34 I.P.C. beyond all reasonable doubt?” 12. POINT:- It is no doubt true that P.Ws.1 to 4 and P.Ws.7 and 8, the children of the deceased, did not support the prosecution case and were treated hostile by the prosecution. It is also not in dispute that the source of information for P.Ws.5 and 6 was P.W.7, who did not speak about the very incident itself. POINT:- It is no doubt true that P.Ws.1 to 4 and P.Ws.7 and 8, the children of the deceased, did not support the prosecution case and were treated hostile by the prosecution. It is also not in dispute that the source of information for P.Ws.5 and 6 was P.W.7, who did not speak about the very incident itself. Therefore, the version of P.Ws.5 and 6 with regard to the manner in which the incident took place cannot be accepted since the person who informed them about the incident or source of their information, did not speak about the incident in question. It is no doubt true that P.Ws.5 and 6, in their evidence in chief, stated that by the time they went there, the deceased was not in a position to speak but their evidence is silent as to when and at what point of time they went and met the deceased but P.W.14, the learned Magistrate who received intimation about the admission of the injured in the hospital on the intervening night of 29/30.1.2012 under Ex.P-19, proceeded to the hospital, identified the injured with the help of duty doctor and on being satisfied with regard to the mental condition of the injured and after obtaining the certificate from the doctor with regard to the consciousness and coherence of the injured, recorded his statement, which is placed on record as Ex.P-20. Apart from that, the evidence of P.W.10 itself shows that immediately, on receipt of information, he proceeded to the hospital and recorded the statement of the injured, which is placed on record as Ex.P-10, which formed the basis for issuing the F.I.R. In the statement recorded by P.W.10, the deceased categorically stated about the manner in which the incident took place. According to him, his wife had illegal contacts with others and he used to scold her several times about the illegal contacts. On 29.1.2012, at 11:00 P.M., while he was sleeping at the quarter of N.S.L. Threads Quarters, his wife and mother-in-law brought boiled oil and poured on his body. When he cried aloud, his wife beat him on his head with an iron rod. He received blood injury on his head and burn injuries on his chest, back, face, two palms and two shoulders and the skin came out due to burn injuries. Unable to bear the pain, he ran out of the house. When he cried aloud, his wife beat him on his head with an iron rod. He received blood injury on his head and burn injuries on his chest, back, face, two palms and two shoulders and the skin came out due to burn injuries. Unable to bear the pain, he ran out of the house. Along with him, one Prasad and Laxminarayana, who were also working in the factory, came and took him in an auto to Eluru Government Hospital where the doctor admitted him in M.S. Ward. 13. From a reading of the above statement, it is clear that when the deceased was sleeping, both the accused poured boiled oil and thereafter, A-1 beat him with an iron rod. 14. Coming to the dying declaration recorded by the Magistrate, it is to be noticed here that his version in the said dying declaration is to the effect that on the date of incident, while he was sleeping at his house, his wife and mother-in-law poured boiled oil and then beat him on his head. He also speaks about the illicit intimacy of A-1 with another person and that she used to leave with him often. The only variation with regard to the two dying declarations is with regard to the specific role of A-1 in beating the deceased with an iron rod. 15. Insofar as beating of the deceased with an iron rod by A-1 is concerned, in view of the variation in the two dying declarations with regard to beating, it cannot conclusively be said that it was A-1 who beat the deceased on his head, more so, when the recovery of weapon alleged to have been used by the accused is a wooden stick and not an iron rod. Since the incident took place while the deceased was sleeping, which is evident from the statement recorded by the Magistrate, a doubt arises as to which of the accused has beat the deceased with the weapon. 16. Be that as it may, it is to be noted here that the conviction is under Section 302 read with 34 I.P.C. and not under Section 302 simplicitor. Therefore, the variation with regard to using of weapon, in our view, may not matter much. Therefore, the presence and participation of the accused in the commission of the offence stands established through the dying declarations recorded by P.W.10 and also P.W.14. Therefore, the variation with regard to using of weapon, in our view, may not matter much. Therefore, the presence and participation of the accused in the commission of the offence stands established through the dying declarations recorded by P.W.10 and also P.W.14. At this stage, we intend to refer to the evidence of the doctor, who conducted post mortem examination. 17. P.W.12 is the Doctor who conducted autopsy over the dead body of the deceased on 5.2.2012 at 3:15 P.M. He noticed burn injuries on both hands, face, abdomen and back. He also noticed sutures over parietal region. However, he categorically says that the death was due to sepsis and secondary to burns. 18. From the above, it appears that the injury caused on the head of the deceased is not fatal. Had it been so, the doctor would have categorically stated that the said injury on head was also fatal. In the cross examination, the doctor stated that the percentage of injuries on the body will be around 40% to 45% and there are chances of survival after burns if they were treated in a hygenic condition. He also states that there is a possibility of getting into shock and depression by the patient due to such type of burns. It would be useful to extract the relevant portion of the evidence of the doctor, which is as under: “……External injuries: Both the hands were burns. Burnt injuries over the face. Burnt injuries over the anterior abodomenal and back. “ inches lacerated and 2 inches sutural ever parital region. The deceased died due to Sebsis and secondary to burns. Ex.P16 is the post mortem certificate issued by me. Cross examination :- I have not noted the percentage of burn injuries but it is around 40 to 45 percent. There are chances of survival after burns patient who sustained such injuries in case he was treated in hygienic condition. There is possibility of getting into the shock and depression by the patient due to such type of injuries. Usually we wont issue sedation to give patient….” From the evidence of the doctor, it is very clear that the death was due to sepsis and secondary to burns and if the patient was treated in a hygienic condition, there was every chance of survival meaning thereby, that the conditions under which the treatment given was not hygienic. 19. Usually we wont issue sedation to give patient….” From the evidence of the doctor, it is very clear that the death was due to sepsis and secondary to burns and if the patient was treated in a hygienic condition, there was every chance of survival meaning thereby, that the conditions under which the treatment given was not hygienic. 19. Though learned Public Prosecutor tried to contend that the case pertains to Explanation (2) to Section 299 I.P.C., in our view, the same may not be applicable to the instant case since the said explanation speaks about the death of the deceased in spite of providing proper remedies and skilful treatment, which is not so in the present case having regard to the admission of the doctor in the cross examination. Hence, the prosecution was able to prove the involvement of both the accused in the instant case. 20. In the judgment of the Apex Court in B.N.Kavatakar Vs. State of Karnataka, 1994 SCC Crl.579 it is held at para No.9 as under: “The next question that comes up for our consideration is what is the nature of the offence that the appellants have committed. The Medical Officer who conducted autopsy on the dead body of the deceased has opined that the death was as a result of septicaemia secondary to injuries and peritonitis. As we have indicated above, the deceased died after five days of the occurrence in the hospital. On an overall scrutiny of the facts and circumstances of the case coupled with the opinion of the Medical Officer, we are of the view that the offence would be one punishable under Section 326 read with Section 34 IPC.” 21. In Ranjan C. George v. State of Kerala (Crl.A.No. 497 of 2013, dated 09.10.2018), the Hon’ble High Court of Kerala, after referring to the decision of the Supreme Court in Virsa Singh v. State of Punjab [ AIR 1958 SC 465 ] held as under: “Therefore, when sufficient materials are available to the case to arrive at a conclusion that the death of the victim was due to septicemia which has developed on account of the burn injuries, it is idle for the accused to contend that the case Crl.Appeal No. 497 of 2013 will not fall under Section 302 IPC.” 22. In Maniben v. State of Gujarat, AIR 2010 SC 1261 the Apex Court was dealing with a case where on 29.11.1984, while the deceased was returning home with a pot of water on her head and her daughter on her waist, the appellant set her on fire with a burning wick made of rags. Consequent to which, the deceased suffered burn injuries and succumbed to those injuries on 07.12.1984 while taking treatment in the hospital. The deceased was admitted with 60% burn injuries and during the course of treatment, developed septicemia leading to death on 07.12.1984. 23. Having regard to the above and taking into consideration a quarrel ensued earlier with the appellant, altered the conviction from 302 I.P.C. to 304-II I.P.C. 24. In Sanjay and Others v. State of Uttar Pradesh, 2016(3) SCC 62 the Apex Court dealt with a case where the deceased died 62 days after the occurrence due to septicemia and it was indirectly due to the injuries sustained by the deceased. The cause of death was septicemia. In the said case, the deceased was operated upon and later, discharged from the hospital in good condition. Under the said circumstances, the conviction was altered. 25. In Ganga Dass alias Godha v. State of Haryana, 1994 Supp(1) SCC 534 the accused gave a single blow on the head with an iron pipe. The deceased died 18 days later due to septicemia and other complications. The conviction was altered from 302 I.P.C. to 304-II I.P.C. 26. In view of the judgments referred to above and the evidence of the post mortem doctor that death was due to septicemia and the death was after five days of the incident, we feel that the conviction of the accused can be altered from Section 302 read with 34 I.P.C. to Section 304 Part – II I.P.C. 27. In the result, the conviction and sentence recorded by the learned XV Additional District and Sessions Judge, Nuzvid vide judgment, dated 09.06.2015, in Sessions Case No.244 of 2013 against the appellants/A-1 and A-2 for the offence punishable under Section 302 read with 34 I.P.C. are set aside. In the result, the conviction and sentence recorded by the learned XV Additional District and Sessions Judge, Nuzvid vide judgment, dated 09.06.2015, in Sessions Case No.244 of 2013 against the appellants/A-1 and A-2 for the offence punishable under Section 302 read with 34 I.P.C. are set aside. However, the appellants/A-1 and A-2 are found guilty of the offence punishable under Section 304 Part – II I.P.C., and accordingly, they are convicted and sentenced to undergo rigorous imprisonment for a period of seven (07) years and to pay fine of Rs.300/-, in default to suffer simple imprisonment for a period of one month. The period of remand underwent by them during investigation, trial and after conviction shall be given set off under Section 428 I.P.C. 28. Accordingly, the Criminal Appeal is partly allowed. Miscellaneous petitions pending, if any, in this Criminal Appeal shall stand closed.