Dumpa Krishna, Khammam Dt Anr., vs State Of Ap., Rep. Pp. Hyd.,
2022 Latest Caselaw 6162 Tel

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

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.

2014(1) ALD (CRL.) 765 (AP)

AIR 2013 SC 3731

(2012) 8 SCC 289

1997 CRL.L.J 1861

(2022) 6 SCC 508

(2016) 3 SCC 62

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

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

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.

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-

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

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'.

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

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

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

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