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2022 DIGILAW 1084 (AP)

Challa Srinu, E. G. Dist. v. P. P. , Hyd

2022-10-20

B.V.L.N.CHAKRAVARTHI, C.PRAVEEN KUMAR

body2022
JUDGMENT: (C. Praveen Kumar, J.) 1. Sole accused in Sessions Case No.232 of 2012 on the file of XVI Additional District & Sessions Judge at Nandigama, is the appellant herein. The present Criminal Appeal came to be filed under Section 374(2) of the Code of Criminal Procedure, 1973, challenging the judgment, dated 12.12.2014 in Sessions Case No.232 of 2012 on the file of XVI Additional District & Sessions Judge at Nandigama. Vide Judgment, dated 12.12.2014, the learned Sessions Judge convicted the accused and sentenced him to suffer imprisonment for life for the offence punishable under Section 302 of the Indian Penal Code, 1860 [For short ‘I.P.C’.]. 2. The gravamen of the charge against the accused is that, on 28.12.2010, the accused, being the husband of Challa Parvathi [deceased], abused her, beat her on the left side temporal region with a wooden cot leg, then tied both her hands to the cot with a plastic tape, poured kerosene and set her on fire. 3. The facts in issue are as under: (i) Accused is the husband of the deceased. P.W.1 is the mother and P.W.2 is the nephew of the accused. The accused married the daughter of the younger brother of PW1, by name Anjamma. Disputes arose between the accused and Anjamma and as such, she went to her parents’ house at Nagulavalasa. Thereafter, the accused started living with another woman in Magallu village. It is said that the said lady lived with the accused for a period of 10 days and then left. Thereafter, the accused brought another person, who also went away, though there were no disputes between them. (ii) The evidence of P.W.16 also shows that Parvathi married a person and had two children through him. She left her husband and eloped with a lorry driver, who happens to be the accused. (iii) P.W.12 is one Anjamma, who married the accused earlier to the marriage with Parvathi. According to her, the accused used to consume liquor and beat her. After birth of children, harassment increased and as such, she left him and went to her village Nagulavancha. It is said that one once occasion, the accused came to her village in a drunken state, beat her and caused injury on her neck. Thereafter, she went to her grandmother’s place at Lakshmipuram. After birth of children, harassment increased and as such, she left him and went to her village Nagulavancha. It is said that one once occasion, the accused came to her village in a drunken state, beat her and caused injury on her neck. Thereafter, she went to her grandmother’s place at Lakshmipuram. (iv) P.W.13 is none other than the brother of Anjamma, He also speaks about the harassment of the accused towards her sister Anjamma and also accused causing injury to her on her neck. (v) While the things stood thus, the accused and Parvathi (deceased) lived for two to three months. On the date of incident, while P.W.1 was taking meals in her house, which is by the side of the house of the accused, heard some cries and as such, went outside and noticed Parvathi in flames. (vi) The injured (Parvathi) was taken to hospital and an intimation about her admission was received by P.W.17-Head Constable of Nandigama police station from Government General Hospital, Nandigama. Ex.P22 is the hospital intimation received by P.W.17 at 9.45 P.M. As he was in Government Hospital with regard to another crime, he went towards the injured Challa Parvathi and recorded her statement. Ex.P23 is the statement recorded by P.W.17. After recording her statement, he obtained her thumb impressions and the duty doctor certified that the injured is conscious at the time of giving her statement. Basing on the statement of the injured, P.W.17 registered a case in Crime No.388 of 2010 under Section 307 I.P.C. Ex.P24 is the F.I.R. (vii) At this stage, it is to be noted here that on 28.12.2010 at about 9.55 p.m., P.W.10 Additional Junior Civil Judge, Nandigama received a requisition from Government Hospital, Nandigma for recording the statement of the injured. Ex.P15 is the hospital intimation. On receipt of the same, she reached the hospital at 10.05 P.M. Prior to recording the statement, she obtained endorsement of the doctor, who certified that the patient was in conscious and in a fit state of mind to give statement. She also put some questions to the injured and on being satisfied with the answers given by the injured, proceeded to record the statement of injured. Ex.P16 is the dying declaration recorded by P.W.10. She also put some questions to the injured and on being satisfied with the answers given by the injured, proceeded to record the statement of injured. Ex.P16 is the dying declaration recorded by P.W.10. (viii) On the same day at about 11.00 p.m., while P.W.18-Sub-Inspector of Police was in the police station, he received intimation about the death of the injured through Head Constable 2106. He altered section of law from 307 I.P.C to 302 I.P.C., and issued altered F.I.R. Ex.P.26 is the altered F.I.R. P.W.18 informed the Inspector of Police, Nandigama about the death of the deceased and accordingly, P.W.19-Inspector of Police, Jaggaiahpet Circle received copy of F.I.R and took up investigation. (ix) P.W.19-Inspector of Police, who took up investigation from P.W.18, visited the scene of offence at Magallu village on 29.12.2010 and in the presence of P.W.14-Village Revenue Officer and another, prepared a scene observation report, which is marked as Ex.P18. At the scene, he seized a burnt cot (M.O.6), a plastic Navvaru (M.O.3), five liters plastic tin (M.O.4), burnt cloth (M.O.5), cot peg (burnt) (M.O.2) and Match box (M.O.1) in the presence of mediators. Thereafter, he proceeded to the Government General Hospital and in the presence of mediators, conduct inquest over the dead body of deceased Parvathi from 1.00 P.M. to 3.00 P.M. Ex.P19 is the Inquest report. During inquest, he examined P.Ws.1 to 8 and recorded their statements. The mediators opined that the accused tied the deceased on the cot and set her on fire. At the scene of offence, he also prepared a rough sketch of the scene of offence, which is placed on record as Ex.P27. Later the dead body was sent to Medical Officer for autopsy. (x) P.W.15 Medical Officer, Government Hospital, Nandigama conducted autopsy over the dead body of Challa Parvathi between 3.30 P.M to 5.30 P.M. and found ‘a contusion injury present on right side face extending from right eye to right ear and extensive deep burns all over the body from neck to toes.’ He issued a post Mortem Certificate which is marked as Ex.P21. (xi) Further investigation was taken up by P.W.20-Inspector of Police, Nandigama, who arrested the accused on 03.01.2011 and pursuant to the confession made by him, PW.20 seized the shirt of accused in the presence of mediators, which is placed on record as M.O.7. (xi) Further investigation was taken up by P.W.20-Inspector of Police, Nandigama, who arrested the accused on 03.01.2011 and pursuant to the confession made by him, PW.20 seized the shirt of accused in the presence of mediators, which is placed on record as M.O.7. After collecting all the documents and after completing the investigation, a charge-sheet came to be filed, which was taken on file as P.R.C. No.39 of 2011 on the file of Additional Judicial Magistrate of First Class, Nandigama. 4. 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. 5. In support of its case, the prosecution examined PW1 to PW20 and got marked Ex.P1 to Ex.P28, besides marking M.Os.1 to M.O.7. 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 and no documentary evidence was adduced on his behalf. 6. Relying upon the two dying declarations coupled with the evidence of P.W.1, the learned Sessions Judge convicted the accused. Challenging the same, the present appeal came to be filed through Legal Aid counsel Sri Ancha Pandurangarao. 7. The learned counsel would contend that there is any amount of doubt as to whether it was the accused, who was responsible for the death of the deceased. According to him, the dying declaration recorded by the Magistrate does not contain the name of the accused and when the deceased was already married and having a husband with two children, it cannot be said beyond doubt that it was the appellant, who was responsible for the death of the deceased. He further submits that the evidence of P.W.12 clearly shows that the deceased married one Chalamaiah and had two children, and as such, Chalamaiah (who is her husband), causing the death of the deceased, cannot be ruled out. He further submits that the evidence of P.W.12 clearly shows that the deceased married one Chalamaiah and had two children, and as such, Chalamaiah (who is her husband), causing the death of the deceased, cannot be ruled out. He further submits that a close perusal of both the dying declarations recorded would show that the Magistrate could not complete recording the dying declaration at 10.15 P.M., as the Head Constable, who recorded the dying declaration earlier, in his evidence states about he being present with the deceased while recording the dying declaration. Therefore, the presence of both the persons near the deceased and both of them recording the dying declarations during the same period is not possible. 8. On the other hand, Sri S.Dushyanth Reddy, learned Additional Public Prosecutor, would submit that the evidence of P.W.1 would establish that the deceased was living along with the appellant in a house, which is by the side of her house. This evidence of P.W.1 though challenged by way of cross examination, nothing turned out to discard her version. All the suggestions given to her were denied. Apart from that, in the dying declaration recorded by the police, which forms the basis for First Information Report, the name of the husband was mentioned. Merely because the name of the husband was not mentioned in the dying declaration recorded by the Magistrate, it cannot be said that it was not the appellant, who was responsible for the death of the deceased. He relied on the Judgment of Hon’ble Supreme Court in State of U.P. v. Veerpal & another, [2022 LiveLaw (SC) 111], in support of his plea. 9. The point that arises for consideration is: “whether the prosecution has established the guilt of the accused beyond reasonable doubt?” 10. Before proceeding further, it is to be noted that P.Ws.2, 3, 4, 5, 6, 7, 8 and 11 did not support the prosecution case and they were treated hostile by the prosecution. Therefore, the entire case now rests on the evidence of P.Ws.1, 10, 12, 13, 16 and two dying declarations recorded by the police and the Magistrate. 11. P.W.1 is none other than the mother of the accused. In her evidence, she deposed that though the accused married one Anjamma (P.W.12) about five years prior to the dispute, but subsequently she left the accused because of certain disputes. 11. P.W.1 is none other than the mother of the accused. In her evidence, she deposed that though the accused married one Anjamma (P.W.12) about five years prior to the dispute, but subsequently she left the accused because of certain disputes. Thereafter, the accused lived with another lady in Magallu Village and after she left his company, he started living with the deceased Parvathi. It is her version that both of them lived for two to three months. It is her evidence that on the date of incident, while she was taking meals in her house, which is by the side of the house of the accused, she heard some noise and as such, she went out and noticed the deceased in burns. She was cross examined, but nothing useful came to be elicited to discard her version. On the other hand, it was elicited in the cross examination that the distance between her house and the house of the accused is only 50 feet. However, a suggestion that a false case has been foisted at the instance of the police, was denied. 12. P.W.12 is one Anjamma, who married the accused and had two children through him. According to her, unable to bear the harassment in the hands of the accused, she left him and went to her village. Her evidence also discloses that on one occasion, the accused came and attacked her on her neck and thereafter, accused never came to him. She also deposed that she came to know recently that the accused killed a woman. Though P.W.12 was cross examined, nothing useful has been elicited to discard her evidence. The answers elicited were with reference to the acts of her husband (accused), while both of them were living together. 13. According to P.W.13, who is none other than the brother of Anjamma, as the accused used to harass her sister in a drunken state, she left him and went to their grandparents’ place. 14. P.W.16, who is none other than the brother of deceased, the deceased, in his evidence deposed that the deceased was killed by a person named Srinu. He further deposed that Parvathi got two children through her husband and later she eloped with a lorry driver and died in Nandigama. 15. 14. P.W.16, who is none other than the brother of deceased, the deceased, in his evidence deposed that the deceased was killed by a person named Srinu. He further deposed that Parvathi got two children through her husband and later she eloped with a lorry driver and died in Nandigama. 15. A conjoint reading of the evidence of P.W.1 coupled with that of P.W.16 would establish that at the time of incident, the deceased Parvathi was living with the accused Srinu, who was eeking out his livelihood by working as a lorry driver, in a house, which is situated by the side of the house of P.W.1 and it also stands established that when P.W.1 came out, she noticed burn injuries on the deceased. The said version of P.Ws.1 and 16 also gets support from the evidence of P.W.2, who is a neighbor, who though declared hostile by prosecution, deposed that the accused was living with the deceased at that point of time. 16. Coming to the offence punishable under Section 302 I.P.C., it is to be seen that the entire case now rests on the two dying declarations recorded by the Magistrate [PW10] and the Head Constable [PW17]. 17. In Atbir v. Government of NCT of Delhi, [2010 AIR 3477], the Apex Court, after referring to earlier judgments, laid the following guidelines with regard to admissibility of the dying declaration:- i. Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court. ii. The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination. iii. Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration. iv. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. v. Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence. vi. A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction. vii. The rule requiring corroboration is merely a rule of prudence. v. Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence. vi. A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction. vii. Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected. viii. Even if it is a brief statement, it is not to be discarded. ix. When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail. x. If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration.” 18. At this stage, it would be appropriate to refer to the evidence of Head Constable, who recorded the first dying declaration of the deceased. The evidence of P.W.17, who was working as Head Constable during the relevant point of time, reveals that on receipt of Hospital intimation (Ex.P22), he proceeded to Government General Hospital and then recorded the statement of the injured under Ex.P23. Before recording the statement, he obtained a certificate from the doctor with regard to the mental fitness of injured. 19. A perusal of Ex.P23 would clearly shows that the statement was recorded between 9.45 P.M. to 10.15 P.M. on 28.12.2010. The Medical Officer certified that the patient was conscious and coherent at the time of recording the statement. The statement of the injured is as under: “I am resident of Magallu village of Nandigama. I am living with my husband. I am doing coolie work. My husband is working as lorry driver. I have two daughters. My marriage was happened 8 years back. Today i.e., on 28.12.2010 at 8.00 P.M., my husband came to my home in a drunken state, quarreled with me and beat me and tied me to a cot in my house and poured kerosene on me and lit fire with match stick. While my entire body is burning, I made cries, then my husband absconded from my house. Later neighbours came there. While my entire body is burning, I made cries, then my husband absconded from my house. Later neighbours came there. After some time, I shifted to Nandigama Government Hospital in 108 ambulance. Doctor’s at Government Hospital are treating me. Magistrate recorded my statement. Read over to me he recorded as I stated to him.” 20. The second dying declaration recorded by Magistrate was examined as P.W.10. In her evidence, she submits that on receipt of hospital intimation, she proceeded to the hospital at 10.05 P.M., and after obtaining the certificate from the doctor with regard to the fitness and consciousness of the deceased, recorded the dying declaration of the deceased, wherein she stated as under: “To know the mental condition of the patient, I put the following questions: 1. What is your name? A. Parwathi 2. Are you married? A. Yes 3. What is your husband? A. Lorry Driver 4. Do you have children? A. Two children 5. Do you know that I am Magistrate and I came to here to record your statement? A. Do not know. But now I came to know. After satisfying the answers given by the declarant, I asked the incident. Q. How this incident was happened? Ans: My husband has come in drunken state and abused me. I arrange bed and asked him to sleep. He abused me. I asked him as to why he is abusing me and what was the mistake made by me. For that he tied me to the cot and poured kerosene on me and lit fire with match stick and ran away from there. My body was burnt. As I am shouting, neighbours came there and called ambulance by phone. Q. Why he poured kerosene on you? Ans: As I asked him about his illicit intimacy with another woman, he poured kerosene on me. Q. Is there anything to say? Ans: Nothing.” 21. A reading of these two dying declarations coupled with the evidence of P.Ws.1, 2, 12 and 16 will primarily establish that at the time of incident, the accused was living with the deceased in a house which was by the side of P.W.1. 22. Q. Is there anything to say? Ans: Nothing.” 21. A reading of these two dying declarations coupled with the evidence of P.Ws.1, 2, 12 and 16 will primarily establish that at the time of incident, the accused was living with the deceased in a house which was by the side of P.W.1. 22. The main plea taken by the accused is that he was not present in the house at the time of incident, but the suggestions given to P.W.1 and to the investigating officer, nowhere establish that he was not present in the house on the date of incident. Though the evidence of P.W.1 does not establish that the accused was there in the house at that time, but if the contents of the dying declarations are looked into, it stands established that the accused was in the house, the same can be made basis to convict the accused. 23. In the absence of any motive being suggested to the Magistrate and also to the Head Constable, who recorded the dying declaration, we see no reason to disbelieve the two dying declarations, which corroborate with each other. 24. Learned counsel for the accused tried to contend that since the evidence of Head constable shows that he recorded the statement at 9.45 P.M. to 10.15 P.M., the Magistrate could not have recorded the evidence of deceased from 10.05 P.M. The small difference in time given by the witness in his cross examination does not inherent falsify his evidence, more so, when it is not the case of the accused that there was a motive for the Head Constable to implicate the accused. 25. On the other hand, the suggestion given to the Investigating Officer-P.W.17 that as Parvathi (injured) was not in a position to speak, he reduced into writing the information given by other villagers and obtained the thumb impression of Parvathi on the said statement, was denied by him. The said suggestion can falsifies the endorsement made by the doctor in the two dying declarations recorded. Though the dying declaration recorded by the Magistrate does not indicate the name of the husband of the deceased, since the requisition/hospital intimation indicates the name of injured as Chlla Parvathi, W/o Srinu, resident of Magallu, Nandigama Mandal, the reference in the contents of dying declaration is that of the appellant only. 26. Though the dying declaration recorded by the Magistrate does not indicate the name of the husband of the deceased, since the requisition/hospital intimation indicates the name of injured as Chlla Parvathi, W/o Srinu, resident of Magallu, Nandigama Mandal, the reference in the contents of dying declaration is that of the appellant only. 26. For the aforesaid reasons, we are of the view that the prosecution succeeded in establishing the guilt of the appellant/accused beyond reasonable doubt and the trial Court rightly convicted the appellant. 27. In the result the appeal fails and it is accordingly dismissed, confirming the conviction and sentence recorded against the appellant/accused in the judgment, dated 12.12.2014 in Sessions Case No.232 of 2012 on the file of the Court of XVI Additional District & Sessions Judge, Nandigama. Consequently, miscellaneous petitions, if any, pending shall stand closed.