Depangi Venkateswarlu, vs The State Of Ap Rep By Its Pp Hyd.,
2022 Latest Caselaw 915 Tel

 THE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA
                          AND
    THE HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI

                 CRIMINAL APPEAL No.710 of 2013

JUDGMENT:   (Per the Hon'ble the Chief Justice Satish Chandra Sharma)




1.

The present criminal appeal is arising out of Judgment

dated 07.08.2013 passed in Sessions Case No.86 of 2013 by

the court of the I Additional Sessions Judge, at Khammam,

convicting the appellant/A.1 for an offence under Section

302 IPC. The appellant/A.1 has been sentenced to undergo

life imprisonment and to pay a fine of Rs.500/- (Rupees five

hundred only) with a default clause to undergo simple

imprisonment for one month in case of non-payment of fine.

2. The facts of the case reveal that on the intervening

night of 21/22.02.2012, the deceased, who is the wife of

appellant/A.1, received burn injuries, she was admitted in

Government Hospital, Khammam for treatment and finally

she died on account of burn injuries on 23.02.2012. As per

the prosecution case, P.W.1, B.Nageshwar Rao lodged a

report at P.S., Mudigonda stating that his daughter's

marriage was performed about three years back. His son-in-

law (appellant/A.1) used to harass her daughter mentally

and physically. The factum of harassment was informed to

the brother-in-law of the deceased, i.e., A.2 and his wife,

Laxmi/A.3. However, the harassment continued and finally

the deceased left the house of her husband (appellant/A.1)

and came to the house of her parents at Kotapadu and

stayed there for three months. The appellant/A.1 along with

his brother, A.2 as well as one Venkata Ratnam came to the

house of B.Nageshwar Rao, the father of the deceased and

pleaded that the appellant/A.1 will keep his daughter

properly and on the assurance given by the husband and his

brother, P.W.1, father of the deceased sent his daughter back

to the house of in-laws at Venkatapuram. On the intervening

night of 21/22.02.2012, A.2, who is the brother of the

appellant/A.1, made a phone call to the father of the

deceased informing him that his daughter has received burn

injuries and she has been admitted in Government Hospital,

Khammam for treatment and the father of the deceased,

P.W.1, B.Nageshwar Rao on 22.02.2022 along with his wife,

P.W.2 started for hospital and again received a call from the

brother of the appellant/A.1 that his daughter is in serious

condition. When they reached the hospital, the brother of the

appellant/A.1, i.e., A.2 and his wife, A.3 were not there. In

fact, they fled away. In the hospital, the parents of the

deceased enquired about the incident and they were

informed by her daughter that her husband used to beat her,

abused her, suspected her character and on the intervening

night of 21/22.02.2012 poured kerosene upon her and lit

fire. On 22.02.2012, P.W.2, Saidulu, brother of the deceased,

came to the hospital and also enquired about the incident

and the deceased informed her brother that her husband,

after beating her, has poured kerosene over her and set her

ablaze. Unfortunately, the deceased expired in hospital on

23.02.2012 and a case was registered as Crime No.14 of

2012 under Sections 498-A and 302 IPC. The matter was

investigated and statements of witnesses were recorded. The

investigating officer visited the scene of crime and in the

presence of mediators/P.W.9 and P.W.17 has drawn the

rough sketch of scene of crime, seizure panchanama was

drawn, post mortem examination was carried out and finally

after investigating the entire matter, charge sheet was filed.

Charges were framed against the accused persons after

committal of the case for offences under Sections 498-A and

302 IPC and as many as 19 witnesses were examined and

the prosecution, to prove the case, filed documents, Exs.P.1

to P.18 and after closure of the prosecution evidence, the

accused persons were examined under Section 313 of the

Code of Criminal Procedure (CrPC) and they pleaded as not

guilty. The trial court after appreciating the evidence has

convicted only the appellant/A.1, who is the husband of the

deceased and the present Appeal is arising out of the

Judgment of conviction.

3. The trail court has meticulously examined the entire

evidence on record.

P.W.1, B.Nageshwar Rao is the father of the deceased.

P.W.2, B.Saidulu is the brother of the deceased, P.W.3,

T.Uppali is a relative of the deceased. The statement of P.W.1

establishes that the deceased was married three years prior

to the date of incident with the appellant/A.1 and

Rs.60,000/- was paid as dowry. For some time, the husband

and wife lived happily, however, later on the appellant/A.1

started harassing her for additional amount and also

suspected her chastity. The deceased while she was alive

informed about the harassment given to her by her husband

and she also used to inform the same to the brother of her

husband, A.2 and his wife, A.3. However, they did not take

any action in the matter to help her out. The father of the

deceased, P.W.1 further stated that the appellant/A.1 visited

their house during the festival and there also, he used to

harass his daughter and in those circumstances, the father

told the appellant/A.1 that he will not be sending his

daughter with him, however, on a promise given by the

appellant/A.1 that he will lookafter his daughter properly, he

permitted the daughter to go to the house of her husband.

He has also stated that on the intervening night of

21/22.02.2012, he received a phone call from A.2, brother of

the appellant/A.1 that his daughter's saree caught fire and

she was admitted in hospital. P.W.1 has also stated that he

went to the Government Hospital, Khammam and noticed

burn injuries over the entire body of his daughter and on

seeing P.W.1, A.2 and A.3, the brother of the appellant/A.1

and his wife/A.3 fled away from the hospital. P.W.1,

B.Nageshwar Rao, immediately called his son, P.W.2,

B.Saidulu to the hospital and the deceased while she was

alive informed her brother that her husband has poured

kerosene over her and lit the fire and thereafter, fled away.

The same story was told by the deceased while she was alive

to P.W.3, T.Uppali and even the statement of the deceased

was recorded in the cell phone by her brother, P.W.2 and

unfortunately, the deceased succumbed to the injuries.

A report was lodged with the police and the same is Ex.P.1.

P.W.2, B.Saidulu is the brother of the deceased, who

recorded the statement of his sister in a cell phone, which is

marked as M.O.1 and his sister while she was alive has

categorically told that his brother about the incident and the

act committed by her husband.

P.W.3, T.Uppali, is again an independent witness, who

came to the hospital along with P.W.2 and the statement

given by the deceased was in the presence of P.W.2, which

was also recorded in the cell phone.

P.W.4, D.Venkata Ratnam gave a statement before the

trial court that the appellant/A.1 used to harass the

deceased and he has reported the incident to the brother of

the appellant/A.1, i.e., A.2 and his wife/A.3. However, they

have not taken any action in the matter. He has not

supported the statement given by him to the police under

Section 161 CrPC (Ex.P.2.).

P.W.5, D.Babu, has also stated on the same lines of

P.W.4. However, he has again denied his statement given to

the police under Section 161 CrPC (Ex.P.3).

P.W.6, Shaik Safia, also has not supported the case of

the prosecution and has denied the statement given by her

under Section 161 CrPC (Ex.P.4.).

P.W.7, Koti Anantha Ramulu, was a witness who has

stated that the appellant/A.1 surrendered before him and

has confessed the offence and later on, he was handed over

to the police. He also did not support the case of the

prosecution and denied the statement given to the police

under Section 161 CrPC (Ex.P.5.).

P.W.8, B.Lalaiah, has stated that the appellant used to

harass the deceased. He has supported the prosecution case

and has stated that he went to the hospital, there the

statement of the deceased was recorded in cell phone by

P.W.2. P.W.8 has categorically stated that the deceased

informed, in his presence, that the appellant/A.1 poured

kerosene and lit the fire and fled away.

P.W.9, Krishnaiah, was present at the time the spot

map (Ex.P.6) was prepared in respect of scene of crime and

he has supported the prosecution case.

P.W.10, B.Israel, is the photographer, who took

photographs of the dead body of the deceased.

P.W.11, M.Venkaiah, also stated that he was informed

by the deceased that the appellant/A.1 has poured kerosene

over her and set her ablaze. He has supported the factum of

recording the dying declaration in the cell phone. He has

supported the case of prosecution.

P.W.12, Dr. K.Sandhya Rani, who was the duty Doctor,

has stated that the deceased while she was alive has stated

that the appellant/A.1 has poured kerosene and lit fire and

subsequently, she expired.

P.W.13, B.Venkateswarlu, is an ex-sarpanch. He has

stated in his evidence that the father of the deceased used to

come to his house and inform about the harassment given to

his daughter in the hands of the appellant/A.1. He has

called the appellant/A.1 to his house and the appellant/A.1

has promised him that he will lookafter the deceased

properly. He has also supported the prosecution case.

P.W.14, S.Nagamma, is the mediator present at the

time of inquest. She has supported the prosecution case.

P.W.15, Shaik Latheef, was examined to prove the

confession of the appellant/A.1 and at the instance of the

appellant/A.1, the kerosene tin was seized and he has

admitted his signatures on Exs.P.8 and P.9. He further

stated that he has signed the documents at the police

station.

P.W.16, Dr.B.Sreenivasa Rao, is the Doctor who

conducted post mortem examination. He has given an

opinion that the deceased died due to cardio respiratory

arrest and hypovolemic shock due to deep extensive burns.

P.W.17, A.Ramulu, is a panch witness for confession

and seizure. He has admitted his signatures, Exs.P.11 and

P.12 in confession and seizure panchanama.

P.W.18, P.Naresh Reddy, Inspector of Police is the

investigating officer and he has narrated the entire version of

the incidents, which took place right from the registration of

F.I.R., till filing of the charge sheet.

P.W.19, V.Venkata Uma Maheswaram, who conducted

inquest over the dead body of the deceased and seized

M.O.1, cell phone from P.W.2 under Ex.P.7, Inquest Report

and has categorically stated that the cell phone and Ex.P.7,

were handed over to the police.

The trial court, after appreciating the evidence of the

prosecution witnesses, P.Ws.1 to 19 and the documents

marked on behalf of prosecution, Ex.P.1 - Complaint, Ex.P.2

- Statement under Section 161 CrPC of P.W.4, Ex.P.3 -

Statement under Section 161 CrPC of P.W.5, Ex.P.4 -

Statement under Section 161 CrPC of P.W.6, Ex.P.5 -

Statement under Section 161 CrPC of P.W.7, Ex.P.6 - Crime

Detail Form (CDF), Ex.P.7 - Inquest Report, Ex.P.8 -

Signature of P.W.15 in confession and seizure panchanama,

Ex.P.9 - Signature of P.W.15 in confession and seizure

panchanama, Ex.P.10 - Post Mortem Examination Report,

Exs.P.11 and P.12 - Signatures of P.W.17 in confession and

seizure panchanama, Ex.P.13 - First Information Report;

Ex.P.14 - Portion of confession panchanama, Ex.P.15 -

Seizure panchanama, Ex.P.16 - FSL Report, Ex.P.17 - CD

and Ex.P.18 - Annexure - II, has held that the appellant/A.1

is guilty for the offence under Section 302 IPC and the two

other accused persons, i.e., A.2 - the brother of the

appellant/A.1 and A.3 - wife of A.2 have been acquitted.

4. This court has heard the learned counsel for the

appellant/A.1 and the learned Assistant Public Prosecutor

and also perused the record.

5. Learned counsel for the appellant/A.1 in the matter

has vehemently argued before this court that P.W.1 is the

father of the deceased, P.W.2 is the brother of the deceased

and P.W.3 is the relative of the deceased and they are

interested witnesses and therefore, the trial court has erred

in law and on facts in relying upon the testimony which has

resulted in conviction of the appellant/A.1.

Learned counsel for the appellant/A.1 has further

argued that P.W.1 is not at all an eye witness and his

statement is not trustworthy and therefore, conviction based

upon his statement deserves to be set aside. He has further

argued that P.Ws.2 and 3 are also not eye witnesses and

therefore, the conviction based upon their testimony

deserves to be set aside.

Learned counsel for the appellant/A.1 has vehemently

argued that P.Ws.4, 5, 6 and 7 are the material witnesses

and they have not at all supported the case of prosecution.

He has further argued that as per the prosecution case,

P.Ws.9 and 10 are the observer and photographer, P.W.11 is

the circumstantial witness, P.W.12 is the Doctor, P.W.13 is

an ex-sarpanch, P.W.14 is the Mediator, P.W.15 is the punch

for recording of confession and recovery of M.O.1, P.W.16 is

the Doctor and P.W.17 is said to be panch witness for

confession and seizure but he has only admitted his

signature and P.W.18 is the investigating officer and P.W.19

is the one who conducted inquest. He has stated that if the

evidence of the aforesaid persons is carefully perused, it is

established that the prosecution has failed to prove its case

beyond reasonable doubt and therefore, the conviction

imposed against the appellant/A.1 is liable to be set aside.

It has been further argued before this court that on the

same set of evidence, three persons were prosecuted by the

prosecution for offences under Sections 498-A and 302 IPC,

however, the trial court has acquitted all three persons for

offence under Section 498-A IPC, and has convicted only the

appellant/A.1 for offence under Section 302 IPC and

therefore, the trial court while acquitting two persons on the

same set of evidence, has erroneously convicted the

appellant/A.1 for offence under Section 302 IPC. It has also

been argued that once the appellant/A.1 has been acquitted

for an offence under Section 498-A IPC, the question of his

conviction under Section 302 IPC does not arise. It has also

been argued that the prosecution failed to adduce any

evidence to arrive at a conclusion that the appellant/A.1 is

guilty for the offence under Section 302 IPC and the trial

court has not at all considered evidence in its true

perspective. It has also been argued by the learned counsel

for the appellant/A.1 that the Judgment of the trial court is

based on mere surmises and conjectures and the trial court

has given its own reasoning for convicting the appellant/A.1

without therebeing any evidence on record.

6. Learned Assistant Public Prosecutor has argued before

this court that the evidence on record establishes the guilt of

the appellant/A.1 as the deceased has given a statement to

her father and to her brother as well as to another person

about the incident while she was in hospital. She died on

account of burn injuries and the evidence on record

establishes that it was the husband (appellant/A.1) who

poured kerosene upon her and lit fire, resulting in burn

injuries and finally she died on account of burn injuries

keeping in view the post mortem examination report.

7. This court has carefully gone through the entire

evidence on record and the statement of P.W.1, B.Nageshwar

Rao, who is the father of the deceased, P.W.2 - B.Saidulu,

who is the brother of the deceased, P.W.3 - T.Uppali, who

was also present in the hospital and in his presence, the

deceased has categorically stated about the incident. The

statement of the deceased was recorded in the cell phone of

P.W.2, which is marked as M.O.1. P.W.4 was examined to

prove that appellant/A.1 used to harass the deceased. He

has stated in his evidence that he has told the accused

persons not to harass the deceased and he has also scolded

them. He has also stated that the deceased left to her

parents' house earlier and resided there for five months and

on 21.02.2012, the appellant/A.1 has poured kerosene upon

the deceased and set her ablaze, resulting in her death.

P.W.4 is the paternal uncle of the appellant/A.1, however, he

has not supported the prosecution case and denied his

statement given to the police under Section 161 of CrPC, i.e.,

Ex.P.2. P.W.5, D.Babu, also has not supported the case of

the prosecution and denied the statement given to the police

under Section 161 of CrPC. P.W.6, Shaik Safia, was

examined in respect of the fact that she heard cries of the

deceased in the house and later on noticed the burn injuries,

however, she also did not support the prosecution version

and also denied her statement given to the Police under

Section 161 of CrPC. P.W.7, K.Anantha Ramulu, before

whom the appellant/A.1 has confessed the offence, however,

he did not support the case of the prosecution and denied

his statement given to the Police under Section 161 of

Cr.P.C., which is marked as Ex.P.5.

P.W.8, B.Lalaiah is the junior paternal uncle of the

deceased. He has supported the prosecution case. P.W.9,

B.Krishnaiah, V.R.O Mudigonda Village, was present at the

time of observation of scene of crime and drafting of CDF,

which is Ex.P.6 and seizure of M.O.2 from the scene of crime.

He has supported the prosecution case to that extent.

P.W.10, B.Israiel is the photographer, who got the

photos of the dead body of the deceased. However, the

photos were not marked as there were no negatives for digital

photos. The trial court has held that his evidence is of no

use. P.W.11, M.Venkaiah is the person who followed P.Ws.2

and 3 and he was present at the time of recording of

statement of the deceased in the cell phone of P.W.2. He has

supported the prosecution case to that extent.

P.W.12, Dr K.Sandhya Rani is the Doctor, who first saw

the deceased with burn injuries. She has supported the case

of the prosecution and she has categorically stated that she

was informed by the deceased while she was alive that her

husband has poured kerosene upon her and set her ablaze.

P.W.13, B.Venkateshwarlu is a witness who has stated

that he has scolded the accused when the accused used to

harass the deceased. He has supported the prosecution case.

P.W.14, S.Nagamma is stated to be the panch witness for

inquest report, which is marked as Ex.P.7 and she opined

that the deceased died as the appellant/A.1 caused burn

injuries to the deceased. She has signed the inquest report,

Ex.P.7. P.Ws.15 and 17 are the panch witnesses for

confession and seizure panchanama. However, they did not

support the prosecution case.

P.W.16, Dr B.Sreenivasa Rao is the Doctor who

conducted post mortem examination and he has

categorically stated that the deceased died due to cardio

respiratory arrest and hypovolemic shock due to deep

extensive burns. Ex.P.10 is the post mortem examination

certificate. He has supported the prosecution case. P.W.18,

P.Naresh Reddy is the investigating officer. He has supported

the prosecution case and he has also filed the documents

supporting the prosecution case.

8. Thus, in short, the entire record of the case reveals that

the present appellant/A.1 used to harass his wife and before

the date of the incident, the deceased was residing with her

father, P.W.1. It was only on the assurance given by her

husband (appellant/A.1) and his brother (A.2), the father

permitted the deceased to go and live with the appellant/A.1.

The father of the deceased immediately after receiving the

phone call on the intervening night of 21/22.02.2012 went to

Khammam hospital on 22.02.2012 as no conveyance was

available during the night of 21.02.2012, along with his wife

and the deceased told to her father that her husband

(appellant/A.1) was beating her for the last four days

suspecting her character and finally on 21.02.2012 during

the night, he poured kerosene upon her, lit the fire and fled

away from the house. On 22.02.2012, the brother of the

deceased and others went to the hospital and the deceased

categorically stated to her brother that her husband

(appellant/A.1) has poured kerosene upon her and set her

ablaze and finally the deceased died on 23.02.2012. P.W.3,

T.Uppali is another person who was present in the hospital

and in his presence, the brother of the deceased, P.W.2

recorded the statement of the deceased in his cell phone. He

has also stated that he heard the deceased telling everyone

present there in the hospital that her husband has

committed crime by pouring kerosene upon her and by

putting her ablaze. There appears no justification in

discarding the evidence of the father (P.W.1) and brother

(P.W.2) of the deceased and T.Uppali (P.W.3).

9. P.W.12, Dr. K.Sandhya Rani is the Doctor who

admitted the deceased in the hospital and made enquiry at

the time of admission and she was told by the deceased that

her husband (appellant/A.1) has poured kerosene upon her

and lit fire and the deceased subsequently died. The

statement of the Doctor has been supported by the

statement of another Doctor, P.W.16, Dr. B.Sreenivasa Rao,

who conducted post mortem examination on the dead body

of the deceased on the requisition on the Tahsildar,

Mudigonda and opined that the death is on account of deep

extensive burns. It has been vehemently argued before this

court that the statement, which has been recorded on the

cell phone cannot be treated as dying declaration. The

statement of the deceased recorded in the cell phone by

P.W.2 is marked as M.O.1. As per the investigation officer,

the cell phone was sent to FSL, Hyderabad and as per the

report received from the FSL, Hyderabad, the voice in the cell

phone is of a female and she has categorically stated that her

husband has poured kerosene upon her, putting her on fire

and fled away. As per Ex.P.16, there is a record of dying

declaration in mobile phone, however, the fact remains that

the FSL authorities were not examined before the trial court.

10. In the considered opinion of this court, even if the

evidence, which is available on mobile phone is discarded,

the evidence of the father (P.W.1), brother (P.W.2.) of the

deceased and an independent witness (P.W.3) and the

statements of two Doctors (P.Ws.12 and 16), who have also

categorically stated that the deceased died due to burn

injuries and that the appellant/A.1 has poured kerosene

upon the deceased, lit the fire and fled away cannot be

brushed aside. The present case is an open and shut case,

wherein the appellant/A.1 has poured kerosene upon the

deceased as reflected from the evidence on record and after

litting the fire, has fled away and letting her die and

therefore, based upon the evidence on record, the trial court

was certainly justified in convicting the appellant/A.1 for

offence under Section 302 IPC.

11. This court does not find any reason for disagreement

with the testimony of the witnesses or to discredit them.

Minor contradictions and omissions cannot be the basis for

acquitting the appellant/A.1 as prayed by the learned

counsel for the appellant/A.1. The trial court has adopted a

correct approach in appreciating the evidence and under

these circumstances, we have no hesitation in upholding the

judgment of the trial court in convicting the appellant/A.1.

The criminal appeal is accordingly dismissed.

Miscellaneous applications, pending if any, shall stand

dismissed. There shall be no order as to costs.

__________________________________ SATISH CHANDRA SHARMA, CJ

________________________________ ABHINAND KUMAR SHAVILI, J 25.02.2022 pln