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2021 DIGILAW 654 (AP)

Jedda Venkatesh S/o Aseervadam v. State Of A. P.

2021-10-06

B.KRISHNA MOHAN, C.PRAVEEN KUMAR

body2021
JUDGMENT: (C. Praveen Kumar) Heard Smt. A. Gayathri Reddy, learned Counsel appearing for the Appellant and Sri K. Srinivasa Reddy, learned Public Prosecutor for the State, through Blue Jeans video conferencing APP and with their consent, the appeal is disposed of. 1. Sole accused in Sessions Case No.357 of 2010 on the file of X Additional District and Sessions Judge (Fast Track Court), Guntur at Narasaraopet, is the Appellant herein. He was tried for offences punishable under Sections 302 and 304B of the Indian Penal Code [“I.P.C.”] for causing death of his wife Jedda Bhavani [ “deceased”] on 01.09.2009 at about 10:00P.M. in his house at Bobbala Srinivasarao, Jonnalagadda village. By its Judgment, dated 27.01.2012, the learned Sessions Judge convicted the accused under the said charges and sentenced him to suffer Rigorous Imprisonment for life and to pay fine of Rs.200/- in default to undergo simple imprisonment for one month, for the offence punishable under Section 302 IPC. However, no separate sentence is awarded for the offence punishable under Section 304B IPC. 2. The facts are as under: i) The accused is the husband of deceased. PW.3 is mother, PW.4 is brother-in-law, PW.10 is cousin and PW.11 is the neighbour of the deceased. ii) The marriage between the accused and the deceased took place about three years prior to death of the deceased. At the time of marriage, a sum of Rs.10,000/- one wrist watch, one gold ring worth Rs.3,000/- were given to the accused. The deceased was also presented with one pair of gold ear studs and one pair of silver anklets. After the marriage, the deceased Bhavani joined him. It is said that the accused used to harass the deceased both physically and mentally demanding her to get some more dowry. To meet his demands, the accused sent the deceased to her parents house with a condition to bring further sum of Rs.10,000/- as additional dowry. PW.3 expressed her inability to pay the said sum as she is having four more daughters and getting meagre income. It is said that the deceased stayed in their house for a period of one year; and thereafter a week prior to the incident, the accused came to the house of PW.3 and took the deceased promising to look after her well. It is said that the deceased stayed in their house for a period of one year; and thereafter a week prior to the incident, the accused came to the house of PW.3 and took the deceased promising to look after her well. iii) On 01.09.2009, one Pullaiah, who is maternal uncle of the accused, telephoned PW.3 in the midnight, stating that some altercation took place between the accused and the deceased and then the deceased poured kerosene on herself and set herself on fire. On receiving the said information, PW.3 and other family members proceeded to Government General Hospital, Guntur where the deceased was admitted. When enquired, the deceased informed PW.3 that the accused used to abuse her as she was not able to bring additional dowry of Rs.10,000/- as demanded by him and insisted her to pour kerosene on herself. Due to that provocation, the deceased is said to have poured kerosene on herself. Then the accused lit a match stick and threw it on her resulting in burn injuries to her body. The deceased also informed PW.3 that when the accused tried to escape, the neighbours prevented him. iv) PW.13, who was working as Head Constable in Narasaraopet I Town Police Station, received intimation from the hospital about admission of one Jadda Bhavani with burn injuries. Ex.P.13 is the said intimation received by him at 11:45 P.M. He then proceeded to the hospital, identified the injured with the help of Duty Doctor and recorded the statement of the injured at 12:00 in the midnight. He read over the contents of the statement to the injured and took her thumb impression. The Duty Doctor, who was present there through out, endorsed the mental condition of the injured as conscious and coherent to give statement. Ex.P.16 is the death statement. After returning to police station, PW.13 sent the hospital intimation and the statement of the injured to the Station House Officer, Narasaraopet Rural Police Station on the point of jurisdiction. v) PW.9, who was working as II Additional Junior Civil Judge, Narasaraopet, during that relevant time, received intimation from the Duty Medical Officer, Area Hospital, Narasaraopet for recording the dying declaration of one Jadda Bhavani. She reached the hospital at 00:45 A.M., identified the injured and after obtaining certificate from the duty doctor, recorded the statement of the injured, which is placed on record as Ex.P.12. She reached the hospital at 00:45 A.M., identified the injured and after obtaining certificate from the duty doctor, recorded the statement of the injured, which is placed on record as Ex.P.12. vi) PW.14-the Sub-Inspector of Police, on receipt of statement of the injured and the intimation from PW.13, registered a case in Crime No.189 of 2009 under Section 307, 498A IPC and Sections 3 and 4 of the Dowry Prohibition Act. Ex.P.17 is the FIR. He visited the hospital and recorded the statement of the injured and also the statement of PW.1. At about 6:00 A.M. on 02.09.2009, he visited the scene of offence, which is the rented house of the accused located in Jonnalagadda village. He prepared an observation report of the scene of offence under Ex.P.14 in the presence of PW.6. He also prepared a rough sketch of the scene, which is marked as Ex.P.18. He then took photographs of the scene and also examined PW.2 and others at the scene. On 03.09.2009, he visited Government General Hospital, Guntur and recorded the statement of PWs.3 and 4. On 05.09.2009 at about 9:00A.M., he received death intimation from the hospital, pursuant to which, he altered section of law to one under Section 304B IPC. Ex.P.21 is the altered FIR. Further investigation was taken up by PW.15-the Sub Divisional Police Officer, who, on receiving altered FIR, went to the mortuary of Government General Hospital, Guntur and conducted inquest over the dead body in the presence of PW.7. Ex.P.9 is the inquest report. At the time of inquest, he examined PW.3, PW.4, PW.5, and PW.10 and recorded their statements. After completion of inquest, the body was sent for post-mortem examination. vii) PW.16-Assistant Professor in Guntur Medical College conducted autopsy over the dead body of the deceased and issued Ex.P.23-Post Mortem Certificate. According to him, the cause of death was due to burns. viii) The accused, who received injuries in the course of same transaction, was also sent to the same hospital where he was treated for burns injuries sustained by him. PW.12, the Civil Assistant Surgeon, Area Hospital, Narasaraopet, examined the accused and issued Ex.P.15 wound certificate. According to him, the accused sustained thermal burns over both upper libs and the percentage of burns is about 30%. PW.12, the Civil Assistant Surgeon, Area Hospital, Narasaraopet, examined the accused and issued Ex.P.15 wound certificate. According to him, the accused sustained thermal burns over both upper libs and the percentage of burns is about 30%. ix) PW.15 who continued the investigation, arrested the accused on 23.09.2009 and after collecting all the necessary documents, filed a charge-sheet, which was taken on file as P.R.C. No.24 of 2009 on the file of I Additional Junior Civil Judge, Narasaraopet. 3. On appearance of the accused, copies of documents as required under Section 207 Cr.P.C., came to be furnished. Since the case is triable by Court of Sessions, the matter was committed to the Sessions Court under Section 209 Cr.P.C. Basing on the material available on record, charge as referred to above came to be framed, read over and explained to the accused, to which, the accused pleaded not guilty and claimed to be tried. 4. In support of its case, the prosecution examined PW1 to PW16 and got marked Ex.P1 to Ex.P.23, besides marking M.Os. 1 to 9. After completion of prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses, to which he denied. In support of his plea, no oral was adduced except marking Ex.D1 to Ex.D4. 5. Relying upon the two Dying Declarations of the deceased recorded by the Magistrate as well as the Head Constable coupled with the oral evidence of PWs.3 to 5 and 10, the learned Sessions Judge convicted the accused. Challenging the same, the present appeal came to be filed. 6. Learned counsel appearing for the appellant would submit that even accepted the entire case of the prosecution to be true, no offence under Section 302 IPC or 304B IPC is made out. It is urged that if really the accused had an intention to cause death, he would not have made an attempt to put off the flames on the body of the deceased. Insofar as the oral Dying Declarations made before PW.3, PW.4, PW.5, PW.10 and PW.11 are concerned, the learned counsel would submit that those declarations are mutually inconsistent with each other. Insofar as the oral Dying Declarations made before PW.3, PW.4, PW.5, PW.10 and PW.11 are concerned, the learned counsel would submit that those declarations are mutually inconsistent with each other. Since the two dying declarations recorded by the Magistrate and the police officer are silent with regard to the demand of dowry, the learned counsel would submit that the trial court erred in convicting the accused for the offence punishable under Section 304B IPC. He submits that it was the deceased, who pour kerosene on herself and set fire so as to create fear in the mind of the accused and only thereafter the accused is said to have lighted the match stick. 7. On the other hand, Sri K. Srinivasa Reddy, learned Public Prosecutor appearing for the State would submit that in view of two dying declarations, which are consistent with each other, it was the accused who is responsible for the death of the deceased. According to him, even if oral dying declarations are excluded from consideration, the conviction can be based on the dying declarations recorded by the Magistrate and the Head Constable. He further submits that since the death took place at the instance of the accused, question of scaling down the offence would not arise. 8. The point that arises for consideration is, whether the trial court was right in convicting the accused for the offence punishable under Section 304B and 302 IPC? 9. Learned counsel for the appellant did not raise any dispute with regard to validity of conviction under Section 302 IPC and 304B IPC, but, however, urged that neither of the offence is made out. As seen from the record, apart from the oral dying declarations made before PW.3, PW.4, PW.5 and PW.11, there are two dying declarations made before PW.9 and PW.13, which are marked as Ex.P.12 and Ex.P.16 respectively. We will first refer to these two dying declarations and then deal with the oral dying declarations made before PWs.3, 4, 5 and 11. 10. Ex.P.16 is the first statement of the deceased recorded by PW.13, which formed the basis for issuance of First Information Report. This statement is said to have been recorded at 12:30A.M. on the intervening night of 1/2.9.2009. A reading of the said statement would show that the husband of the deceased was abusing her to bring additional dowry of Rs.10,000/- from her parents. This statement is said to have been recorded at 12:30A.M. on the intervening night of 1/2.9.2009. A reading of the said statement would show that the husband of the deceased was abusing her to bring additional dowry of Rs.10,000/- from her parents. He also used to beat her during the said period. As her parents were not in a position to meet the demand, she was taken by her parents along with them where she stayed for more than a year. About 10 days prior to the incident, the accused convinced her parents and took her to a rented house of one Bobbala Srinivasa Rao at Jonnalagadda village. On the night of 1.9.2009 at 10.15P.M. her husband (accused) came in a drunken condition, quarrelled with her for not bringing additional dowry of Rs.10,000/- and beat her during that quarrel. With a view to create fear in the mind of the accused, the deceased herself poured kerosene on her body, then her husband came towards her, lighted a match stick and threw it on her. Immediately flames spread over her body and the clothes on her body were burnt. The deceased raised cries and came outside the house. Her husband and neighbours also came out. On seeing the people gathered outside the house, the accused tried to put off the flames by pulling the clothes. During such process, the hands of accused were also burnt. People gathered there shifted the injured to the Government Hospital, Narasaraopet in an auto where she took treatment. This Dying Declaration was recorded by the Head Constable after obtaining certificate from the doctor with regard to fitness of the deceased in making the statement. 11. The second Dying Declaration is placed on record as Ex.P.12. This statement was recorded by the Magistrate-PW.9 between 12:45 A.M. and 1:10A.M. After putting some preliminary questions to satisfy herself with regard to mental condition of the deceased and on being satisfied, recorded the statement of the injured. In the said statement, the deceased stated that “on 01.09.2009 at 11:00P.M. at Jonnalagadda village, her husband came to the house in a drunken stage and beat her. With a view to threaten him, she herself poured kerosene on her body and immediately her husband lighted the match stick and threw it on her, resulting in injured sustaining burns. When she raised cries, her husband put off the same. With a view to threaten him, she herself poured kerosene on her body and immediately her husband lighted the match stick and threw it on her, resulting in injured sustaining burns. When she raised cries, her husband put off the same. During the process her husband also sustained burn injuries. Thereafter, her brother-in-law took her to the hospital. She also stated that at that time there was no one in the house.” 12. A reading of these two statements would make it clear that the deceased did not speak of any demand of additional dowry of Rs.10,000/- by the accused and also about the conduct of the accused in trying to run away after setting her on fire in the statement recorded by the Magistrate-PW.9, which was subsequent to the first statement recorded by the Head Constable-PW.13. However, in both the statements, she categorically stated that the accused came home in a drunken state, beat her and with a view to threaten him, she herself poured kerosene and thereafter the accused lit the match stick and threw it on her, resulting in flames spreading over her body. The variation in the two dying declarations, as stated above, is with regard to the demand for additional dowry and the conduct of the accused in trying to ran away after setting the deceased on fire. 13. Coming to the oral dying declarations made before PW.3, PW.4, PW.5, PW.10 and PW.11, it appears that the family members after receiving information proceeded to the hospital and enquired about the incident wherein the deceased narrated as to how she sustained injuries. 14. PW.3 in her evidence deposed that when enquired her daughter, she stated that the accused used to harass her as she was not able to bring Rs.10,000/- as demanded by him and insisted her to pour kerosene and due to provocation made by the accused, she poured kerosene and then the accused lit the match stick and threw it on her, resulting in she sustaining burn injuries. However, in the earlier statement made before the Investigating Officer, PW.3 did not state that “the accused insisted her daughter to pour kerosene on her body”. PW.3 also did not state before him that when accused tried to escape from the scene of offence, the neighbours apprehended him. However, in the earlier statement made before the Investigating Officer, PW.3 did not state that “the accused insisted her daughter to pour kerosene on her body”. PW.3 also did not state before him that when accused tried to escape from the scene of offence, the neighbours apprehended him. It will be useful to extract the same, which is as under: “......It is true that PW.3 did not state before me that the accused insisted her daughter to pour kerosene on her body. It is true that PW.3 did not state before me that when accused tried to escape from the scene of offence neighbours caught him......” 15. PW.4 is brother of the deceased, who, in his evidence, deposed that when enquired, he was informed that due to unbearable harassment and torture by the accused for not bringing Rs.10,000/- from her house, she poured kerosene on herself with a view to give threat to her husband and then her husband lighted the match stick and threw it on her resulting in burn injuries. However, when his statement was recorded by the police during investigation, PW.4 did not state that the deceased informed him that she poured kerosene on her body due to unbearable harassment received by her in the hands of the accused. It will be useful to extract the same, which is as under: “......PW.4 did not state before me that deceased informed to him that she poured kerosene on her body due to unbearable harassment received by her in the hands of accused......” 16. PW.5, who is brother-in-law of the deceased, deposed that the accused threatened the deceased to pour kerosene on her body, otherwise he would kill her with knife. Then the deceased poured kerosene on her body and the accused lighted a match and threw it on her. However, during the course of investigation, he failed to mention crucial aspects, which are as under: “..... PW.5 did not state before me that deceased informed to him that accused threatened her to pour kerosene on her body otherwise he will kill her with knife......” 17. The version of PW.10 and PW.11 is also to the effect that the deceased herself poured kerosene on her body with a view to threaten the accused and thereafter the accused lighted a match stick and threw it on her. The version of PW.10 and PW.11 is also to the effect that the deceased herself poured kerosene on her body with a view to threaten the accused and thereafter the accused lighted a match stick and threw it on her. As stated by us earlier, though there is some variation in the oral dying declarations made before PW.3 to 5, 10 and 11 as to whether there was any demand for dowry before she poured kerosene on herself and also as to the conduct of the deceased, but, one fact which requires to be considered is that all through there was harassment for money and with a view to threaten the accused, the deceased poured kerosene on herself and thereafter the accused lighted the match stick and threw it on the deceased. One thing which requires to be noticed here is that these oral dying declarations do not speak about the act of the accused in trying to put off the flames on the deceased, except one witness. It is not the case of the prosecution that the deceased made separate oral dying declarations to each of the witness. These oral dying declarations, in our view, require to be tested with the two dying declarations, which we have referred to earlier. 18. Before dealing with the same, it would be appropriate to refer to the oral evidence with regard to the act of the accused in making demands for dowry. PWs.3 to 5 categorically deposed about the marriage of the deceased being performed with the accused and presenting of a sum of Rs.10,000/-, one wrist watch, one gold ring worth Rs.3,000/- to the accused at the time of marriage; and, the accused harassing the deceased physically and mentally to get additional dowry of Rs.10,000/- and accordingly, sending the deceased to her parents house to bring Rs.10,000/- as demanded by him. It is said that for nearly a year she stayed in her parents house and about 10 days prior to the incident, the accused came to the house and took her to his house at Jonnalagadda village and thereafter, the incident in question took place. Though PWs.3 to 5, 10 and 11 were cross-examined at length with regard to the demand for additional dowry and harassment to that effect, nothing useful came to be elicited to discredit their testimony. 19. Though PWs.3 to 5, 10 and 11 were cross-examined at length with regard to the demand for additional dowry and harassment to that effect, nothing useful came to be elicited to discredit their testimony. 19. Since the incident took place within seven years of the marriage, as the death was unnatural and as there was harassment for additional dowry soon before her death, the trail Court, in our view, rightly convicted the accused for the offences punishable under Section 304B IPC. But, however, no separate sentence was awarded, as the accused was sentenced to imprisonment for life for the offence punishable under Section 302 IPC., in view of the judgment in Prakashchander v. State ( 1995 CRLJ 368 ). 20. Insofar as the offence under Section 302 IPC is concerned, the question is whether the trial Court was right in convicting the accused for the said offence having regard to the manner in which the incident took place? 21. The dying declaration recorded by the Magistrate (PW.9) is placed on record as Ex.P.16. A reading of the said dying declaration would disclose that the accused came home in a drunken condition, quarrelled with the deceased and beat her; and with a view to threaten the accused, the deceased poured kerosene on herself and then the accused lit the match stick and threw it on her. When the deceased was in flames, the accused tried to put off the same, during which process, he sustained 30% burn injuries over his hands, which is evident from the evidence of the doctor-PW.12, who treated him in Area Hospital, Narasaraopet. As stated earlier, this statement was recorded between 12:45 A.M. to 1:10A.M. but the contents of the statement recorded by the Magistrate is at variance to certain extent with regard to the statement recorded by PW.13, which formed the basis for the First Information Report. The variation relates to conduct of the accused at the time of incident, ensuing quarrel for not bringing the additional dowry of Rs.10,000/-, before the deceased pouring kerosene on herself. A joint reading of both the dying declarations would clearly show that there was a quarrel before the incident and then the deceased, with a view to threaten the accused, poured kerosene over herself. The act of pouring kerosene was by the deceased herself. A joint reading of both the dying declarations would clearly show that there was a quarrel before the incident and then the deceased, with a view to threaten the accused, poured kerosene over herself. The act of pouring kerosene was by the deceased herself. At that point of time, the accused, who was in a drunken condition, lit the match stick and threw it on the deceased and thereafter when the deceased was in flames, the accused made efforts to put off the flames. In that process, he also sustained burn injuries. The fact that the accused on his own tried to put off the flames, is evident from the dying declaration recorded by the Magistrate. Though there is some variation with regard to these aspects, when compared to the oral dying declarations made before PW.3, PW.4, PW.5, PW.10 and PW.11, but we feel it proper to give much importance to the contents of the dying declarations recorded by the Magistrate, as it inspires confidence in the mind of the court and the same is not much at variance on material particulars with the dying declaration recorded by the Head Constable. 22. In Mohammed Jahangeer v. State of Andhra Pradesh, 2017 (1) ALD (Crl) 330, this court held as under: “……In the instant case, the statement given by the deceased in her dying declaration reveals that the appellant was in a fully drunken stage on the night when the incident took place. She also stated that the appellant used to frequently come home in a fully drunken state and quarrel with her and beat her. However, she made one significant statement in her dying declaration, viz., that the appellant behaves friendly when he is not drunk and he quarrels and harasses her only when he is drunk. From this statement of the deceased, it could be deciphered that the appellant, who appears to be a good natured person in normal course, loses his control if he is drunk and evidently, he may not be conscious of what he would be doing when he is drunk. The fact that he was fully drunk on the fateful night stood proved by the statement of the deceased made in her dying declaration. The fact that he was fully drunk on the fateful night stood proved by the statement of the deceased made in her dying declaration. Though the appellant may not have had the intention of causing the death of the deceased, he would have had at least the knowledge of causing the bodily injuries which are likely to cause her death. In these facts and circumstances of the case, we are of the opinion that this is a fit case where the appellant is liable to be convicted for the offence punishable under Section 304 Part I I.P.C.” 23. Having regard to the above and as the deceased sustained burn injuries only because of she pouring kerosene on herself, we are of the opinion that this is a fit case where the nature of offence has to be scaled down. 24. In view of the judgment referred to above and having regard to the manner in which the incident in question took place, the conviction under Section 302 IPC is set aside and the appellant is convicted for the offence punishable under Section 304 Part-II IPC and accordingly sentenced to undergo rigorous imprisonment for a period of seven years under both the counts. The period undergone by the accused shall be given set off under Section 428 Cr.P.C. 25 Accordingly, the appeal is allowed partly. Consequently, miscellaneous petitions, if any, pending shall stand closed.