Andhra Pradesh High Court - Amravati

Obulappagari Veerabhadrappa, ... vs The State Of Ap., Rep Pp., on 7 December, 2022

Bench: C.Praveen Kumar, B V Chakravarthi

                                   1



     THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR

                                  AND
     HON'BLE SRI JUSTICE B.V.L.N. CHAKRAVARTHI

               Criminal Appeal No. 567 of 2016

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

1)    Heard Sri. G. Vijaya Saradhi, learned Legal-Aid Counsel

appearing for the Appellant/Accused and Sri. Soora Venkata

Sainath,    learned     Special    Assistant    Additional   Public

Prosecutor, appearing for the State.


2)    The Sole Accused in Sessions Case No. 409 of 2012 on

the file of the Additional Sessions Judge, Hindupur, is the

Appellant herein. He was tried for the offences punishable

under Sections 498A and 302 of Indian Penal Code ['I.P.C.'].

By its Judgment, dated 05.02.2016, the learned Sessions

Judge, convicted the accused on both the counts and

sentenced him to suffer rigorous imprisonment for life for the

offence punishable under Section 302 of I.P.C. and to pay fine

of Rs.10,000/- in default to undergo simple imprisonment for

two years. The accused was also found guilty of the offence

punishable under Section 498A of I.P.C. and sentenced to

undergo simple imprisonment for a period of three years and
                                  2



to pay fine of Rs.2,000/- in default to undergo simple

imprisonment for two months. The substantive sentences

were directed to run concurrently.


3)      The facts, as disclosed by the prosecution witnesses, are

as under:


(i)     The accused is the husband of the deceased. PW1 is the

        brother of the deceased, while PW2 is the sister of PW1.

        PW7 is the daughter of the accused and the deceased.

        All   other   material   witnesses   are   residents   of

        Chettenadupu Village.


(ii)    The marriage of the deceased with the accused took

        place about 20 years prior to the incident and since

        then both of them were living in the village. The accused

        and the deceased were blessed with three [03] children.

        It is said that, the accused was always quarrelling with

        the deceased, as he was suspecting her fidelity.


(iii)   On 02.03.2012 at about 7.00 P.M., the accused came

        home in a drunken state and picked up a quarrel with

        the deceased. In the said quarrel, the accused is said to

        have beat the deceased. The contents of the dying
                                 3



       declaration show that, the accused poured kerosene and

       set his wife on flames. On hearing the cries of the

       deceased and as the flames were coming out of the

       house, PW1, PW2, PW10 and others rushed towards the

       house. They noticed accused opening the door and

       running away, in-spite of they being questioned as to

       the reason for the incident. Immediately, 108 ambulance

       was called and the injured was taken in the said

       ambulance to Government Hospital, Madakasira.


(iv)   PW5, who is working as Civil Assistant Surgeon,

       Community Health Centre, Madakasira, examined the

       patient and sent intimation, vide Ex.P1, to the Police.

       On receipt of the said intimation, the Assistant Sub-

       Inspector of Police [PW11] proceeded to the hospital and

       recorded the statement of the injured. He obtained the

       endorsement of the doctor on the said statement and

       after completing the statement, obtained the left thumb

       impression of the injured. He sent the report to

       Amarapuram Police Station, for registering the case.

       Basing on the statement, PW12 [Head Constable]

       registered a case in Crime No. 9 of 2012 for the offences
                                     4



       punishable under Section 498-A and 307 I.P.C. He then

       proceeded to Chitnadugu Village and recorded the

       statement of PW1 to PW5. At the scene of offence, he

       observed one kerosene stove, burnt pieces of blouse etc.

       A panchanama to that affect came to be prepared, which

       is marked as Ex.P5. He also got prepared a rough sketch

       of the scene, which is marked as Ex.P9.


(v)    On the advice of the doctor at Government Hospital,

       Madakasira, the injured [deceased] was shifted to

       Government Hospital, Hindupur, and from there to

       Bangalore. In an hospital at Bangalore, the injured was

       treated   for    10   days       and,   thereafter,   shifted   to

       Government Hospital, Tumkur, were she died after two

       days.


(vi)   On 16.03.2012 at about 3.00 P.M., while PW14 [Sub-

       Inspector of Police] was in Police Station, received death

       intimation from District Hospital, Tumkur, about the

       death of the injured. Basing on the same, he altered the

       Section of law to 498A and 302 I.P.C. issued Ex.P12 the

       altered F.I.R.
                                     5



(vii)   PW15 [the Inspector of Police], who was investigating the

        case, received the altered F.I.R. and proceeded towards

        Tumkur District Headquarters Hospital. At the Tumkur

        Hospital, he conducted inquest over the dead body in

        the presence of PW8. Ex.P6 is the inquest report. At the

        time of inquest, he examined PW1 to PW6 and recorded

        the   statements.     After      completing        the   inquest

        proceedings,   the   body       was   sent   for   post=mortem

        examination.


(viii) PW13, the Resident Medical Officer at Tumkur District

        Hospital, conducted post-mortem examination over the

        dead body on 16.03.2012 and issued Ex.P10 - the post-

        mortem certificate. According to him, the death was due

        to septicaemia as a result of burn injuries.


(ix)    PW15 [the Inspector of Police], who continued with the

        investigation, arrested the accused on 19.04.2012 and

        after completing the investigation, filed a charge-sheet,

        which was taken on filed as P.R.C. No. 10 of 2012 on

        the file of Judicial Magistrate of First Class, Madakasira.
                                  6



4)   On appearance of the accused, 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 same was

committed to Court of Sessions 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, the accused pleaded not guilty and

claimed to be tried.


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

PW15 and got marked Ex.P1 to Ex.P13, beside marking M.O.1

to M.O.3. 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, did not adduce any defence

evidence.


6)   Relying upon the evidence of the eye witnesses, coupled

with the dying declarations, the learned Sessions Judge

convicted the accused. Challenging the said conviction and

sentence imposed, the present appeal came to be filed.
                                 7



7)     (i) Sri. G. Vijaya Saradhi, learned Legal-Aid Counsel

appearing for the Appellant/Accused, mainly submits that,

though the prosecution projected PW1 and PW2 as eye

witnesses to the incident, but the answers elicited in the

cross-examination would clearly show that they have not seen

the incident in question and that they came into the house of

the accused after the incident is over.


(ii)   Coming to dying declarations recorded by the Sub-

Inspector of Police and the learned Magistrate, he would

contend that, the same cannot be relied upon, having regard

to the evidence of PW1 and PW2.


8)     (i) Sri. Soora Venkata Sainath, learned Special Assistant

Additional Public Prosecutor, appearing for the State, opposed

the same contending that, when there are more than one

dying declaration, the one recorded by the Magistrate can be

taken into consideration to connect the accused with the

crime. He further submits that, in the absence of any

evidence to show that there was any quarrel prior to the

incident, the question of scaling down the offence also does

not arise. Apart from that, the learned Additional Public
                                8



Prosecutor would contend that the evidence of PW1 and PW2

amply corroborates the contents of dying declarations and, as

such, there is enough material on record to show that it was

the accused, who was responsible for the incident. In view of

the above, he would submit that the conviction and sentence

imposed requires no interference.


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

prosecution was able to bring home the guilt of the Accused

beyond doubt?


10)   PW1 is none other than the brother of the deceased. He

in his evidence deposed that, on 02.03.2012, himself, his

sister [PW2] and others were at his house at about 6.30 P.M.

Their house is opposite to the house of the accused and

deceased. It is said that, the accused in a drunken state, went

inside the house and after sometime, they heard cries of the

deceased. PW1 along with others went inside the house and

noticed the accused pouring kerosene and setting the

deceased on fire. PW1 and PW2 stopped the flames with the

help of bed-sheet and, thereafter, called 108 ambulance to

shift the deceased to the hospital. Initially, the deceased was
                                       9



shifted to Government Hospital, Madakasira, and on the

advice      of   the   doctors   at   hospital,   she   was   taken to

Government Hospital, Hindupur, and from there to Bangalore

and then to Tumkur, where she died.


11)   In the cross-examination, PW1 admits that, after the

accused poured kerosene and set the fire the deceased and on

hearing the cries, they went inside. It was further elicited

that, PW1 has not seen the accused pouring kerosene and

setting the deceased on fire. It was further elicited that, the

accused received burns when he was putting off flames.


12)   From the answers elicited, it is clear that, PW1 has not

seen the accused pouring kerosene and setting the deceased

on fire. But, one fact, which was elicited is about the accused

receiving burn injuries while putting off flames. Taking

advantage of the same, the learned Counsel for the Appellant

tried to contend that, the deceased committed suicide and

when the accused tried to put off flames, he sustained

injuries.
                                10



13)   PW2 is the sister of PW1. Her evidence also toes in line

with the evidence of PW1 in all material aspects. She also

claims to have seen the accused setting fire the deceased and,

thereafter, putting off the flames with the bed-sheet. She also

speaks about the presence of the accused at the time of

incident. In the cross-examination, it was elicited that, they

were not in the house of the deceased at that time of incident.

It was elicited that, only after the deceased received burns,

the accused also received burns. It was further elicited that,

by the time they entered the house, the deceased was already

in flames. Therefore, the answers elicited from PW2 also

stands establish that she along with PW1 entered the house

after the deceased was set on fire, and the evidence of this

witness also establish that the accused also received burn

injuries after the deceased received burn injuries.


14)   PW3 is the Son of the accused and the deceased. He in

his evidence deposed that, on 02.03.2012 at about 5.00 P.M.,

he had been to Amarapuram Shandy and returned home at

about 7.30 P.M. At that time, 108 ambulance came, in which

his mother was taken to hospital. He claims to have

accompanied    her   to   Government    Hospital,     Madakasira.
                                 11



According to him, while his mother was narrating the incident

to the police, he has overheard about the incident. According

to him, she stated to the police that accused poured kerosene

and set her on fire. He was cross-examined at length. To a

suggestion that, the deceased was not in a position to speak,

was denied. To a suggestion that PW1 tutored the deceased to

speak against the accused was also denied. The suggestion

that the deceased sustained burn injuries accidentally from

kerosene stove was also denied.


15)   PW4, who is a neighbour, in his evidence deposed that,

on 02.03.2012 at about 7.00 P.M., after taking dinner, when

he came out, saw flames in the house of accused and PW1

and PW2 were putting off flames. In the cross-examination, it

was elicited that, the accused did not sustain burn injuries.

This, in substance, is the oral evidence adduced by the

prosecution.


16)   From     the   evidence   of   the   witnesses,   it   stands

established beyond doubt that the accused was present in the

house at the time of incident and he also sustained burn

injuries. Further, PW4 in his cross-examination admits that,
                                  12



the accused did not receive any burn injuries, while the

evidence of PW1 to PW3 is to the affect that the accused also

received burn injuries, which gets fortify by the evidence of

the Inspector [PW15], who in his evidence states that, on

19.04.2012

he arrested the accused and sent for medical

examination. The Wound Certificate issued in favour of the

accused was marked as Ex.P13. Therefore, the fact that

accused was present in the house and he sustaining burn

injuries stands established.

17) The question now is, whether the accused was

responsible for setting the deceased on fire?

18) It would be appropriate to refer to the two dying

declarations recorded by PW11 and PW6. PW11 - is the Sub-

Inspector of Police, who on receipt of intimation from

Government Hospital, Madakasira, proceeded to the said

hospital and after obtaining a certificate from the Doctor, the

injured was conscious and coherent, recorded the statement

of the injured, which is marked as Ex.P7. PW11 was cross-

examined at length, but nothing useful came to be elicited to

discredit his testimony.

19) A reading of Ex.P7 inter alia discloses that, on

02.03.2012 the accused started abusing the injured

[deceased] alleging that she developed illegal intimacy with

others and on same day at about 7.00 P.M., while she was in

house, her husband [accused] came and quarrelled with her,

took the kerosene stove kept in the house, removed the cap of

the stove, poured kerosene and set her on fire. She raised

cries, which attracted the attention of PW1 and PW2, who

were residing in-front of her house. According to her, all of

them put off the flames by covering bed-sheet and, thereafter,

shifted her to Government Hospital, Madakasira, in 108

ambulance.

20) A perusal of the said statement [Ex.P7] would show that

only after obtaining certificate from the doctor with regard to

the mental state of the deceased, the Sub-Inspector of Police

recorded the statement. In the evidence-in-chief, the doctor

[PW5] categorically stated that the injured [deceased], by

name, Mallamma, was admitted in the hospital. During the

recording of the statement by A.S.I., the patient was

conscious and PW5 endorsed the same on the said statement

recorded by the A.S.I. Ex.P2 is the said endorsement.

Therefore, the argument of Sri. G. Vijaya Saradhi, learned

Legal-Aid Counsel appearing for the Appellant/Accused that

no credence can be given to the statement recorded by A.S.I.

cannot be accepted.

21) Similarly, PW6 who was then working as Judicial

Magistrate of Madakasira, on receipt of intimation, proceeded

to the hospital and recorded the statement of the injured.

Initially, the statement was made by the deceased in

Kannada, which was translated into Telugu and, thereafter,

the same was recorded. But, one fact, which is to be noted

here is that both the witnesses say that the deceased knew

both Kannada and Telugu and probably for that reason, the

A.S.I. has recorded the statement of the deceased in Telugu

and the Magistrate in Kannada, which was translated into the

Telugu by PW5 and, thereafter, it was reduced into writing.

After completing the statement, the same was read over to the

injured, who affixed her left thumb impression on it.

22) A reading of the said statement would clearly show that,

it toes in line what she has stated before the A.S.I. No

circumstance is brought to our notice, to disbelieve the dying

declaration. Even assuming for the sake of argument that the

dying declaration recorded by A.S.I. is not accepted, for the

reason that he recorded in Telugu, while the evidence on

record show that the deceased made the statement in

Kannada, when it was recorded by the Magistrate, but, the

dying declaration recorded by the Magistrate, in our view, can

be relied upon and there are no reasons to doubt its veracity

or its truthfulness.

23) At this stage, Sri. G. Vijaya Saradhi, learned Legal-Aid

Counsel, would contend that, before recording the statement

of the injured [deceased] by A.S.I. and also by the Magistrate,

family members were present near the deceased. But, it is to

be noted here that, it is not the case of the accused that,

these people tutored the deceased, to make a false statement.

In-fact, no suggestion, to that affect, was given to the

witnesses. Hence, the argument that these two dying

declarations are the outcome of tutoring cannot be believed.

24) In Raju Devade v. State of Maharashtra1 the Apex

Court held as under:

"Each dying declaration has to be considered independently on its own merit so as to appreciate its evidentiary value and one cannot be rejected because of the contents of the other. In cases where there is more than one dying declaration, it is the duty of the court to consider each one of them in its correct perspective and satisfy itself that which one of them reflects the true state of affairs."

25) When a dying declaration is recorded in accordance with

law, which gives a cogent and plausible explanation of the

occurrence, the Court can rely upon it as a solitary piece of

evidence to convict the accused. It is for this reason Section

32 of the Evidence Act, 1872 is said to be an exception to the

general rule against the admissibility of hearsay evidence and

its Clause (1) makes the statement of the deceased

admissible. Such statement, classified as a "dying

declaration" is made by a person as to the cause of his death

or as to the injuries which culminated to his death or the

circumstances under which injuries were inflicted. A dying

declaration is thus admitted in evidence on the premise that

the anticipation of proving death breeds the same human

AIR 2016 SC 3209

feelings as that of a conscientious and guiltless person under

oath. It is a statement comprising of last words of a person

before his death which are presumed to be truthful, and not

infected by any motive or malice. The dying declaration is

therefore admissible in evidence on the principle of necessity

as there is very little hope of survival of the maker, and if

found reliable, it can certainly form the basis for conviction.

[Jayamma and Another V. State of Karnataka2].

26) Sri. G. Vijaya Saradhi, learned Legal-Aid Counsel,

mainly submits that the deceased committed suicide by

setting herself on fire and in that process, the accused while

trying to put off flames sustained burn injuries. It is to be

noted here that, the evidence of the doctor show that the hair

of the deceased was not burnt. In normal circumstances, if a

person intends to commit suicide, he will pour kerosene from

the top of head and set himself on fire, and only in case where

a person is burnt to death by pouring kerosene or any other

substance, it will be poured either on the face or on the body

of the deceased, unless the deceased-injured was sleeping.

Therefore, since, the hair of the deceased was not burnt at all

(2021) 6 Supreme Court Cases 213

and the burn injuries were mostly on the chest and lower

limbs, the argument that it was a case of suicide, cannot be

accepted.

27) Sri. G. Vijaya Saradhi, learned Legal-Aid Counsel,

further submits that, since, the death was due to septicaemia

as a result of burn injuries, the nature of offence to scaled

down, more so, when no proper treatment was given. He

further contends that, in view of the Judgment of the Hon'ble

Supreme Court in Kalu Ram V. State of Rajasthan3, the

nature of offence may be scaled down to Section 304 Part II.

According to him, even in the said case, the accused in a

highly inebriated condition approached the deceased and

demanded ornaments. When she refused, he got infuriated,

poured kerosene and wanted her to die and gave a matchbox.

When she failed to do so, he took the matchbox and set her

on fire. But on finding the flames flaring up, he poured water

to save her. Having regard to the above and more particularly

the intention of the accused was only to inflict burns to her

and to frighten her, the situation went out of control and it

went to the fatal extent, as such, the Hon'ble Supreme Court

(2000) 10 Supreme Court Cases 324

altered the conviction from Section 302, I.P.C. to Section 304,

Part II of the I.P.C.

28) In the instant case, though the two dying declarations

speak only about the accused pouring kerosene and setting

her on fire, but, the evidence of PW1 and PW2, who are none

other than the brother and sister of the deceased,

categorically speaks about the accused receiving burn injuries

when he was putting off flames, coupled with the fact that the

evidence of the Investigating Officer, who speaks about

sending the accused to the hospital for treatment after the

arrest vis-a-vis Ex.P13 - Wound Certificate issued by the

Doctor. Hence, we feel that the accused may not be having

the intention to cause the death of the deceased. If really his

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

not have made any effort to put off the flames and sustain

burn injuries for himself.

29) A perusal of the Wound Certificate [Ex.P13] issued by

Andhra Pradesh Viadya Vidhana Parishad, show that the

accused though sustained simple injuries, but they were on

both forearms, which establish that the accused made some

effort to put off the flames and in the process sustained burn

injuries. Further, the evidence of the doctor also correlates to

the date and time of the incident.

30) Having regard to the above, it cannot be said that, the

accused had an intention to cause the death of the deceased.

If really his intention was to cause death, definitely, he would

not have made an effort to put off the flames, more so, only

when both of them were in the house.

31) In Mohammed Jahangeer Vs. State of Andhra

Pradesh,4 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

Appeal No.932 of 2010 dt. 29-03-2016

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."

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

regard to the manner in which the incident in question took

place and the injured succumbing to the incident 45 days

after the incident due to septicaemia, we are of the opinion

that the conviction of the Appellant/Accused has to be scaled

down to one under Section 304 Part-II of I.P.C. Hence, the

conviction under Section 302 IPC is set-aside and the

Appellant/Accused is convicted under Section 304 Part-I IPC

and sentenced to undergo rigorous imprisonment for a period

of seven years. However, the conviction under Section 498A

I.P.C., and the sentence for the said offence is sustained. The

period of sentence undergone by the Appellant/Accused as