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2024 DIGILAW 399 (AP)

Jakkam Daniel, Prakasam Dt. v. State Of AP Rep PP

2024-03-27

B.V.L.N.CHAKRAVARTHI, K.SURESH REDDY

body2024
JUDGMENT : (B.V.L.N. Chakravarthi, J.) 1. Heard Sri K.Raja Reddy, learned counsel and Sri V.Raghu, learned Legal Aid Counsel for the appellant/accused, and Sri S.Dushyanth Reddy, learned Addl. Public Prosecutor for respondent/State. 2. The appeal vide CRL.A.No.724/2016 is filed for the sole accused/appellant by Sri V.Raghu, learned Legal Aid Counsel. The appeal vide CRL.A.No.1159/2016 is filed for the sole accused/appellant by Sri K.Raja Reddy, learned counsel engaged by the sole accused/appellant. Both the appeals arose from the judgment dated 11.07.2016 delivered in S.C.99/2014 on the file of the learned VI Addl.District & Sessions Judge, Prakasam at Markapur (hereinafter referred to as ‘trial Court’). 3. Both the appeals are merged and disposed of by a single judgment. 4. The appellant/accused was tried and convicted for the offence U/s.302 of Indian Penal Code, 1860 (for brevity ‘I.P.C.’), and sentenced to suffer rigorous imprisonment for life, and also to pay fine of Rs.500/- (Rupees Five Hundred only), in default, to suffer simple imprisonment for one month. 5. Both the appeals are merged and disposed of by a single judgment. 4. The appellant/accused was tried and convicted for the offence U/s.302 of Indian Penal Code, 1860 (for brevity ‘I.P.C.’), and sentenced to suffer rigorous imprisonment for life, and also to pay fine of Rs.500/- (Rupees Five Hundred only), in default, to suffer simple imprisonment for one month. 5. The case of the prosecution is that the marriage of accused and Smt.Jakkam Mariyamma (hereinafter referred to as ‘deceased’) was solemnised six years ago in a church in K.Padu village; they came down to Ambavaram village and residing in the house of Sri V.Kasayya, which is located beside the house of parents of deceased; they blessed with a girl child namely Suguna Rani; the accused habituated to consume alcohol; he was beating and harassing the deceased physically and mentally suspecting her fidelity; he decided to kill the deceased two days prior to the incident in the case; on 28.05.2012 at about 03.30 p.m., the deceased went to answer calls of nature; she returned to home at about 04.00 p.m.; the accused suspected her that she went outside to have sex with others; he became furious and on her arrival, he suddenly poured kerosene on her body, set fire and went away; the deceased raised cries; the neighbours shifted her to the Community Health Centre, Giddalur; on receipt of hospital intimation, Head Constable, Giddalur Police Station visited the hospital and recorded statement of deceased (Ex.P-18); he registered the same as case in Cr.No.126/2012 for the offence U/s.307 I.P.C.; he submitted the original FIR (Ex.P-19) to the Judicial Magistrate of First Class, Giddalur and copies to all the concerned; on receipt of intimation from hospital, Prl.Junior Civil Judge, Giddalur (P.W-15) visited the hospital and recorded the dying declaration of deceased (Ex.P-26). (a) During investigation, Head Constable visited hospital examined and recorded the statement of deceased; he also examined and recorded statements of Y.Aseervadamma (P.W-1) mother of deceased, Y.Devabhaktudu (P.W-2) father of deceased, Y.Devadanam (P.W-3), Y.Prabhakar (P.W-4) brothers of deceased, K.Krupamma (P.W-5) sister of deceased, D.Mariyamma (P.W-6) maternal aunt of deceased. (a) During investigation, Head Constable visited hospital examined and recorded the statement of deceased; he also examined and recorded statements of Y.Aseervadamma (P.W-1) mother of deceased, Y.Devabhaktudu (P.W-2) father of deceased, Y.Devadanam (P.W-3), Y.Prabhakar (P.W-4) brothers of deceased, K.Krupamma (P.W-5) sister of deceased, D.Mariyamma (P.W-6) maternal aunt of deceased. (b) On 29.05.2012 at about 08.30 a.m. Head Constable (P.W-13) accompanied by mediators J.Vijaya Rao (P.W-8) and other visited the scene of offence, got prepared scene observation report (Ex.P-20), seized material objects (M.Os-1 to 5) and got the scene of offence photographed (Ex.P-15) by P.Mohan (P.W-11) and prepared rough sketch of scene of offence (Ex.P-21); he also examined and recorded statements of Y.Devabhaktudu, father of deceased (P.W-2); Y.Devadanam (P.W-3), brother of deceased, D.Mariyamma, Maternal Aunt (P.W-6) and A.Ravikumar, relative of the deceased (P.W-7) and others; the deceased was shifted to the Government Hospital, Nandyal, for better management of the case; later she was referred to Government General Hospital, Kurnool; she was brought to Community Health Centre, Giddalur, on 06.06.2012; the deceased died on 09.06.2012 at about 03.45 a.m. while undergoing treatment. (c) On receipt of death intimation, Head Constable (P.W-13) altered the section of law and filed a memo to that effect before the Judicial Magistrate of First Class, Giddalur; he sent a requisition to P.Khadar Vali (P.W-12) Incharge Tahsildar of Giddalur to conduct inquest over the dead body of deceased; In-charge Tahsildar, Giddalur, conducted inquest over dead body of deceased in the presence of inquestdars under the cover of inquest report (Ex.P-16); he also sent a copy of alteration memo to Inspector of Police, Giddalur (P.W-16); Inspector of Police took-up further investigation, visited scene of offence, examined and recorded statements of witnesses; the dead body was sent to conduct autopsy; the Medical Officer by name B.P.Ranganayakulu (P.W-10) conducted autopsy over the dead body of deceased and issued post mortem report (Ex.P-14), opining that the deceased would appear to have died by septicaemia due to burn injuries; on 11.07.2012 Inspector of Police arrested the accused near R.T.C. bus stand, Giddalur, in the presence of mediators; Inspector of Police after completion of investigation laid report (charge sheet) against the accused for the offence U/s.302 I.P.C. 6. During trial, 16 witnesses were examined for the prosecution as P.Ws-1 to 16 respectively, 27 documents were marked as Exs.P-1 to P-27 respectively, apart from M.Os-1 to 5. 7. During trial, 16 witnesses were examined for the prosecution as P.Ws-1 to 16 respectively, 27 documents were marked as Exs.P-1 to P-27 respectively, apart from M.Os-1 to 5. 7. The accused was examined U/s.313 Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C. 1973’) regarding the incriminating evidence appearing against him from the evidence for the prosecution. The accused denied the same, but did not choose to examine any witnesses for defence. 8. The learned trial Judge after hearing the prosecution and defence, found the accused guilty, convicted him for the offence U/s.302 I.P.C. and sentenced him as stated supra. 9. Challenging the judgment, the above two appeals i.e., one by Legal Aid Counsel and another by the learned counsel engaged by accused filed separate appeals. 10. Sri K.Raja Reddy, learned counsel engaged by the appellant/sole accused and Sri V.Raghu, learned Legal Aid Counsel, contended that the trial Court erroneously convicted the accused solely basing on the dying declaration recorded by Head Constable and the Judicial Magistrate, though they are the statements made on tutoring. They would further submit that the evidence on record would show that the deceased would appear to have died due to septicaemia after 12 days, due to lack of proper treatment, and the death is not due to burn injuries, and therefore, the case would fall under exceptions U/s.300 I.P.C., 1860. At best, it is a case of culpable homicide not amounting to murder punishable under Part-I of section 304 I.P.C. 11. Sri S.Dushyanth Reddy, learned Addl. Public Prosecutor would submit that the dying declaration is a substantive piece of evidence and it can be the sole basis for order of conviction and sentence without there being any corroboration, when the dying declaration creates a sense of confidence and trustworthiness in the mind of the Court. 12. He would further submit that in the case on hand, the dying declaration (Ex.P-26) recorded by the Judicial Magistrate (P.W-15) would establish that it was recorded in the presence of duty doctor, when the deceased was conscious, coherent, and fit to give statement, and the learned Judicial Magistrate after satisfying that the deceased is fit to give statement, recorded her statement. In the said statement, the deceased categorically stated that the accused was suspecting her fidelity and on the date of-course, she went to attend calls of nature and returned to house, then the accused came behind her and poured kerosene on her and set fire and nothing was elicited in the cross-examination of the learned Judicial Magistrate or the Head Constable to contend that her statement is an outcome of prompting or tutoring. The evidence on record would show that the deceased made the statement voluntarily. Therefore, there is no reason to disbelieve the dying declaration of the deceased recorded by the Judicial Magistrate as well as Head Constable. There are no contradictions on material fact in the statements. Hence, the dying declaration can be used as the sole basis for conviction of accused. 13. The learned Public Prosecutor would further submit that the dying declaration would disclose that the accused with a premeditation came behind the deceased, poured kerosene on her, and set fire, to prevented the deceased from escaping and he went away from the scene of offence. This conduct of accused would establish that he caused death by doing the act with intention and thereby committed the offence of culpable homicide amounting to murder. Hence, there are no grounds to interfere with the judgment of the learned trial Judge. 14. In the light of above rival contentions, the point that would arise for determination in both appeals is as under:- “Whether the prosecution proved the guilt of the accused for the offence U/s.302I.P.C. beyond all reasonable doubt?” 15. POINT: We perused the evidence of P.Ws-1 to 16. It is an admitted case that the deceased is the wife of the accused, and they are residing in the house of Sri V.Kasaiah located near the house of parents of the deceased in Ambavaram village. P.W-1 mother of deceased, P.W-2 father of deceased, P.Ws-3 and 4 brothers of deceased, P.W-5 sister of deceased, P.W-6 maternal aunt of deceased, and P.W-7 relative of deceased did not support the case of the prosecution. 16. P.W-8 is a Village Volunteer examined to speak about his presence at the time of observation of scene of offence and inquest by the Head Constable. He also did not support the case of the prosecution. 16. P.W-8 is a Village Volunteer examined to speak about his presence at the time of observation of scene of offence and inquest by the Head Constable. He also did not support the case of the prosecution. P.W-9 is Village Revenue Officer, Giddalur, examined to speak about the observation of the scene of offence (Ex.P-20) and inquest report (Ex.P-16) and arrest of the accused. He also did not support the case of the prosecution. 17. P.W-10 is Civil Assistant Surgeon, working in Government Hospital, Giddalur. He deposed about the autopsy conducted over the dead body of the deceased and issuing Ex.P-14 post mortem certificate. He opined that deceased would appear to have died due to septicemia, due to burn injuries. Nothing was elicited in the cross-examination to contend that septicemia was due to improper treatment or lack of treatment. 18. P.W-11 is the photographer, who deposed about taking photographs (Ex.P-15) at mortuary in Government Hospital. P.W-12 is In-charge Tahsildar, Giddalur. He deposed about the inquest conducted over the dead body of the deceased on 09.06.2012 at about 08.30/09.00 a.m. vide Ex.P-16 inquest report. 19. P.W-13 is Head Constable recorded the statement of deceased (Ex.P-18) on 28.05.2012 at about 08.00 p.m. in Government Hospital, Giddalur and later, registered the same as Ex.P-19 FIR and submitted the same to the Judicial Magistrate of First Class, Giddalur, and copies to all the concerned. Nothing was elicited in his cross-examination about the presence of parents, relatives or friends by side of the deceased at the time of recording statement to contend that Ex.P-18 is an outcome of tutoring or prompting. On the other hand, it was elicited that doctor certified that patient is conscious and coherent at the time of recording the statement. 20. P.W-14 is the Medical Officer, he deposed that the deceased was conscious, coherent at the time of recording statement and he categorically deposed that no anesthesia was given to the deceased at that time. 21. P.W-15 is Prl.Junior Civil Judge, Giddalur, who recorded the statement of deceased i.e., dying declaration vide Ex.P-26. Nothing was elicited in the cross-examination to establish that the statement was an outcome of tutoring or prompting. The evidence of the Judicial Magistrate would disclose that the deceased was conscious, coherent, and fit to give statement at that time. 21. P.W-15 is Prl.Junior Civil Judge, Giddalur, who recorded the statement of deceased i.e., dying declaration vide Ex.P-26. Nothing was elicited in the cross-examination to establish that the statement was an outcome of tutoring or prompting. The evidence of the Judicial Magistrate would disclose that the deceased was conscious, coherent, and fit to give statement at that time. The statement recorded by Head Constable as well as the Judicial magistrate would establish that the accused came behind the deceased, suddenly poured kerosene on her and immediately set fire and went away saying the deceased to die. 22. There are no material contradictions between Ex.P-18 and Ex.P-26 statement recorded by the Head Constable and the Judicial Magistrate with regard to way in which the incident was occurred. There is no material on record to say that the statement of the deceased is an outcome of tutoring or prompting made by parents, relatives, or friends of the deceased. In these circumstances, we are of the considered opinion that the dying declarations are true and made voluntarily by the deceased. They can be based for conviction without any corroboration. 23. The Hon’ble Apex Court in the case of P.V.Radhakrishna Vs. State of Karnataka, AIR 2003 SC 2859 , held that “dying declaration itself can be treated as a substantive piece of evidence and can be the basis of an order of conviction and sentence without there being any corroboration, provided, however, the same brings forth a sense of confidence and trustworthiness in the mind of the Court.” 24. On considering the dying declarations in the case on hand, we are of the opinion that they bring forth a sense of confidence and trustworthiness in our mind. Therefore, they can be treated as substantive piece of evidence and can be basis of an order of conviction and sentence, without there being any corroboration. 25. The conduct of the accused made out from the dying declarations in the case would establish that the accused with an intention to cause death came behind the deceased, poured kerosene on her and set fire immediately and went away. In these circumstances, we are of the considered opinion that it is a culpable homicide amounting to murder as laid down U/s.300 I.P.C., punishable U/s.302 I.P.C. Therefore, we do not see any ground to interfere with the conviction and sentence imposed by the learned trial Judge. In these circumstances, we are of the considered opinion that it is a culpable homicide amounting to murder as laid down U/s.300 I.P.C., punishable U/s.302 I.P.C. Therefore, we do not see any ground to interfere with the conviction and sentence imposed by the learned trial Judge. Accordingly, the point is answered. 26. In the light of foregoing discussion, the appeals are liable to be dismissed. 27. In the result, the Criminal Appeal No.724/2016 filed by the learned Legal Aid Counsel and Criminal Appeal No.1159/2016 filed by the learned counsel engaged by the appellant/accused are dismissed, by confirming the judgment dated 11.07.2016 delivered in S.C.No.99/2014 on the file of learned VI Additional District and Sessions Judge, Prakasam at Markapur. Miscellaneous petitions pending, if any, in both the Criminal Appeals shall stand closed.