THE HONOURABLE Dr. JUSTICE CHILLAKUR SUMALATHA
&
THE HONOURABLE SRI JUSTICE A.SANTHOSH REDDY
CRL.A.No.227 OF 2014
JUDGMENT:- (Per the Hon'ble Sri Justice A.Santhosh Reddy)
Appellants 1 and 2 herein are A-1 and A-2 in Sessions Case
No.456 of 2012, on the file of the Special Sessions Judge for Trial
of Cases under the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act-cum-Additional Sessions Judge,
Khammam, were convicted for the offences punishable under
Sections 302 and 302 read with Section 34 IPC respectively and
sentenced to undergo life imprisonment and to pay a fine of
Rs.5,000/-, in default to suffer simple imprisonment for six months,
by judgment dated 10.02.2014.
2. Learned counsel for the appellant-A-2 before
commencement of his submissions brought to the notice of this
court that the appellant-A-2, who is mother of appellant-A-1, was
granted special remission by the Government and was released
from prison. In the light of the said submissions, the appeal,
insofar as the appellant-A-2, stands dismissed, as the same has
become infructuous.
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3. The prosecution case, briefly stated, is as follows:
Appellant-A-1 is the husband of the deceased Saidamma
(hereinafter referred to as 'the deceased'). Their marriage was
held about 9 years prior to the incident as per their caste customs.
They led conjugal life for some years and were blessed with a
male child, aged about 3 years at the time of the alleged incident.
A-2 is the mother of A-1 and A-3 to A-5 are the sister and
brothers of A-1. Later, all the accused started harassing the
deceased physically and mentally, demanding additional dowry.
A-1 developed illicit intimacy with another lady and was not
looking after the deceased since two years prior to the incident and
used to harass her to bring additional dowry from her parents.
About six months prior to the incident, A-1 to A-5 necked her out
from the house and a complaint was lodged with the police who
counselled A-1 to A-5 and they compromised the issue and the
accused assured that they will look after the deceased well and took
her to their house at Vikramnagar Village. On 27.09.2011 evening
at about 1530 hours, A-1 decided to do away with the life of the
deceased, intentionally quarreled with her on the pretext that she
was quarelling with his mother (A-2) and sister (A-3) and beat her
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indiscriminately. The deceased fell down and A-3 brought a
kerosene bottle from the house and gave it to her mother A-2, who
poured kerosene on the deceased, A-1 brought a match box and
gave it to her mother (A-2) and A-2 lit fire to the deceased.
The deceased sustained severe burn injuries. Immediately, she
was shifted to Pooja Hospital, Khammam. The duty doctor sent a
requisition to the learned Magistrate (P.W.11) for recording the
dying declaration and the learned Magistrate recorded the dying
declaration of the deceased. While undergoing treatment on
13.11.2011 at 08:00 a.m., the deceased succumbed to injuries.
4. The father of the deceased lodged a report with police in
Ex.P-1. P.W.10, the then Sub-Inspector of Police, initially
registered a case in Cr.No.154 of 2011 for the offences punishable
under Sections 498-A and 307 IPC and thereafter altered the
section of law from Sections 307, 498-A read with Section 34 IPC
to Sections 302 IPC, 498-A read with Section 34 IPC and Sections
3 and 4 of the Dowry Prohibition Act and submitted FIRs to all the
concerned. P.W.10 examined P.W.1 and recorded his statement
on 15.10.2011 and later arrested A-1 to A-5 and produced them
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before the court. During the course of investigation, P.W.10 went
to Government Hospital, Khammam and recorded the statement of
deceased and also examined P.W.2 and recorded her statement.
Thereafter, he visited the scene of offence and prepared scene of
offence panchanama in the presence of P.Ws.7 and 9 and seized
M.Os.1 to 7 i.e., burnt saree, blouse, petty coat, kerosene bottle,
burnt match sticks, match box and broken bangle pieces.
On 13.11.2011, the deceased succumbed to injuries. P.W.10
altered the section of law and submitted a memo in Ex.P-11.
5. It is further stated that investigation was done by P.W.14, the
then Inspector of Police, Wyra. He stated that he visited the house
of P.W.1 on 13.11.2011 and held inquest over the dead body of
the deceased in the presence of P.Ws.7, 8 and another. P.W.13 is
the Photographer who took photographs of the deceased. P.W.14
secured the presence of P.Ws.1 to 7 and other witnesses and
recorded their statements. P.W.16, Dr.J.Shoba Devi, Resident
Medical Officer at District Headquarters, Khammam directed
Dr.T.Srinivas, Civil Assistant Surgeon, for conducting post-
mortem examination and he, accordingly, conducted post-mortem
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examination over the dead body of the deceased and issued
post-mortem examination report Ex.P-17. After completion of
investigation and after receipt of all the reports, P.W.14 filed
charge sheet.
6. The accused appeared before the trial court and pleaded
not guilty to the charges framed under Sections 302, 498-A IPC
and Sections 3 and 4 of the Dowry Prohibition Act against A-1 and
under Sections 302 read with Section 34 IPC, 498-A read with
Section 34 IPC and Sections 3 and 4 of the Dowry Prohibition Act
against A-2 to A-5 and they claimed to be tried.
7. During the course of trial, the prosecution examined as
many as 16 witnesses as P.Ws.1 to 16 and marked 18 documents
as Exs.P-1 to P-18 and produced M.Os.1 to 7. On behalf of
defence, none was examined, but Exs.D-1 to D-3 were marked.
8. On appreciation of the oral and documentary evidence,
the trial court convicted and sentenced the appellants-A-1 and A-2,
as noted hereinabove.
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9. We have heard Mr.Nazir Khan, learned counsel for the
appellant-A-1 and learned Assistant Public Prosecutor for the
respondent-State.
10. Learned counsel for the appellant-A-1 submits that P.Ws.1 to 3 are interested witnesses and the circumstantial witnesses PWs.4 to 6 turned hostile. There is no cogent evidence forthcoming to convict the accused. The deceased in her dying declaration has not stated anything against A-1. She only mentioned that her husband beat her and, in fact, everything was done by A-2. Learned counsel further submits that the prosecution evidence is not cogent and convincing to convict the accused for the alleged offences. Learned counsel alternatively submits that even if the participation of the accused in the commission of offence is proved, there is nothing on the part of the accused to kill the deceased. In fact, the deceased had taken steps for her survival by taking her to hospital for treatment and the deceased died of medical negligence and in view of the said facts and circumstances of the case, at the most, A-1 may be liable for conviction for the offence punishable under Section 304 Part II IPC. In support of his 7 submissions and contentions, learned counsel on the following decisions:
i. SATYE SINGH AND ANOTHER v. STATE OF
UTTARAKHAND
ii. RACHAMALA SRINU v. STATE OF ANDHRA
PRADESH1
iii. STATE OF RAJASTHAN v. SANTOSH SAVITA2
iv. RAMPAL SINGH v. STATE OF UTTAR
PRADESH3
v. STATE OF ORISSA v. SIMANCHAL GOUDA
AND OTHERS4
vi. STATE OF UTTAR PRADESH v. SUBHASH
ALIAS PAPPU5
vii. SANJAY v. STATE OF UTTAR PRADESH6
11. Learned Assistant Public Prosecutor appearing for the respondent-State opposed the submissions of learned counsel for the appellant-A-1 and contends that the prosecution had successfully proved the guilt of the accused with cogent and convincing evidence and the dying declaration of the deceased. 1 2014(1) ALD (CRL.) 765 (AP) 2 AIR 2013 SC 3731 3 (2012) 8 SCC 289 4 1997 CRL.L.J 1861 5 (2022) 6 SCC 508 6 (2016) 3 SCC 62 8 There are no grounds to interfere with the judgment of the trial court.
12. We have considered the submissions of learned counsel for the parties with reference to the evidence on record.
13. The point that arises for consideration is - whether the judgment of the court below is sustainable?
14. It is the evidence of P.Ws.1 and 2 that the marriage between A-1 and the deceased took place about 9 years prior to the incident. The deceased and A-1 led happy marital life about two to three months and thereafter, A-1 developed illegal contacts with one Ramana and started ill-treating the deceased. A-1 also used to demand additional dowry and their daughter informed him about the ill-treatment of the accused. According to P.W.1, panchayats were also conducted before the elders i.e., P.Ws.3 and 4 and another and the same was attended by A-1 and his brothers. A-1 assured before the elders that he will look after the deceased carefully and took the deceased to his matrimonial home. Again, A-1 started ill-treating the deceased and other accused also ill-treated her. P.W.1 further deposed that he also lodged a 9 complaint with Police, Konijerala and they conducted counseling and the deceased joined A-1 and four months thereafter, all the accused attempted to kill the deceased, who later informed him about the said attempts. Then he took his daughter to give a complaint to Police, Konijerla, who advised them to give complaint to the Superintendent of Police, Khammam. Police again conducted counselling and A-1 to A-5 admitted their guilt and assured that they will maintain good relations with his daughter. The daughter of P.W.1 gave birth to a male child, who was aged one and half years by then. He sent the deceased and the child to the accused. P.W.1 further stated that four months thereafter, he came to know that A-1 poured kerosene on the deceased and lit fire and same was informed to him by neighbours and the deceased was shifted to Pooja Hospital.
15. It is the further evidence of P.Ws.1 and 2 that they visited Pooja Hospital and found their daughter with burn injuries. The deceased informed them that A-1 kicked her and brought her into the street and all the accused were present and A-3 is said to have poured kerosene and A-2 lit fire and A-4 and A-5 did not 10 allow anybody to rescue the deceased. However, P.W.2 stated that A-2 poured kerosene on the body of the deceased and lit fire. Except the said discrepancy, the evidence of P.Ws.1 and 2 is consistent.
16. P.W.3 is the elder in the village who participated in the pachayats being conducted by P.W.1 on three occasions with regard to ill-treatment of the deceased by A-1 and also about his alleged illegal contacts. He further deposed that he came to know that the deceased was killed by pouring kerosene. It is clear from the evidence of P.Ws.1 to 3 that the deceased was found with burn injuries in the hospital and the deceased informed to P.Ws.1 and 2 as to how she sustained burn injuries and she also stated specifically that A-1 kicked her and brought her into the street and that A-2 poured kerosene on her and lit fire. The other accused did not allow anybody to come to rescue of the deceased. P.Ws.1 and 2 stated that panchayats were held with regard to the ill- treatment of the deceased by A-1 and about his illegal contacts and the said evidence is corroborated by the evidence of independent witness and panchayatdar P.W.3. In cross-examination of P.Ws.1 to 3, nothing material was elicited to discredit their testimony. 11
17. It is the case of prosecution that on 27.09.2011 at about 0330 hours, A-1 quarrelled with the deceased and beat her indiscriminately and she fell down and A-2 poured kerosene on her and lit fire to the deceased. Later, she was admitted in Pooja Hospital, Khammam.
18. P.W.15, Dr.Ch.Babu Rao, deposed that the deceased was admitted in their hospital with burns and was treated. Subsequently, she died on 13.11.2011 at about 08:00 a.m. P.W.14, the then Inspector of Police, deposed that on receiving information about the death of the deceased, he held inquest over the dead body of the deceased in the presence of P.W.7. Ex.P-7 is the inquest panchanama. He sent requisition to Government Hospital, Khammam to conduct spot post-mortem examination over the dead body of the deceased at the house of P.W.1, as the body was not in a position to be shifted to hospital. The evidence of P.W.16, Dr.J.Shoba Devi, Resident Medical Officer at District Headquarters, Khammam, is that on 13.11.2011 at about 01:30 p.m., Dr.T.Srinivas, Civil Assistant Surgeon, conducted autopsy over the dead body of the deceased. Ex.P-17 is the post- 12 mortem examination report. The contents of the same show that the deceased Saidamma sustained 70% burn injuries and the cause of death of the deceased was shown as deep burns with sepsis. Thus, we hold that the deceased did die homicidal death.
19. Now, we proceed to scrutinize the entire prosecution evidence so as to ascertain whether the prosecution is able to connect the appellant-A-1 to the crime?
20. In order to prove the case against the accused, apart from the evidence of P.Ws.1 to 3, the crucial piece of evidence of the prosecution is the dying declaration-Ex.P-13, which is on record. In the instant case, P.W.11, learned Special Judicial Magistrate, Khammam, recorded the dying declaration of the deceased Saidamma at Pooja Hospital, Khammam. Her evidence is to the effect that she received requisition on 27.09.2011 at 06:50 p.m., and reached the hospital about 07:05 p.m., to record the dying declaration of the deceased. She identified the deceased with the help of the duty doctor and that she commenced recording of the dying declaration of the deceased at 07:45 p.m., due to non-availability of the doctor. P.W.11 obtained certificate from 13 the duty doctor about the mental condition of the deceased to give statement. She put some preliminary questions to the deceased to know about her mental condition and after being satisfied that the patient was conscious and capable of answering coherently, she proceeded to record the statement of deceased. The dying declaration-Ex.P14 was recorded in verbatim. The contents of Ex.P-14 were read over and explained to the deceased which she admitted to be true and correct. The duty medical officer who was present through out recording the statement of the deceased along with P.W.11 endorsed that the patient was physically and mentally fit while recording her statement and she was conscious and coherent and that her mental condition was normal through out recording her statement.
21. The deceased in her dying declaration categorically stated that on the date of incident at about 01:00 p.m., her husband beat her due to which she fell down and her mother-in-law poured kerosene and lit fire. To a specific question put to the deceased as to who was responsible for this, the deceased stated 'her mother-in- law'.
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22. In the light of the evidence of the Magistrate-P.W.11 and the dying declaration-Ex.P-14, wherein A-1 and A-2 were specifically named as culprits and they are responsible for the burn injuries sustained by the deceased, and as the deceased, at the time of recording the dying declaration, was in full senses, there is no reason to disbelieve the dying declaration. It appears from the statement of the deceased in the dying declaration that the appellants-A-1 and A-2 with a common intention to do away with her beat her and poured kerosene and lit fire. As a result, the deceased sustained severe burn injuries and later succumbed to the same.
23. On a careful scrutiny of the entire evidence discussed supra, we are of the opinion that from the evidence of P.Ws.1 to 3, the prosecution has established the fact that the deceased was ill-treated by the accused and was subjected to cruelty while living with A-1. The evidence of P.W.1 further proves the fact that the accused used to ill-treat the deceased and they used to beat her and panchayats were also held in that regard and apart from that, P.W.1 specifically stated that complaints were also lodged to the 15 police two times prior to her death and counseling was also given with regard to the ill-treatment meted out to the deceased. It is also proved that P.Ws.1 and 2 received a phone call about the incident that the deceased was shifted to Pooja Hospital, Khammam and they rushed to the hospital. The deceased stated to them that A-1 beat her and A-2 poured kerosene and set her ablaze. Though the circumstantial witnesses P.Ws.4 to 6 turned hostile, however, P.Ws.5 and 6 stated that they saw the deceased Saidamma with burn injuries and she succumbed to the same. The deceased survived for about 47 days and she succumbed to the injuries on 13.11.2011 at about 08:00 a.m.
24. What becomes evident from the entire evidence of the prosecution is that the deceased was beat by her husband (A-1) and her mother-in-law (A-2) poured kerosene and set fire to her. The facts and circumstances deposed by the parents of the deceased- P.Ws.1 and 2 and the panchayat elder-P.W.3 make it amply clear that A-1 and A-2 used to harass and ill-treat the deceased. From the evidence of P.Ws.1 to 3 and the dying declaration of deceased, it can safely be believed in its entirety that 16 the appellants-A-1 and A-2 intended to do away with the life of the deceased and as a result, the incident occurred. The deceased herself stated in the dying declaration that her husband (A-1) only beat her and her mother-in-law (A-2) set her ablaze. The deceased suffered 70% burn injuries and she survived for more than 47 days and died due to burn injuries with sepsis.
25. Having regard to the circumstances of the case, we are of the opinion that it is difficult to hold that the appellant-A-1 intended to cause death of his wife. We are also of the considered view that the case fits into Part II of Section 304 IPC. The conduct of the appellants-A-1 and A-2 and the manner in which the crime had been committed is sufficient to attract Section 34 IPC, as both of them acted in furtherance of their common intention. Therefore, the conviction of the appellant-A-1 for the offence punishable under Section 302 read with Section 34 IPC is to be modified to conviction under Section 304 Part II read with Section 34 IPC.
26. In the result, the criminal appeal is partly allowed. The conviction recorded against the appellant-A-1 in the judgment dated 10.02.2014 in Sessions Case No.456 of 2012, on the file of 17 the Special Sessions Judge for Trial of Cases under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act-cum- Additional Sessions Judge, Khammam, for the offence punishable under Section 302 read with Section 34 IPC is modified to that of the offence under punishable under Section 304 Part II read with Section 34 IPC. The appellant-accused is, accordingly, convicted and sentenced to undergo rigorous imprisonment for a period of ten years for the offence punishable under Section 304 Part II read with Section 34 IPC. The direction to pay fine is, however, left undisturbed. The remand period already undergone by the appellant-A-1 shall be given set off.
27. Pending miscellaneous petitions, if any, stand closed.
______________________________________ Dr. JUSTICE CHILLAKUR SUMALATHA ______________________________ JUSTICE A.SANTHOSH REDDY 25.11.2022 Lrkm