Andhra Pradesh High Court - Amravati

Guttula Srinivas Srinu, Kakinada ... vs The State Of Ap., Rep. Pp., on 24 June, 2021

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        THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR

AND THE HON'BLE SRI JUSTICE B. KRISHNA MOHAN

Criminal Appeal No. 216 of 2013

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

Heard Smt. A. Gayatri Reddy, learned Counsel appearing

for the Appellant and Sri. M. Dushyanth Reddy, Additional

Public Prosecutor, through Blue Jeans video conferencing APP.

1) The sole accused in Sessions Case No. 676 of 2011 on the

file of IV Additional Sessions Judge, Kakinada, is the appellant

herein. He was tried for the offences punishable under Sections

302 and 498-A of Indian Penal Code, 1860 ['I.P.C.']. By its

Judgment, dated 06.02.2013, the learned Sessions Judge, while

acquitting the accused for the offence punishable under Section

498-A I.P.C., convicted and sentenced him to suffer

imprisonment for life and to pay fine of Rs.500/- for the offence

punishable under Section 302 I.P.C., in default to suffer simple

imprisonment for one month. Further M.O.7 was directed to be

returned to PW1 [mother of the deceased].

2) The substance of the charges against the accused is that,

on 28.04.2011 after 11.00 P.M, suspecting the fidelity of his wife

-Guthula Rama Devi ['deceased'], the accused is said to have

caused her death by setting her on fire.

3) The facts, in issue, are as under:

i) PW1 is the mother of the deceased. PW2 and PW3 are

brothers of the deceased, while PW4 is the son of the

accused and the deceased. PW5 is the mother of the

accused and PW6 is their neighbour.

ii) The marriage between the accused and deceased took

place about 10 years prior to the incident and they were

blessed with two sons and one daughter. The accused was

eeking out his livelihood by working as lorry driver. He

used to go on duty and return once in two or three days.

The deceased and the accused along with their children

were staying in the house of one Manoj at Thimmapuram

as tenants, since six months prior to the offence.

iii) On the date of incident, PW1 who is the mother of the

deceased went to the house of the deceased at 7.30 P.M.

The said house was at a distance of ½ kilometre to her

house. By which time the accused was not in house as he

did not return from duty. On the same day, at 11.00 P.M.

while PW1 was in her house, PW4, the son of the deceased

and accused came to her house and informed about the

deceased being in flames. Immediately, PW1 went to the

house of PW5, who is the mother of the accused and

informed about the incident and then both of them went to

the house of the deceased. PW3 and his wife also followed

PW1. At that time, the accused was not in house, but they

found the body of the injured burnt. On enquiry, the

deceased informed them that suspecting her fidelity, the

accused questioned as to the name of the person who

telephoned to her [gave missed call]. When she replied in

negative, the accused is to said to have abused her. She

further stated that, to threaten the accused she poured

petrol on her body, but the accused lit a match stick,

uttered to die, if she intends so and threw the same at her.

She further stated that when her body caught fire, the

accused covered her body with a bontha and left the scene.

PW1 claims to have noticed an empty bottle and clothes of

the deceased at the scene. Immediately, PW1 telephoned to

108 ambulance and took her to Government General

Hospital, Kakinada.

iv) On receiving Medico Legal Case intimation from

Government General Hospital, Kakinada, PW11 proceeded

to the hospital and recorded the statement of the injured,

which is placed on record as Ex.P9. Basing on Ex.P9, he

registered a case in Crime No. 50 of 2011 for the offences

punishable under Sections 498-A and 307 I.P.C. Ex.P10 is

the First Information Report. PW11 claims to have gone

back to the hospital and recorded the statements of PW1 to

PW3. It is also to be noticed here that, on the same day

PW11 proceeded to the scene of offence, which is a house

bearing Door No. 1-77/A, at Thimmapuram village and in

the presence of mediators prepared a rough sketch of the

scene, which is marked as Ex.P11. He also prepared an

observation report of the scene, which is placed on as

Ex.P6. At the scene of offence he seized M.O. 1 to M.O. 7.

v) On 29.04.2011 at about 2.45 A.M. PW12 -Additional

Judicial Magistrate of First Class Court, Kakinada,

received a requisition from Government General Hospital,

Kakinada, to record the dying declaration of the injured.

He proceeded to the hospital and recorded the statement of

the injured, which is placed on record as Ex.P16. His

evidence also shows recording the statement of the

accused on 30.04.2011 at 4.40 P.M. while he was taking

treatment in Government General Hospital, Kakinada,

which is also placed on record as Ex.P18.

vi) On receipt of death intimation of the deceased, PW11

altered the section of law to Section 498-A and 302 I.P.C.

and issued Ex.P14 the altered First Information Report.

Further investigation in this case was taken up by PW13 -

the Inspector of Police, who on receipt of altered First

Information Report, verified the investigation done by

PW11 and also proceeded to scene of offence to verify the

recordings at the scene. Thereafter, on 01.05.2011, he

along with PW11 and PW8 proceeded to the mortuary at

Government General Hospital, Kakinada, got photographed

the dead body of the deceased and in the presence of PW9

conducted inquest over the dead body. Ex.P7 is the

inquest report. The inquestdars opined that the accused

suspected the fidelity of the deceased on seeing the missed

call on her mobile phone and when the deceased poured

petrol on herself to threaten the accused, he lit fire by

throwing a match stick at her. Thereafter the body was

sent for post-mortem examination.

vii) PW10 - Assistant Professor in Forensic Medicine

conducted autopsy over the dead body of the deceased on

01.05.2011 at 11.05 A.M. and issued Ex.P8 -the post-

mortem report. According to him, the cause of death was

'due to shock as a result of wilsons 1st degree burns of 80%

of total body surface area'.

viii) It is to be noted that, on 29.04.2011 at about 3.10 A.M.,

the accused was also admitted in Government General

Hospital, Kakinada, due to burn injuries. PW14 examined

the injured and noticed burn injuries on his body. Ex.P23

is the wound certificate issued by PW14 -the doctor who

treated him. After collecting all the necessary documents

and after completing the investigation, PW13 filed a

charge-sheet which was taken on file as P.R.C. No. 17 of

2011 on the file of IV Additional Judicial Magistrate of First

Class Court, Kakinada.

ix) On appearance, 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, he pleaded not guilty and claimed to be

tried.

x) In support of its case, the prosecution examined PW1 to

PW14 and got marked Ex.P1 to Ex.P25, beside marking

M.O.1 to M.O.7. Out of the 14 witnesses examined by the

prosecution, PW5 and PW6 did not support the case of the

prosecution and were treated hostile by the prosecution.

Even PW2 and PW3 were declared hostile after they were

recalled for further examination. 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 but however no

oral or documentary evidence was adduced.

xi) Basing on the dying declarations recorded by the

Magistrate and the Police, which are consistent with each

other, the learned Sessions Judge convicted the accused

for the offence punishable under Section 302 I.P.C.

Challenging the same, the present appeal came to be filed.

4) Smt. A. Gayatri Reddy, learned counsel appearing for the

appellant submits that the entire case rests on the two dying

declarations made before the Sub-Inspector of Police and the

Magistrate and the oral dying declaration made before PW1. In

view of the inconsistency in the dying declarations, the learned

Counsel would submit that the same cannot be made the basis

to convict the accused. She further submits that the version in

the dying declaration that the display on the mobile phone

disclosed the incoming number, for which there was no response

from the deceased, when questioned as to whom the mobile

number belongs to, appears to be totally incorrect. According to

her, evidence on record show that screen display was not

functioning and as such, this version of the prosecution is

without any basis. She further submits that, even as per the

prosecution case, it was the deceased who poured petrol on

herself and expressed her intention to die if the suspicion on her

fidelity continues, to which the accused replied stating that if

she wants, she can die and accordingly lit a match stick and

threw at her. She further submits that, if really the intention of

the accused was to cause the death of the deceased, he would

not have made any effort to put off the flames on the body of the

deceased. She further submits that non-availability of the

accused in the house after the incident was due to the fact that

accused also sustained injures and went to hospital to get

himself treated for the burn injuries sustained by him.

5) The same is opposed by Sri. M. Dushyanth Reddy, learned

Additional Public Prosecutor contending that there is no

variation or inconsistency in the dying declarations recorded by

the authorities and in the oral dying declaration made before

PW1. He further submits that, in view of the judgment of this

court reported in 2020 (3) ALT (Crl) 203, dying declaration

which is reliable can be made the basis to convict the accused.

According to him, the conviction and sentence imposed by the

trial court warrants no interference.

6) The point that arises for consideration is, whether the

prosecution was able to bring home the guilt of the accused

beyond reasonable doubt?

7) As seen from the record, there are two dying declarations

recorded by PW11 and PW12, which are placed on record as

Ex.P9 and Ex.P16, respectively. Apart from these two dying

declarations, there is a oral dying declaration made by the

deceased before PW1 to PW3. It is also an undisputed fact that

the accused also sustained injuries and immediately thereafter

he got himself admitted in Government General Hospital,

Kakinada, where PW14, the Civil Assistant Surgeon, treated him

and issued Ex.P23 the wound certificate. Keeping the above

circumstances in the background and in order to appreciate the

rival contentions advanced, it would be just and proper to refer

to the evidence of the witnesses and the two dying declarations

recorded.

8) PW1 is none other than the mother of the deceased, who

visited the house of the deceased on the date of incident at 7.30

P.M. Before referring to the evidence of PW1, it would be

appropriate to refer to the evidence of PW4, who is the son of the

accused and deceased.

9) After understanding the mental capacity of the child and

his capability to give evidence, the court recorded his evidence.

PW4 in his evidence deposed that on the date of offence he went

to bed at 7.00 P.M. Sometime thereafter, he got up on hearing

cries and found his mother in flames. He also noticed his father

[accused] extinguishing the flames by covering the body with a

bontha. He also made an effort in putting off flames by

sprinkling water. Thereafter, he went to the house of PW1 and

informed about his mother being in flames. In the cross-

examination, he admits that he did not state before the police

that his mother informed to PW1 and PW3 that his father raised

a dispute with regard to missed calls in mobile phone and that

his mother poured petrol on her head by herself due to anger on

his father and that his father lit a match stick and threw it on

his mother. It was further elicited in the cross-examination of

this witness that, after informing the incident to PW1 and PW3,

PW1 did not come to see the deceased at their house, but she

went to the hospital. He also admits that he did not talk to his

mother after the flames were put off.

10) However, the evidence of PW1 to PW3 is otherwise.

According to them, at about 11.00 P.M. while PW1 was in her

house, PW4 came and informed about his mother in flames.

Immediately, thereafter, PW1 went to the house of PW5 and,

thereafter, along with others went to the house of the deceased

and found her body burnt. The accused was not there in the

house. When enquired, the deceased is stated as under:

"On my enquiry, she replied that her husband was suspecting her fidelity. She further stated, on that night when she received a phone call to her mobile, the accused suspected and questioned her as to who telephoned and that she replied, she did not receive any phone call. She further stated that the accused also suspected for having received phone calls also.

She further stated to keep the accused under threat, she poured petrol on her on the head. Meanwhile, the accused lit match stick and uttered to die, if she intends to do so (CHASTE CHAVU) and set fire to her body and left the scene. She further informed, when there was high flame, the accused covered her body with bontha and left the scene. She was found covered with towel and her clothes were burnt."

11) Having regard to the nature of the injuries sustained, PW1

shifted the deceased in 108 ambulance to Government General

Hospital, Kakinada, where the law was set into motion basing on

the statement of the deceased recorded by PW11. In the cross-

examination of PW1, it has been elicited that 'by the time they

went to the scene of offence the deceased was found in the

bedroom. She also admits that in the same house and at the

same time, the accused also sustained burn injuries and he was

admitted in Government General Hospital, Kakinada, by LW7

[not examined].' It would be useful to extract the relevant portion

of the evidence, which is as under:

"By the time we went to the scene, my daughter was found in bed room of the same house. The accused also sustained burn injuries on the same date of offence. He was also admitted in Government General Hospital, Kakinada, through LW7".

12) All the other suggestions given to this witness with regard

to innocence of the accused in the commission of offence was

denied by her. She also denied the suggestion that the statement

made by the deceased before the Police and the Magistrate was

tutored by her.

13) From the evidence of this witness, it is clear that the

deceased made a declaration before her stating that the accused

was suspecting her fidelity, and on that night she received a

phone call on her mobile phone and when questioned by her

husband as to the person who telephoned to her, she replied

stating that no telephone call was received by her. The deceased

further stated to her that, with a view to threaten the accused,

she poured petrol on her and the accused while uttering the

deceased to die if she intends to, lit and threw a match stick at

her. Thereafter, the accused himself covered her body with a

bonta and left the scene. From her evidence, it is evident that

the deceased on her own, poured petrol with a view to threaten

the accused and the accused stating that if she intends to die,

she can lit a match stick and set her on fire. Thereafter, the

accused made an effort to put off the flames by covering the

body of the deceased with a bontha and in the process he also

sustained burn injuries.

14) PW1 was recalled for further cross-examination pursuant

to the order of the court, wherein, she tried to go back on her

earlier version. However, we are not inclined to accept the said

version, for the reason that, she was won over and recalled for

further cross-examination, which version, in our view, cannot be

accepted as it is belated and a tutored one.

15) PW2 is the son of PW1 and brother of the deceased.

According to him, on the date of incident at 10.30 P.M. the

accused telephoned to PW1 through the phone of PW7 to inquire

as to whether he telephoned to the deceased, for which he

replied in negative. About half an hour thereafter, PW4 came to

their house and informed about the deceased being in flames

and the accused covering the deceased with a bontha then

leaving the scene. Thereafter, PW1 and her brother left the

house and later on PW2 also went to the house of the deceased.

In his presence and in the presence of PW3, PW1 enquired as to

what happened, to which the deceased replied stating that the

accused who is suspecting her fidelity used to beat her and was

also suspecting whenever a telephone call was received by her.

In order to avoid harassment and to threaten the accused, she is

said to have poured petrol on herself. At that time, the accused

is said to have uttered stating 'if you want, you can die'. So

saying lit a match stick, threw it at the deceased and left the

scene.

16) PW2 was cross-examined at length, but nothing useful

came to be elicited except stating that there were cordial

relationship between him and the accused. PW2 was also

recalled for further cross-examination pursuant to an order of

the court on 05.11.2012, wherein, he gave a different version to

what was stated in his chief-examination and accordingly, he

was treated hostile. But, we are not inclined to accept the later

version, as it is very much clear that he was won over and then

an application came to be made to recall him. In-fact, the

learned Sessions Judge ought not to have entertained such

belated application.

17) PW3 supports the version of PW2, but no application is

made to recall him. His version is in tune with the evidence of

PW1.

18) PW5 who is the mother of the accused, and PW6 who is a

resident of the same village, did not support the prosecution

case and were treated as hostile by the prosecution. Nothing

much turns out from the evidence of PW7 and PW8. PW9 is the

panch who conducted inquest over the dead body of the

deceased. In the cross-examination, he admits that they have

checked the mobile phone of the deceased and found the display

screen of M.O.7 was not working. PW11 to PW14 are the official

witnesses. This, in substance, is the evidence available on

record.

19) In order to appreciate the arguments advanced by either

side, it would be appropriate to first refer to the statement made

by the deceased before the Sub-Inspector of Police, which lead to

registration of the crime. The relevant portion of the English

translation version of Ex.P9, which is the statement of the

deceased recorded by PW11, is as under:

"About 10 years back, Guthula Sreenu, son of Guthula Satyanarayana, Seetibalija, Thimmapuram villager, who is residing near to our house and I loved each other and married. Guthula Sreenu is working as lorry driver. We are residing at Thimmapuram in the above said address. I am having two sons, one daughter. Son's name is Durga, 10 years; 2nd son's name is Sathamma, 4 years; our daughter's name is Malakshamma, 2 years. My husband and I are well; our family life is in smooth condition. My husband used to suspect me some times, thereupon disputing and beating, after some time meet together and live properly, he will attend duty for four days and at the house for one day".

On 28.04.2011 night at 11.00 P.M. my husband Sreenu came from duty, seen my call phone, asked me as to who has done the missed calls, then I replied that I have not talked with anybody, I do not know about the calls; thereupon, my husband beat me. With an intention to threaten him, poured about one litre petrol, which is available in the house, from the head; if so, die Lanja (bastard), so uttering lit a match stick and

thrown upon me, then the flames covered my attire body, then he covered the rug, which is there, on me and escaped from there; as I am raising cries with flames, my eldest son Durga went by running and brought my mother; along with my mother, my mother- in-law Guthula Suryakantham also came; in the meanwhile, my younger brother also came, made me to climb auto, took the Government Hospital. My face, all the body, two legs, hands brunt, as such I am getting treatment in the Government Hospital".

20) In this statement, the deceased categorically stated that

there was a quarrel between her and the accused on that night

when she refused to tell the person from whom she received the

missed call. Since the accused was suspecting her fidelity, she

with an intention to threaten him poured one litre of petrol on

her. The accused while uttering that, if she intends to die she

can, lit a match stick and threw it at her. On seeing the flames,

he covered the body of the deceased with a bontha and left the

place. This version of the deceased, which was recorded at the

earliest point of time in the hospital, is consistent with the oral

dying declaration, said to have been made by the deceased to

PW1 to PW3.

21) However, in the dying declaration recorded by the

Magistrate, there is a variation, wherein, the deceased did not

refer to the act of the accused in trying to put of flames on her

by covering her body with a bontha/blanket. It would be

appropriate to extract the relevant portion, which is as under:

"Night, after about 10.00 P.M. a dispute took place between me and my husband. While I am taking meals in the night, missed calls came to my cell phone; for that, my husband asked as who gave missed call; I replied that I do not know; for that, my husband uttered as "you are doing mad things", so uttering, beat me by suspecting. Later also abusing me. As I could not bear the words of my husband, I took petrol from my house and poured it on my body, with an intention to threaten uttered as "hereafter, if suspected me, will die". For that, my husband uttered as "die if you want to die, I will lit match stick" so uttering lit match stick and thrown; suddenly flames touched my body; later my mother brought me to here. For my position, my husband is responsible".

22) From the statements of the deceased, referred to above,

and the evidence of PW1 to PW3, the facts which stand

established are that the accused was present in the house at the

time of the incident [as he sustained injuries and was taken to

hospital by LW7]; lit a match stick and threw it at the deceased

saying 'if she intends to die, she can; and the accused was

suspecting the fidelity of the deceased as she did not inform the

name of the person from whom she was receiving the calls that

night.

23) The question now is, whether the accused can be convicted

for the offence punishable under Section 302 IPC or whether it can

be said that the accused had no intention to kill the deceased?

24) As stated above, from the evidence available on record, on

the fateful day, there was some dispute when the deceased failed

to disclose the name of the person from whom she received the

call. It may be true that the screen of the cell phone might not

have displayed the mobile number, but the dying declaration

clearly indicate that she received a missed call at an odd time.

The suspicion of the accused made him to enquire as to the

person who telephoned to her. In-fact, before questioning her,

the accused called PW7 and asked him to give the phone to PW3,

with whom he enquired as to whether he called the deceased.

When PW3 replied in negative, he questioned the deceased to

inform the person from whom she received the missed call.

Since, the accused was suspecting the fidelity, the deceased is

said to have poured petrol on herself so as to threaten the

accused, but having regard to the dispute which took place

earlier and which appears to be have been taking place

frequently, in a fit of anger the accused is said to have lit a

match stick and threw it at her stating, "if she intends to die she

can". At this stage, one important factor, which requires to be

noted is that on seeing the flames, the accused himself brought a

bontha, covered the deceased with the same and put off flames.

Thereafter, the son of the accused and the deceased sprinkled

water on the deceased. It is also stands established from the

evidence on record, that LW7 took the accused to the hospital

and got him admitted at Government General Hospital, having

regard to the burn injuries sustained by him. If really the

intention of the accused was to cause death, definitely, he would

have ran away from the house without making any effort to put

off flames. But he did not do so. He put of the flames and

thereafter ran away from the house. The reason why he ran away

could be either due to fear or to get himself treated for the

injuries sustained by him. Therefore, this conduct of the accused

in running away, in our view, cannot be made the basis to say

that he had a motive or intention to kill the deceased. The fact

that he has put off the flames by covering her with a bontha and

having regard to the cordial relationship between the accused

and the deceased except the quarrels now and then, which is

evident from the dying declaration of the deceased itself, makes

us hold that it is not a case of culpable homicide amounting to

murder. But it can be said that accused had knowledge of

causing bodily injury which is likely to cause death.

25) In Mohammed Jahangeer Vs. State of Andhra

Pradesh,1 this Court held as under:-

"In the instant case, the statement given by the deceased in her dying declaration reveals that the appellant was in a fully drunken stage on the night when the incident took place. She also stated that the appellant used to frequently come home in a fully drunken state and quarrel with her and beat her. However, she made one significant statement in her dying declaration, viz., that the appellant behaves friendly when he is not drunk and he quarrels and harasses her only when he is drunk. From this statement of the deceased, it could be deciphered that the appellant, who appears to be a good natured person in normal course, loses his

control if he is drunk and evidently, he may not be conscious of what he would be doing when he is drunk. The fact that he was fully drunk on the fateful night stood proved by the statement of the deceased made in her dying declaration. Though the appellant may not have had the intention of causing the death of the deceased, he would have had at least the knowledge of causing the bodily injuries which are likely to cause her death. In these facts and circumstances of the case, we are of the opinion that this is a fit case where the appellant is liable to be convicted for the offence punishable under Section 304 Part I I.P.C."

26) In view of the judgment referred to above and having

regard to the manner in which the incident in question took

place, we are of the opinion that the case of the

appellant/accused falls squarely under Section 304 Part-II of

IPC. Hence, the conviction under Section 302 IPC is set aside

and the appellant is convicted under Section 304 Part-II IPC and

sentenced him to undergo rigorous imprisonment for a period of

six years. The period undergone by the accused shall be given

set off under Section 428 Cr.P.C.

27) Accordingly, the appeal is allowed partly. Consequently,

miscellaneous petitions, if any, pending shall stand closed.

28) The accused could not be present before this court in