CRLA/564/2010 of Boya Narayanappa, Vs The State of Andhra Pradesh, on 30 December 2014

Criminal Appeal No. 564 of 2010

Dated. 30.12.2014

Between:

Boya Narayanappa

Vs.

… Appellant/Accused

The State of Andhra Pradesh,Represented by Public Prosecutor,High Court, Hyderabad.

… Respondent

HON'BLE SRI JUSTICE G. CHANDRAIAHANDHON'BLE SRI JUSTICE M.S.K.JAISWAL

Criminal Appeal No. 564 of 2010

JUDGMENT:(Per Hon’ble Sri Justice G. Chandraiah)

This criminal appeal is preferred by the Appellant/Accusedaggrieved by the judgment and conviction ordered in S.C.No. 145 of2009, dt.09.12.2009 by the learned Additional Sessions Judge,Hindupur. By virtue of the impugned judgment, the appellant wasfound guilty for the offence under Section 302 IPC, convicted andsentenced to undergo imprisonment for life, and to pay a fine ofRs.100/-.

2. The case of the prosecution is that the deceased BoyaLakshmidevamma is the wife of late B. Narayanappa and mother ofPWs.1 to 3. After the death of her husband, she developed illegalintimacy with the accused, who became paramour of the deceased. The deceased was doing vegetable business and maintaining herfamily, including the accused. The accused used to harass thedeceased demanding money for his bad vices. Further, on22.05.2008 at about 4.00 p.m., the accused came to the house ofthe deceased and demanded money to have alcohol. The deceasedtold him that she has no money, upon which the accused grew wildand openly challenged the deceased stating as to who will rescueher from his hands, if he kills her. By saying so, the accused tookplastic kerosene tin, poured kerosene on the deceased and set heron fire with a match stick, as a result of which, the deceasedsustained burn injuries. On hearing the cries of theinjured/deceased, PWs.4 to 6 along with one Talari Reddappa camethere, tried to rescue the deceased by pouring water, and theaccused also tried to put off the flames. However, after theincident, the accused ran away from the place; PWs.4 and 5 shiftedthe injured to Government hospital, Penukonda, and from there shewas shifted to Government hospital, Hindupur, where PW.19 –S.Gangulappa, Head Constable, Hindupur recorded the statement ofthe injured (Ex.P.21) in the presence of the duty doctor. Onintimation, PW.16–Judicial First Class Magistrate, Hindupurrecorded the dying declaration of the deceased (Ex.P.17) in thepresence of the duty doctor. Later, the injured Lakshmidevammasuccumbed to the burn injuries, while undergoing treatment. Initially, the case was registered for the offence punishable under Section.307 IPC, and after receipt of the death intimation (Ex.P.20),the Sub-Inspector of Police, Roddam (PW.20) altered the Section oflaw from 307 to 302 IPC, and issued Express FIR to all concerned. The Inspector of Police (PW.21) took up further investigation,arrested the accused, who confessed about his involvement in theincident, and filed charge sheet against the accused aftercompletion of the investigation.

3. The learned Judicial First Class Magistrate, Penukonda hastaken cognizance against the accused in PRC No.59 of 2008 for theoffence under Section 302 IPC, and committed the case to the Courtof Sessions Division, Anantapur, as the offence is exclusivelytriable by the Court of Sessions, and the learned District & SessionsJudge, Anantapur, having assigned S.C.No.145 of 2009, made overthe case to the Additional Sessions Judge, Hindupur for disposal inaccordance with law.

4. On appearance of the accused, after hearing the learnedAdditional Public Prosecutor and the defence counsel, the trial Courtframed a charge against the accused for the offence punishableunder Section 302 IPC against the accused, and on its denial by theaccused, conducted trial. In order to prove its case, theprosecution has examined PWs.1 to 21, marked Exs.P.1 to P.30and M.Os.1 to 6.

5. PW.1 – Boya Muthu, PW.2 – Boya Barathi and PW.3 – BoyaAruna are the daughters of the deceased, to whom the deceasedsaid to have made oral declaration with regard to the cause of burninjuries to her. PW.4 – Boya Neelampalli Ramesh, PW.5 – BoyaHanumanthu, PW.6 – Boya Gujjala Papamma, PW.7 –D.Ramanujappa and PW.8 – Boya Venkaas Laxmamma are said to speak about the incident. PW.9 – Talari Boya Aswarthappa, PW.10–Boya Rajeswari and PW.17 – Boya Ramesh are said to have actedas mediators for the inquest on the person of the deceased. PW.14– S. Sadiq Ali and PW.18 – Neeruganti Basappa are said to haveacted as mediators for the observation of scene of offence and alsofor seizure of the material objects. PWs.11 and 15 are said tospeak about the arrest and confession of the accused in theirpresence.

PW.12 – Dr. Thyagaraju is said to have treated the accused–and issued wound certificate (Ex.P.12); and PW.13 Dr.G.V.Bhaskar Reddy is the doctor, who conducted post-mortemexamination of the deceased. PW.16 – S.Ramanaiah, the thenJudicial First Class Magistrate, Hindupur has recorded the dyingdeclaration (Ex.P.17) of the deceased. PW.19 – S.Gangulappa,Head Constable is said to have recorded the complaint-statement ofthe injured (Ex.P.21). PW.20 – M.Ganganna, Sub-Inspector ofPolice, registered the case and issued FIR. PW.21 – Kolar Krishna,Inspector of Police conducted investigation, arrested the accusedand filed charge sheet.

Exs.P.1 to P.8 are the statements of PWs.1 to 8 respectively,under Section 162 Cr.P.C.; Exs.P.9, P.10 and P.18 are thesignatures of PWs.9, 10 and 17 respectively on inquestpanchanama. Exs.P.11 and P.15 are the signatures of PW.11 andP.W15 on arrest mahazarnama. Ex.P.12 is the wound certificate ofthe accused issued by PW.12; and Ex.P.13 is the post mortemcertificate issued by PW.13. Ex.P.17 is the dying declaration of thedeceased recorded by PW.16. Ex.P.21 is the complaint-statementof the injured Lakshmidevamma, recorded by PW.19, Head Constable in the presence of the duty doctor.

6. After closure of the prosecution evidence, the accused wasexamined under Section 313 Cr.P.C., explaining the incriminatingmaterial against him in the evidence of prosecution witness. Theaccused denied the same and stated that he was no way connectedwith the death of the deceased and the police foisted this false caseagainst him. However, no defence witnesses were examined andno exhibits were marked on behalf of the accused.

7. After hearing both sides, and considering the materialavailable on record, the trial Court found the accused guilty for theoffence under Section 302, convicted and sentenced him to undergoimprisonment for life and pay a fine of Rs.100/-. Aggrieved by thesame, the present appeal is preferred by the accused.

8. The learned counsel appearing for the accused submits thatthe trial Court ought not to have found the accused guilty for theoffence under Section 302 IPC and sentence him for lifeimprisonment. He further submits that all the material witnessesi.e., PWs.1 to 10, 11, 14, 15, 17 and 18 turned hostile and did notsupport the case of the prosecution, and the remaining witnessesare official witnesses. The learned counsel further submits that thetrial Court solely based on the dying declarations, recorded byPWs.16 and 19 for convicting the accused, which is not correct. Hefurther submits that at the time of the incident, the accused was indrunken condition, and admittedly he too tried to rescue the injuredby pouring water on the flames, which clearly establishes that theaccused has not made any attempt to kill the deceased, or has nointention to kill the deceased. Hence, the learned counsel submitsthat the trial Court ought to have acquitted the accused instead of convicting him, and prayed for acquittal of the accused by settingaside the impugned judgment under appeal.

9. On the other hand, the learned Public Prosecutor submitsthat as many as 21 witnesses were examined on behalf of theprosecution, and though some witnesses have turned hostile, thematerial witnesses, namely, the Duty Doctors PWs.12 and 13, PW.16 – Judicial First Class Magistrate, who recorded the dyingdeclaration of the deceased, PW.19 – Head Constable, whorecorded the complaint-statement of the deceased, and PWs. 20and 21, Investigating Officers, have supported the case of theprosecution, deposed about the occurrence of the incident, and theirevidence is corroborated with each other and supported by themedical evidence. Therefore, the learned Public Prosecutorsubmits that there is ample evidence available to the prosecution,which is sufficient to prove the guilt of the accused, and thus theprosecution has substantially proved its case and the guilt of theaccused beyond reasonable doubt. Hence, the trial Court onconsidering the entire evidence on record rightly found the accusedguilty and convicted him accordingly. Therefore, the learned PublicProsecutor submits that it is not a fit case for interference by thisCourt and submits that the appeal may be dismissed.

10. In view of the above rival submissions, the points that arisefor consideration are, firstly, whether the prosecution has proved itscase beyond reasonable doubt; and secondly whether the trial Courtis right in imposing the punishment of life imprisonment on theaccused.

11. We have perused the impugned judgment and considered theentire material available on record. The learned counsel for the

appellant/accused does not dispute the factual position and theevidence on record. Admittedly, in this case all the materialwitnesses have turned hostile and did not support the case of theprosecution. However, PW.12, the doctor who treated the accused,deposed that he examined the accused and found three burn injuriesover his face, left forearm, and the palm of both hands and rightwrist, which are superficial and issued Ex.P.12 wound certificate.PW.13, the doctor, who conducted post mortem examination of thedeceased, deposed that he conducted post mortem examination on23.05.2008 on the person of the deceased – BoyaLakshmidevamma, and found extensive burns all over the body,except soles, which are superficial to deep, apart from someinternal injuries, like congestion of lungs and brain, and some bloodin the heart. PW.20, the Sub-Inspector of Police, deposed about thereceipt of Ex.P.21 statement of the injured Lakshmidevamma, onthe basis of which he registered a case in Crime No.23 of 2008under Section 307 IPC and sent Ex.P.22 – FIR to all the concernedand took up investigation. He further deposed that on the sameday, he received Ex.P.23 death intimation of the injured andtherefore he altered section of law from 307 to 302 IPC and issuedaltered FIR Ex.P.24 to all the concerned. PW.21, Inspector ofPolice deposed that on 23.05.2008 he took up the investigation,verified the investigation part done by PW.20, examined PWs.1 to 8,recorded their statements, held inquest, sent the dead body of thedeceased to Post-mortem, visited the scene of offence, andprepared Ex.P.26 rough sketch map. Further, on 19.06.2008 hearrested the accused, who confessed for having involved in theincident, and sent the material objects to Laboratory under Ex.P.29, and after receipt of Ex.P.30 RFSL report, and completion of theinvestigation laid the charge sheet.

12. Apart from the above witnesses, the other importantwitnesses are PW.16, Judicial First Class Magistrate, who recordedthe dying declaration of the deceased; and PW.19, Head Constable,who recorded the complaint-statement of the injured/deceased, inthe presence of the duty doctor. PW.16, the then Judicial FirstClass Magistrate, Hindupur, deposed that on 22.05.2008 at about8.40 p.m. he received Ex.P.16 MLC intimation from the GovernmentHospital, Hindupur to record the statement of injuredLakshmidevamma. Immediately, he rushed to the Hospital andfound the injured undergoing treatment. In the presence of the dutydoctor, he put simple questions to ascertain the state of mind of theinjured for which she gave proper answers, and later recorded herdying declaration (Ex.P.17), which is as under:

“One Narayanappa (accused) is her paramour andhe used to come to the house in drunken condition anddemanding her to give money. For that she refused to givemoney as demanded by Narayanna (accused). Therefore,Narayanappa (accused) beat her. There was kerosene oilin her house and the said Narayanappa (accused) pouredkerosene on her and lit fire with beedi who was smokingby then. On that Lakshmidevamma ablazed and ran outfrom the house. Then, the neighbours, PW4 and someothers came there, covered blanket on her to put offflames. The accused also sustained burn injuries to hishands, when he came there and pull her. The accusedwent from there, PW4 and PW5 brought her to theGovernment Hospital, Penukonda and from there she wasshifted to the Government Hospital, Hindupur.

PW-16 further deposed that he read over the contents of

PW-16 further deposed that he read over the contents of Ex.P.17 statement to the injured, she admitted the same to be trueand correct, and hence he obtained her LTM on Ex.P.17. The dutydoctor also endorsed on Ex.P.17 statement that the patient wasconscious and coherent while she was giving statement.

13. Coming to the evidence of PW-19, Head Constable, hedeposed that on 22.05.2008 at 10.00 a.m. he received Ex.P.20medical intimation from the Government Hospital, Hindupur torecord the statement of the injured Lakshmidevamma. Heimmediately rushed to the Hospital, found burn injuries on theinjured, who was in a position to give the statement, and recordedher statement, in the presence of the duty doctor. Ex.P.21 is thesaid complaint statement of the injured Lakshmidevamma. The dutydoctor also certified about the state of mind of the injured onEx.P.21. He also stated that he sent Ex.P.20 medical intimation,and Ex.P.21 complaint statement of the injured to the Roddampolice station on the point of jurisdiction.

14. As could be seen from Ex.P.21, the complaint statementmade by the injured, which is recorded by PW.19, Head Constable,the injured stated that her husband died about years ago, that shedeveloped illegal intimacy with the accused and the accused wasparamour of the deceased. The accused did not give anything formonthly maintenance. On the other hand, the accused wasdemanding her for money for his bad vices and making galata whenshe refused to give money. She (deceased) further stated inEx.P.21 that on 22.05.2008 at about 4.00 p.m., the accused cameand demanded her to give money for alcohol purpose, and shereplied that she has no money. Therefore, the accused threatenedher that nobody will come to her rescue, if he kills her, and by saying so the accused picked up kerosene oil and poured on herand lit fire with match stick, resulting in burn injuries. Immediately,PWs.4 and 5 came there and the accused left from there, andPWs.4 and 5 also put off the flames and brought her to the hospital.

15. In this case, the evidence of PW-16, Judicial First ClassMagistrate, and PW-19, Head Constable has got vital importance,as all the material witnesses have turned hostile and did not supportthe case of the prosecution. The entire case revolves on Ex.P.17,dying declaration recorded by Judicial First Class Magistrate(PW.16), and Ex.P.21, complaint statement recorded by the HeadConstable (PW.19), in the presence of the duty doctor. Apart fromthis, there is absolutely no material to prove the guilt of theaccused. Hence, we have to examine the correctness or otherwiseand the acceptability of both Ex.P.17, the dying declaration recordedby the Judicial First Class Magistrate (PW.16), and Ex.P.21complaint statement recorded by the Head Constable. Ex.P.17 -Dying declaration is the earlier document than Ex.P.21 complaintstatement. Ex.P.17 - dying declaration was recorded by the JudicialFirst Class Magistrate - PW16 at 8.45 p.m. on 22.05.2008; whereasEx.P.21 complaint statement was recorded by PW.19, HeadConstable, at about 10.00 p.m. on the same day i.e., 22.05.2008,which was the base to register the case against the accused. Inboth these statements, the duty doctor endorsed that the patientwas conscious, coherent and in a fit state of mind to give suchstatement. PW-16, the then Judicial First Class Magistrate, afterrecording the dying declaration (Ex.P.17) read over and explainedits contents to the injured, upon which she admitted the same to betrue and correct, and later he obtained the LTM of the injured. The duty doctor again endorsed on Ex.P.17. Similar is the situation withregard to Ex.P.21, complaint statement recorded by PW.19, HeadConstable, on which also the duty Doctor certified similarly.

16. In a case of this nature, where even though all materialwitnesses have turned hostile and did not support the case of theprosecution, the dying declaration made by the injured/victim willacquire more importance and can form the sole basis for conviction,if it is free from legal infirmities. The only important thing is that,the statement of the deceased should be consistent through out. Ifthe injured/deceased had several opportunities of making suchdeclarations, they should be consistent. It is also settled that if thedying declaration is found to be voluntary reliable and made in a fitmental condition, it can be safely relied upon without any kind ofcorroboration. However, the reliability of such declaration should besubjected to close scrutiny in view of the fact that it was made inthe absence of the accused, who had no opportunity to test thesame by cross-examining the person making such statement. Inthis case, apart from Ex.P.17, dying declaration recorded by thejurisdictional Judicial First Class Magistrate, PW.19, HeadConstable recorded Ex.P.21 complaint statement. In this situation,if there are any inconsistencies and infirmities between these twostatements, we have to examine the nature of the saidinconsistencies in both the statements, in the light of varioussurrounding facts and circumstances, whether they are material ornot. But, in this case, having seen Ex.P.17, dying declarationrecorded by Judicial First Class Magistrate and Ex.P.21 complaint-statement recorded by Head Constable, it is clear that there isconsistency in both the statements that the accused poured kerosene on Lakshmidevamma and lit fire, as she could not givemoney, as demanded by the accused. In both the statements, theinjured clearly stated that the accused is the person who pouredkerosene on her and lit fire, however, with minor discrepancy withregard to the source of fire i.e., with smoking beedi or match stick. In our view, such a minor inconsistency is not a valid ground todiscard the dying declaration or the complaint statement, which arecorroborating with each other. Apart from that, the contents ofEx.P.25 inquest panchanama are clearly corroborated with thecircumstances stated both in Ex.P.17, dying declaration andEx.P.21 complaint statement of the deceased. In view of the aboveand also in view of the endorsement of the duty doctor that theinjured was in a fit state of mind to give the statement, either thecorrectness of the contents of both Ex.P.17, dying declaration andEx.P.21 complaint statement, or the physical/mental fitness of thevictim/deceased to make such statements, cannot be doubted.

17. In a case of this nature, it is settled that there is neither ruleof law nor of prudence that the dying declaration cannot be actedupon without corroboration, and if the Court is satisfied that thedying declaration is true and voluntary, it can form the sole basis forconviction without any corroboration. In this case, though there aretwo dying declarations or statements, they are consistent andcorroborative with each other. The dying declaration is thestatement made by a person as to the cause of his/her death or thecircumstances which resulting in his/her death. Therefore, we areof the view that the Court below, considering the evidence onrecord, particularly, the evidence of PWs.16 and 19, supported byExs.P.17 and P.21, had come to a correct conclusion that the prosecution has proved the guilt of the accused beyond reasonabledoubt, and thus the accused is liable for punishment.

18. The next aspect, which is relevant, is that though theappellant/accused is held responsible for the cause of the death ofthe deceased and liable for punishment, we have to see whether theCourt below is right to come to the conclusion that the accused hadany intention to commit the murder of the deceased, and thus liableto be punished for the offence under Section 302 IPC. As far as thisaspect is concerned, as could be seen from the material on record,the admitted case of the prosecution is that when the deceased toldhim that she has no money, the accused grew wild and openlychallenged the deceased who will rescue her from his hands, if hekills her, and by saying so, the accused instantly took plastickerosene tin, poured kerosene on the deceased and set her on firewith a match stick, as a result of which, the deceased sustainedburn injuries. It is also on record that on hearing the cries of theinjured/deceased, PWs.4 to 6 along with another person camethere, poured water on the injured, and the accused himself alsotried to put off the flames by pouring water. It is also available onrecord that in the process of rescuing the victim/deceased from theflames, the accused sustained burn injuries, for which he tooktreatment, as is evident from Ex.P.12, wound certificate issued bythe Doctor, PW.12. Therefore, as rightly pointed out by the learnedcounsel for the appellant/accused, we are of the view that theaccused had no intention to kill the accused, as there is nopreparation or predetermination to kill. Therefore, we are of theview that the act committed by the appellant/accused amounts toculpable homicide not amounting to murder.

19. Therefore, taking into consideration the above totality of thefacts and circumstances, the act committed by the appellant/accused and other circumstances surrounding the incident, we feelthat the offence that is committed by the accused attracts theprovisions of Section 304 Part-I of IPC, but not Section 302 IPC.

20. In that view of the matter, we are of the view that though theaccused is guilty of the act committed by him, the judgmentimpugned needs to be modified, as the accused is liable to beconvicted for the offence under Section 304 Part-I IPC, instead ofSection 302 IPC.

21. In the result, the Criminal Appeal is partly allowed. Theconviction imposed against the appellant-accused in S.C.No. 145 of2009, dt.09.12.2009, by the Additional Sessions Judge, Hindupur,for the offence punishable under Section 302 I.P.C., is convertedinto Section 304 Part.I of the Indian Penal Code; and the sentenceof imprisonment of life is reduced to seven years rigorousimprisonment, with set off of the period of sentence alreadyundergone by the accused. However, the fine amount imposed bythe trial Court is maintained.

After the completion of this modified sentence ofimprisonment, the appellant–Accused shall be set at liberty, unlesshis detention is required in any other case. The material objects, ifany, shall be destroyed after the appeal time is over.

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Dt.30.12.2014

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M.S.K. Jaiswal,J.

Kv

Kv

Criminal Appeal No. 564 of 2010(Judgment of the Division Bench delivered byHon’ble Sri Justice G. Chandraiah)

Dated: 30.12.2014