CRLA/198/2016 of V. LAXMANA RAO, E.G.DIST. Vs P.P., HYD on 30 December 2022

THE HONOURABLE SRI JUSTICE C.PRAVEEN KUMAR AND

THE HONOURABLE SRI JUSTICE DR.V.R.K.KRUPA SAGAR

CRIMINAL APPEAL No.198 of 2016

JUDGMENT:- (Per Hon’ble Sri Justice C.Praveen Kumar)

Sole accused in Sessions Case No.2 of 2014 on the file of the learned III Additional District & Sessions Judge, East Godavari District at Kakinada is the appellant herein. He was tried for the offence punishable under Section 302 I.P.C. for causing the death of his wife – Vempala Naga Laxmi (hereinafter, referred to as “the deceased”).

2. Vide judgment, dated 31.12.2015, the learned Sessions Judge convicted the accused for the offence punishable under Section 302 I.P.C. and accordingly, sentenced him to undergo imprisonment for life and to pay fine of Rs.1,000/-, in default of payment of fine, to undergo simple imprisonment for a period of three months.

3. The case of the prosecution, in brief, is as under:- The accused is the husband of the deceased. P.W.1 is the sister-in-law of accused while P.W.2 is the brother of the accused. P.W.3 is the mother-in-law of the accused i.e., mother of the deceased and P.W.4 is the sister of the deceased. P.Ws.5 to 8 are the residents of Kakinada. About six years prior to the date of incident, the accused married the deceased. It is said that at the time of marriage, a sum of Rs.90,000/- was presented to the accused. The accused and the deceased were blessed with two daughters. It is said that the accused, who was eking out his livelihood by doing painting works, got addicted to alcohol. About four years after the marriage, the accused used to look after the deceased well and thereafter, suspected her fidelity. There used to be altercations between them and on one occasion, P.W.3 and her family members went to the house of the accused and admonished him and asked him to take care of the deceased. The accused is said to have replied that he would take care of the deceased. On the date of occurrence, at about 10.30 p.m., P.W.2, who is the brother of the accused, informed P.W.3 over telephone that the deceased was admitted in the hospital and her condition is serious. On the next day morning, they visited the Government General Hospital, Kakinada and found the deceased with complete burn injuries. When enquired, the deceased is said to have stated that as she slept without bolting the door, the accused suspected her and at about 10.00 p.m., he quarreled with her and as the accused suspected her fidelity, she went into the kitchen and poured kerosene on herself. Then, the accused is said to have lit a match stick and set fire on her.

On 20.08.2013, at 10.35 p.m., P.W.5 – Casuality Medical Officer, Government General Hospital, Kakinada intimated the Out Post Police of the hospital about the admission of the injured in the hospital. Ex.P-14 is the Police Intimation. The Doctor also sent intimation to the Magistrate on the next day at 7.05 a.m. Ex.P-12 is the requisition sent to the Magistrate. Basing on the statement recorded by L.W.18, who was working as Head Constable of I Town L & O Police Station, Kakinada, a case in Crime No.140 of 2013 came to be registered for the offence punishable under Section 307 I.P.C. The said crime was registered by P.W.14. Ex.P-19 is the F.I.R. Ex.P-18 is the statement of the injured recorded by the said police. After registering the crime, P.W.14 proceeded to Government General Hospital, Kakinada, examined the injured and recorded the statement of the injured, which is placed on record as Ex.P-20. He also examined P.Ws.1 and 2. On the same day, he visited the scene of offence and in the presence of P.Ws.8 and 9, prepared a Scene Observation Report, which is marked as Ex.P-9. He also prepared a rough sketch of the scene, which is marked as Ex.P-21. At the scene, he seized a kerosene tin –

M.O.1, partly burnt saree under M.O.2 and partly burnt half saree under M.O.3. During the course of enquiry, he came to know that the accused, who also suffered burn injuries, is absconding from the place of offence. On 23.08.2013, at about 12.00 noon, the accused was arrested at Government General Hospital, Kakinada and he was having burn injuries on his body. After arrest, he was remanded to judicial custody. The deceased, who was treated in Government General Hospital, Kakinada, died on 26.08.2013. Ex.P-22 is the death intimation received from the Government Hospital. Thereafter, the section of law was altered to one under Section 302 I.P.C. Ex.P-23 is the altered F.I.R.

Further investigation in this case was taken up by P.W.15, who on receipt of copy of F.I.R., sent requisition to Mandal Executive Magistrate for holding inquest. On 27.08.2013, at 8.00 a.m., P.W.15 visited the mortuary of the Government General Hospital, examined P.Ws.1 to 5 and recorded their statements. He also secured the presence of P.W.9 and in his presence, conducted inquest over the dead body. Ex.P-10 is the Inquest Report. After completing the inquest proceedings, he sent the body for post mortem examination.

P.W.10, who was working as Assistant Professor in the Department of Forensic Medicines in R.M.C., Kakinada, conducted autopsy over the dead body of the deceased and issued Ex.P-11 – Post Mortem Certificate. According to him, the cause of death was due to septic and toxic conditions as a result of Wilson’s 1[st] degree burns of about 72% of total body surface area.

It is also to be noted here that on 21.08.2013, at 8.45 a.m., P.W.11, who was working as Special Mobile Judicial Magistrate of First Class, Kakinada, recorded the dying declaration. On receipt of requisition, he proceeded to Government General Hospital, Kakinada, identified the injured and after obtaining the certificate from the Doctor, recorded the dying declaration of the injured. The same is placed on record as Ex.P-13. After completing the entire investigation, a charge sheet came to be filed, which was taken on file as P.R.C.No.29 of 2013 on the file of the learned III Additional Judicial Magistrate of First Class, Kakinada.

4. On appearance of the accused, copies of the documents, as required under Section 207 Cr.P.C., were supplied to him. As the offence is triable by a Court of Sessions, the case was committed to the Court of Sessions under Section 209 Cr.P.C.

Accordingly, the same was made over to the Court of the learned III Additional District & Sessions Judge, East Godavari District at Kakinada for trial and disposal in accordance with law.

5. Basing on the material available on record, charge, as referred to earlier, came to be framed, read over and explained to the accused in Telugu to which, he pleaded not guilty and claimed to be tried.

6. To substantiate its case, the prosecution examined P.Ws.1 to 15 and got marked Exs.P-1 to P-23 and M.Os.1 to 3. After the closure 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 the prosecution witnesses to which he denied. No oral or documentary evidence was adduced on his behalf.

7. Out of 15 witnesses examined by the prosecution, P.Ws.1, 2 and 6 did not support the prosecution case and were treated hostile by the prosecution. Believing the oral evidence, coupled with the three dying declarations recorded by various officers, the learned Sessions Judge convicted the accused and sentenced him, as stated supra. Challenging the same, the present appeal came to be filed by the accused.

8. Heard Sri Mettu Govardhan Reddy, learned counsel for the appellant, and the learned Public Prosecutor for the respondent State.

9. The point that arises for consideration is:- “Whether the prosecution has proved the guilt of the accused for the offence punishable under Section 302 I.P.C. beyond all reasonable doubt?”

10. POINT:-

As seen from the record, the prosecution is relying upon the evidence of P.Ws.1 to 3 and the dying declarations which are placed on record as Exs.P-18, 20 and 13. P.W.1 is the sister-in-law of the deceased. She did not support the prosecution case and was treated hostile by the prosecution. Similarly, P.W.2, who is the brother of the accused, also did not support the prosecution case and was treated hostile by the prosecution.

11. P.W.3 is the mother of the deceased. She, in her evidence, deposed about the accused suspecting the fidelity of her daughter and the altercations between them. She also says that on one day, at about 10.30 p.m., brother of the accused (P.W.2) informed her over telephone about deceased being in serious condition and her admission in the hospital and on the next day, when they visited the hospital, the deceased is said to have told them that on the fateful day, she slept along with her child without bolting the door; that at 10.00 p.m., the accused came to the house and after waking her up, abused her as to why she did not bolt the doors and whether she was expecting anybody to come; feeling aggrieved, she poured kerosene on herself and then, the accused, saying as “E rojutho peda vadilipothadi, neney antichivestanu”, lit a match stick and set her fire. In the cross examination, it has been elicited that P.W.3 and others used to visit the house of the accused regularly and the accused used to look after the deceased amicably. The suggestion that the deceased accidentally fell on a kerosene lamp, which was kept in the room, was denied.

12. P.W.4 is the sister of the deceased. She, in her evidence, also speaks about receiving a phone call from P.W.2 and they going to the house of the accused on the next day morning. Her evidence is in tune with the evidence of P.W.3 in all material aspects.

13. P.W.5, who is related to the accused, in his evidence deposed that on the date of occurrence, at 9.30 p.m., he came to his house and after dinner, heard some cries and then, went to the backyard and saw the deceased coming out of her house with flames on her body and falling down. Thereafter, the brother-in-law and co-sister of the deceased took her to the hospital. When enquired, P.W.2 is said to have informed that his brother/accused poured kerosene and set fire the deceased. This evidence of P.W.5, in our view, cannot be accepted for the reason that he is neither a direct witness to the incident nor did the deceased make any statement before him.

14. The evidence of other witnesses, whom we have referred to earlier, show that on the fateful day, at about 10.00 p.m., the accused came to the house and questioned the deceased as to why she kept the door open and as to whether she is expecting any other person. Feeling aggrieved, the deceased is said to have poured kerosene and thereafter, accused set her on fire. These oral statements of deceased, in our view, are required to be tested.

15. Ex.P-13 is the dying declaration recorded by the Magistrate, who was examined as P.W.11. The learned Magistrate, after taking all the precautions, and also after taking the endorsement of the Doctor, recorded the statement of the injured. This statement was recorded on 21.08.2013 at 8.45 a.m. i.e., on the next day morning. In the said statement, the deceased stated as under:- “1) What is your name? Ans. Vempala Nagalakshmi.

2) What is the name of your husband? Ans. Lakshmanarao.

3) What is your village? Ans. Jagannadhapuram, Kakinada.

4) How many children you begot?

Ans. Two female children.

5) Are you in fit condition to give statement? Ans. Yes.

6) Do you know who I am?

Ans. No. I am given to understand that you are Magistrate.

With the above questions, I am satisfied that the patient is conscious and coherent to give the statement.

Sd/- xxx xxx,

21/8/13

Q) What had happened to you? Why you are in Hospital?

Ans. My husband used to abuse me daily. He did not do any work. Yesterday morning he went to somewhere. I waited till 12.00 noon and prepared food. Still as he did not come, I had meal and was doing iron work. He did not come till evening. I waited till 8.00 PM for my husband, and having decided to dine after he came, I slept. Night at about 10.00 PM he came, woke me up, and suspected me saying “you slept without closing the doors. For whom you opened the doors? Later he beat me.

Then I got anger, went into kitchen and poured kerosene on me. Even then without warn me, brought match box and lit fire to me, and caught me tightly in order to die both of us.

Immediately, I opened the doors and came out running. Meanwhile, neighbours set of the flames, and brought me to hospital on that night. Thereafter my husband wept.

Q. Is there anything more to say?

Ans. No.”

A reading of the said dying declaration would show that the accused came at 10.00 p.m. and woke up the deceased saying as to why she slept without closing the doors and for what purpose, she kept the door open. He is said to have beat her. Thereafter, the deceased went into the kitchen and poured kerosene. At that time, the accused brought a match box and set her on fire and thereafter, caught her tightly so that both of them could die. Immediately, the deceased is said to have opened the doors and came out running. Meanwhile, the neighours put off the flames and took the injured to the hospital. In the said dying declaration, the deceased also states that thereafter, her husband wept. The contents of this dying declaration are not in tune with the oral dying declarations alleged to have been made before P.Ws.2 and 3. On the other hand, it gives a total different picture namely the deceased herself pouring kerosene and thereafter, the accused setting the deceased on fire, embracing her stating “let both of us die”. In that process, the accused also sustained burn injuries as a result of which, he was admitted in the very same hospital in which the deceased was taken to.

16. Coming to Ex.P-18, which was the basis for issuing F.I.R., this statement was recorded by Sri Sk.Ismail, Head Constable

but for reasons best known, the said Constable was not examined. Therefore, this statement, in our view, cannot be taken into consideration. Though the statement is recorded by a Police Constable, but since the person who recorded the dying declaration was not examined, the same, in our view, cannot be treated as a substantive piece of evidence.

17. The next statement, which is placed on record, is Ex.P-20, which is also recorded on 21.08.2013 by P.W.14/Sub-Inspector of Police. The same reads as under:- “….. My husband used to do painting work. I got two daughters. We are all living in our own tiled house bearing Door No.62-5-1, Nunnaguppala vari Street. My husband addicted to drinking and since two years he used to come in drunken state and used to abuse me and beat me. He used to suspect me with one and all. For the past two years he is suspecting me and harassing me physically and mentally. Yesterday night i.e. on 20.08.2013 at 10.00 PM I slept while nourishing milk to my child, without closing doors. My husband came and asked as-“you slept without closing the doors. Who would come?” I replied that I forgot to close the door. On that my husband abused me in filthily. I got anger and poured kerosene in kitchen room on me. My husband, with an intention to kill me, saying- “ Are you threatening? Die you bastard. With this I would get rid of you” lit fire with match stick and thrown on me. My petty coat and upper cloth caught with flames. When I opened the doors and came out with shouting, my co daughter in law, my brother in law Venugopalarao, my another co daughter in law Kanakalakshmi and my brother in law Durga Prasad, who are my opposite residents, came, poured water on my body and set of flames. I sustained burn injuries on my face, chest, two hands, from shoulders to downwards and on back and skin is peeled off here and there. My brother in law Venugopalarao and my co daughter in law Kanakalakshmi took me on motor cycle to Kakinada Government Hospital. Doctor joined me and treating me. Police came and enquired me and recorded statement. Today when you came and enquired, I stated all that was happened.”

One fact which is required to be noted here is that the said statement does not contain the endorsement of the Doctor. Neither it contains the thumb impression nor the signature of the deceased. It is placed on record, as the statement recorded during the course of investigation. The statement does not disclose the time as to when it was recorded i.e., whether it was before the dying declaration recorded by the Magistrate or after the statement of the deceased recorded by the Magistrate. As held by the Hon’ble Supreme Court in number of cases, when there are more than one dying declarations, the one that is recorded by the Magistrate and inspires confidence has to be given importance. Even from the set of circumstances shown, the two other dying declarations, in our view, cannot be treated on par with the statement recorded by the Magistrate. In view of the discrepancies pointed out earlier, we intend to place reliance on the dying declaration recorded by the Magistrate to decide the case on hand.

18. As stated earlier, in the dying declaration recorded by the Magistrate, the deceased poured kerosene on herself and thereafter, the accused lit a match stick and threw it on her. While she was in flames, the accused embraced her so that both of them would die. If really his intention was to kill the deceased alone, he would not have indulged in the act of embracing the deceased or holding the deceased. He would have either left the place and allowed the injured to burn herself to death. Therefore, the conduct of the accused in holding the deceased after setting her on fire, so that both of them would die, clearly indicates that the accused had no intention to cause the death of the deceased. At the same time, one another circumstance which requires to be noted here is after the flames on the body of the deceased were stopped by the neighbours, the accused sat there weeping. He never made any effort to escape from the scene.

19. Further, the evidence of the Investigating Officer shows that the hands of the accused were burnt and he was also admitted in the Government General Hospital, Kakinada for treatment and he was arrested in the hospital while he was taking treatment. It is also to be noted here that when the accused had embraced the deceased, it appears that the deceased relieved herself and ran out of the house. Apart from that, a reading of the dying declaration would show that there was a quarrel in which the accused suspected the fidelity of the deceased by which she felt aggrieved, went and poured kerosene on herself. Therefore, viewed from any angle, it can be said that there is no intention for the accused to cause the death of the deceased. Hence, we feel that it is a fit case where the conviction warrants scaling down of the offence from Section 302 I.P.C. to Section 304 Part – II I.P.C.

20. In the result, the conviction and sentence recorded by the learned III Additional District & Sessions Judge, East Godavari District at Kakinada vide judgment, dated 31.12.2015, in Sessions Case No.2 of 2014 against the appellant/accused for the offence punishable under Section 302 I.P.C. are set aside. However, the appellant/accused is found guilty for the offence punishable under Section 304 Part – II I.P.C., and the sentence of imprisonment is reduced to the period already undergone. The appellant/accused shall be released forthwith, if he is not required in any other crime.

21. Accordingly, the Criminal Appeal is partly allowed.

Miscellaneous petitions pending, if any, in this Criminal Appeal shall stand closed.

_______________________________

JUSTICE C.PRAVEEN KUMAR

____________________________________

JUSTICE DR.V.R.K.KRUPA SAGAR

Date : 30.12.2022

AMD

129

THE HONOURABLE SRI JUSTICE C.PRAVEEN KUMAR AND THE HONOURABLE SRI JUSTICE DR.V.R.K.KRUPA SAGAR

CRIMINAL APPEAL No.198 of 2016

Date : 30.12.2022

AMD