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2022 DIGILAW 2 (AP)

Harijana Anantha Raju v. State of Andhra Pradesh

2022-01-03

C.PRAVEEN KUMAR, K.MANMADHA RAO

body2022
JUDGMENT : C. PRAVEEN KUMAR, J. 1. Sole accused in Sessions Case No. 123 of 2013 on the file of Additional Sessions Judge, Hindupur, is the appellant herein. He was tried for offences punishable under Sections 498A and 302 of Indian Penal Code (I.P.C.). By its Judgment, dated 20.04.2015, the learned Sessions Judge convicted the accused under both the counts and sentenced him to suffer imprisonment for life and to pay fine of Rs. 2,000/- in default to undergo simple imprisonment for six months for the offence punishable under Section 302 I.P.C. He was further sentenced to undergo rigorous imprisonment for a period of two years and to pay fine of Rs. 1,000/- in default to undergo simple imprisonment for three months for the offence punishable under Section 498-A I.P.C. The substantive sentences were directed to run concurrently. 2. The gravamen of the charge against the accused is that, the accused being the husband of Bhagya Lakshmi (Deceased), used to harass her and on 20.12.2012 caused her death by pouring kerosene and setting her on fire. 3. The facts, as uncovered from the evidence of the prosecution witnesses, are as under: (i) PW-1 is the father, while PW-2 is the brother, of the deceased. The marriage of deceased-Bhagya Lakshmi was performed with the accused about 10 to 12 years prior to the date of incident. It is said that, after marriage, both of them started living in Kodagarlagutta Village, Rolla Mandal. They were blessed with a male and a female child. For some time, both of them lived happily and, thereafter, disputes arose when the accused developed illicit intimacy with another lady in the village. It is said that, on one occasion, the accused broke the head of the deceased, pursuant to which, PW-1 took her to his house and after healing all the wounds a panchayat was conducted. After the panchayat, the deceased was sent to the house of the accused. It is said that, accused used to beat the deceased whenever the deceased questioned him about his illicit intimacy with another woman in the village. (ii) On the fateful day, there was a quarrel between the accused and the deceased when she questioned the accused about the illegal intimacy. The said quarrel took place while the deceased was in the kitchen. (ii) On the fateful day, there was a quarrel between the accused and the deceased when she questioned the accused about the illegal intimacy. The said quarrel took place while the deceased was in the kitchen. It is said that, with an intention to kill her, the accused poured kerosene on the body and set her on fire. On hearing the cries, the neighbours came, covered the body with blanket, put off the flames and then took her to the hospital. Intimation about the admission of the injured in the hospital was furnished to PW-1 by the authorities in the Government Hospital at Madakasira. Thereafter, the injured was shifted to Government Hospital, Hindupur, for better treatment. The doctors at Hindupur advised to take the deceased to Government Hospital at Ananthapuram, for better treatment. It is said that the deceased was conscious and coherent both at Madakasira and Hindupur Government Hospitals. But, however, became unconscious when they reached the Government Hospital, Ananthapuram. (iii) On 20.12.2012 at about 8.30 a.m. PW-9 Sub-Inspector of Police, Madakasira Police Station, received intimation from the Government Hospital about admission of the injured (deceased) in the hospital. He proceeded to the Government Hospital and found the injured (deceased) with burns in general ward. She was conscious and coherent and her mental state was normal. He recorded the statement of the injured (deceased), which was marked as Ex.P9. After recording the statement of the injured, he obtained certificate of the doctor with regard to the mental status of the injured (deceased). However, on point of local limits, the statement was sent to Rolla Police Station, for registering of a case in the said police station. (iv) It is to be noted here that, PW-11 who was working as Civil Assistant Surgeon, Area Hospital, Madakasira, sent intimation to Judicial First Class Magistrate, Madakasira (PW-10), for recording the statement of the injured (deceased). According to him, the injured was speaking both in Kannada and Telugu languages. Pursuant to the intimation received, PW-10 proceeded to Area Hospital by 9.25 a.m. and recorded the statement of Bhagya Lakshmi (deceased) after obtaining certificate from the doctor with regard to the state of mind of the injured (deceased). Ex.P12 is the dying declaration recorded by PW-10 the Magistrate. Pursuant to the intimation received, PW-10 proceeded to Area Hospital by 9.25 a.m. and recorded the statement of Bhagya Lakshmi (deceased) after obtaining certificate from the doctor with regard to the state of mind of the injured (deceased). Ex.P12 is the dying declaration recorded by PW-10 the Magistrate. (v) On 20.12.2012 at about 11.00 a.m. PW-7 the Sub- Inspector of Police, Rolla Police Station, received intimation and the statement of the injured from Government Hospital, Madakasira, through P.C. 3072 of Madakasira Police Station. Basing on the said statement, he registered a case in Crime No. 51 of 2012 for the offences punishable under Sections 498A and 307 I.P.C. Ex.P10 is the First Information Report. Thereafter, he informed about the occurrence and registration of Ex.P10 to Circle Inspector of Police, Madakasira and to the Deputy Superintendent of Police, Penukonda. He then rushed to Government Hospital, Madakasira and came to know that the injured was shifted to Government Hospital, Hindupur, for better treatment. He then visited Government Hospital at Hindupur, and recorded her statement and also recorded the statement of PW-3 and another. From there, PW-7 visited the scene of offence i.e. house of accused and deceased by 4.30 p.m. and prepared a panchanama of the scene. At the scene, he seized M.O.1 to M.O.5 under mahazar. Further investigation, in this case, was taken up by PW-12 the Inspector of Police. (vi) On 24.12.2012 at about 8.30 a.m. PW-12 Inspector of Police, received a telephone call from Sub-Inspector of Police, Rolla Police Station (PW-7), informing him about the death of the deceased and on receiving of death intimation (Ex.P15) from the Government Hospital, Ananthapuram, he instructed PW-7 to alter the crime from Section 498A and 307 to Section 498A and 302 I.P.C. Ex.P16 is the altered F.I.R. Thereafter, he proceeded to Government Hospital, Ananthapuram, and conducted inquest over the dead body in the mortuary. At the time of inquest, he examined PW-1 to PW-3 and recorded their statements. Thereafter, he sent the dead body for post-mortem examination. (vii) PW-8 the Assistant Professor, Forensic Medicine, G.G.H. Ananthapuram, conducted autopsy over the dead body of the deceased on 24.12.2012 and issued Ex.P11 the postmortem certificate. According to him, the deceased died due to Hypovolemic shock and Toxemia as a consequence of mixed degree ante mortem burns. (viii) PW-12, who continued with the investigation, seized plastic kerosene can (M.O.5) from the scene under Ex.P4. According to him, the deceased died due to Hypovolemic shock and Toxemia as a consequence of mixed degree ante mortem burns. (viii) PW-12, who continued with the investigation, seized plastic kerosene can (M.O.5) from the scene under Ex.P4. Subsequently, on 03.01.2013 at about 2.00 p.m. on receipt of credible information about the accused, he rushed towards Rangapuram gate along with mediators, where they noticed one person trying to skulk away on seeing police. On instructions, his staff apprehended him and after identifying the accused, arrested him and recorded his confessional statement, which is placed on record as Ex.P5. 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. 3 of 2013 on the file of Judicial Magistrate of First Class, Madakasira. 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, charges 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 PW-1 to PW-12 and got marked Ex.P1 to Ex.P17, beside marking M.Os. 1 to M.O.5. 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, however, except examining DW-1, no documentary evidence was adduced. 6. The learned Sessions Judge after disbelieving the evidence of DW-1, convicted the accused basing on the two dying declarations recorded by the Police and the Magistrate, which are placed on record as Ex.P9 and Ex.P12, coupled with the evidence of PW-1 and PW-2, which establish harassment of the deceased by the accused. Challenging the same, the present appeal came to be filed. 7. Sri. D. Kodandarami Reddy, learned counsel appearing for the appellant would submit that the two dying declarations recorded cannot be relied upon as they are an outcome of tutoring. Challenging the same, the present appeal came to be filed. 7. Sri. D. Kodandarami Reddy, learned counsel appearing for the appellant would submit that the two dying declarations recorded cannot be relied upon as they are an outcome of tutoring. Even otherwise, he would submit that, since the incident is preceded by a quarrel, the nature of the offence has to be scaled down to one under Section 304 Part-I I.P.C. In any event, he would also contend that, even accepting the entire case of the prosecution as it is, no offence under Section 498A I.P.C. is made out. In support of his plea, he took us through the two dying declarations recorded by PW-9 and PW-10. 8. On the other hand, Sri. K. Srinivasa Reddy, learned Public Prosecutor, opposed the same contending that there is absolutely no material on record to disbelieve the two dying declarations, which are placed on record as Ex.P9 and Ex.P12. Hence, the two dying declarations cannot be eschewed from consideration. According to him, these two dying declarations not only establish the incident in question, but also the fact of deceased being subjected to harassment prior to the incident by way of beating, in view of the relationship of accused with another lady. In view of the above, he would submit that the conviction and sentence imposed requires no interference. 9. The point that arises for consideration is, whether the prosecution was able to bring home the guilt of the accused beyond doubt for the offences punishable under Sections 302 and 498A IPC? 10. There is no dispute with regard to the relationship between the accused and the deceased. It is also not in dispute that the marriage between the accused and deceased took place about 10 to 12 years prior to the incident and they were blessed with a male and female child. The evidence of PW-1, PW-2 and PW-3 would show that, initially both of them lived happily for few years and, thereafter, disputes arose when the accused developed illicit intimacy with another woman in the village. On one occasion, the accused is said to have hit the deceased on the head leading to a grievous injury on her head. 11. The evidence of PW-1, PW-2 and PW-3 would show that, initially both of them lived happily for few years and, thereafter, disputes arose when the accused developed illicit intimacy with another woman in the village. On one occasion, the accused is said to have hit the deceased on the head leading to a grievous injury on her head. 11. The evidence of PW-2, who is none other than the brother of the deceased, also shows that the accused developed illegal intimacy with some other woman and used to beat the deceased very often and also abuse her. According to him, when the deceased, used to question the illegal intimacy, the accused used to grew wild and beat her. The said acts of harassment and beating were informed to them by the deceased. It is the evidence of PW-1 and PW-2 that a panchayat was also convened in this regard, but, there was no change in the attitude of the accused. 12. It is the evidence of PW-3, who is the neighbour of PW-2, that on the date of incident at about 6.00 a.m. while she was going to bring water, there was some galata between the accused and deceased in their house. She went there and noticed the accused pouring kerosene and setting her on fire. She claims to have seen the incident and went away. By that time, other neighbours who came there put off the flames. According to him, by the time the flames were put off, the entire body of the deceased was burnt. Then the injured was shifted in 108 ambulance to Government Hospital at Madakasira, where her statement was recorded by PW-9 (Sub-Inspector of Police) and also by the Magistrate (PW-10) under Ex.P9 and Ex.P12, which we will discuss later. Though, these three witnesses were cross-examined but nothing useful came to be elicited to discard their evidence. 13. Learned Counsel for the Appellant tried to contend that, PW-1 in his cross-examination categorically admitted that he was not examined by the police and he is deposing before the court as per the incident. But, we feel that subsequent answers elicited in the cross-examination clarifies the earlier admission, which reads as under: “Police not examined me. I am deposing before the court as per the incident. I am not deposing anything at the dictation of either public prosecutor or police. But, we feel that subsequent answers elicited in the cross-examination clarifies the earlier admission, which reads as under: “Police not examined me. I am deposing before the court as per the incident. I am not deposing anything at the dictation of either public prosecutor or police. It is also not true to suggest that the deceased health is not good, her character is also not good, she poured kerosene herself and set ablaze her herself.” 14. Even assuming for the sake of argument that PW-1 was not examined by Police, during the course of investigation, but there lies the evidence of PW-2 and PW-3 who in categorical terms speak not only about the illicit intimacy of the accused with another lady, in the village, but also accused beating the deceased whenever the deceased questioned him about his illegal intimacy. Even PW-3 and PW-4 who are the neighbours speak about the same. Nothing has been elicited to discredit the same. Hence, the finding of the Trial Court in convicting the accused for the offence punishable under Section 498A I.P.C. warrants no interference. 15. 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 Sub-Inspector of Police (PW-9) and the Magistrate (PW-10). 16. In Atbir vs. Government of NCT of Delhi, 2010 AIR 3477 the Apex Court, after noting earlier judgments, has 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. (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) 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. 17. The evidence of PW-9 discloses that, on 20.12.2012 at about 8.30 a.m. on receipt of intimation from Government Hospital, Madakasira, he proceeded to the Government Hospital and found the injured conscious and coherent and her mental status being normal. He recorded her statement under Ex.P9. It would be appropriate to extract the statement recorded by him under Ex.P9, which is as under: “My parental place is Gadde Thimmanahalli Village of Madhugiri Taluk, Karnataka State. Ten years back, I got married with Anantharaju son of Hanumantharayappa of Kodagarigutta Village, Rolla Mandal. We have got two children. My son Vinaya Kumar is studying III Class and my daughter Aiswaraya goes to Anganwadi School. Since one year my husband Anantharaju developed illicit intimacy with another lady, frequently quarrelling and beating me by expressing he do not want my company and forcing me to go away. Today i.e. on 20.12.2015 at about 6.00 A.M. while I was in the kitchen, he started quarrelling. I too quarrelled with him by stating that he has got illicit intimacy with another lady and giving harassment to me. Then with an intention to kill me, he poured kerosene on my body and set fire. Today i.e. on 20.12.2015 at about 6.00 A.M. while I was in the kitchen, he started quarrelling. I too quarrelled with him by stating that he has got illicit intimacy with another lady and giving harassment to me. Then with an intention to kill me, he poured kerosene on my body and set fire. My neighbours, Harijana Hanumakka and Chakala Giriyappa came and covered my body with blanket to save me. My face, breast, stomach, abdomen, both hands, both thighs and knees are almost burnt. My brother Lakshminarasappa and his wife Hanumakka and others shifted me to Government Hospital, Madakasira through 108 ambulance for treatment. Doctors started treatment. On your enquiry I stated all above. Read over and explained to are true and correct.” 18. The duty doctor (PW-11), who was present in the hospital endorsed on the said statement with regard to the mental condition of the injured. She categorically states that the injured was conscious and coherent while recording the statement (slurred speech). 19. A reading of the above statement would establish beyond reasonable doubt that, while she was in kitchen, the accused started quarrelling with her. When she questioned the accused about his illicit intimacy with another lady and harassing her; immediately, the accused poured kerosene on her body and set her on fire. The neighbours, who were present there, covered the body with the blanket and then shifted her to hospital. 20. The argument of the counsel for the appellant would have assumed some significance provided the accused made some effort to put of the fire or take her to hospital. It appears that, he ran away from the scene after setting her on fire. The brother (PW-2) of the injured, his wife and others shifted the injured to Government Hospital, Madakasira, in 108 ambulance. 21. PW-10, who was working as Judicial First Class Magistrate, Madakasira, at the relevant point of time, on receiving the intimation of admission in the hospital, proceeded to the Community Centre, Madakasira, and recorded the statement of the injured/deceased. Before recording the statement/dying declaration, he obtained a certificate from the doctor with regard to the mental state of mind of the injured. Before recording the statement/dying declaration, he obtained a certificate from the doctor with regard to the mental state of mind of the injured. After putting some preliminary questions and being satisfied with the state of mind of the injured, PW-10 recorded the statement of the injured, wherein, she categorically stated that, in the morning hours of 20.12.2012, her husband (accused) poured kerosene and set her on fire. She further states that, on hearing her cries, villagers came to her rescue, put off the flames and, thereafter, shifted her to the hospital. The declarant gave statement both in Kannada and Telugu language and the version in Kannada was translated in Telugu by the Doctor (PW-11). After recording the statement, he obtained the left leg toe impression of the injured and, thereafter, again obtained certificate from the Doctor (PW-11) with regard to the mental condition of the declarant, at the time of recording the statement. Ex.P12 is the said statement recorded by PW-10. 22. We do not find any inconsistency in the two dying declarations recorded by the two authorities. Even the learned counsel for the appellant did not point out any inconsistencies in the two dying declarations recorded by the Police and the Magistrate. Apart from that, a perusal of the two dying statements disclose that before recording the statements, the Magistrate obtained the certificate from the Doctor (PW-11) with regard to the mental condition and after recording the statement, another certificate was obtained from the Doctor (PW-11) with regard to the mental condition of the injured. In both the certificates, it has been stated that the deceased was conscious, coherent and in a fit state of mind to give the statement. Though, the statement of the deceased was said to have been given in Kannada language, which was translated into Telugu by the Doctor (PW-11), but the contents of which are not disputed by the learned counsel for the Appellant. In fact, the learned Counsel for the Appellant failed to show any prejudice being caused to him on such translation, nor was it pointed out that the narration of events changed while translating from Kannada language to Telugu. In fact, PW-11 is the doctor, who translated from Kannada to Telugu. She was subjected to cross-examination but nothing useful has been elicited to discredit the same. In fact, PW-11 is the doctor, who translated from Kannada to Telugu. She was subjected to cross-examination but nothing useful has been elicited to discredit the same. The suggestion that she colluded with PW-10 and made this declaration at the instance of the relatives of the injured was denied. She categorically stated that, she assisted the Magistrate in translation, as she knew Kannada and her services were utilized by the Magistrate. 23. 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. 24. 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 20.04.2015 in Sessions Case No. 123 of 2013 on the file of Additional Sessions Judge, Hindupur. 25. Consequently, miscellaneous petitions, if any, pending shall stand closed.