HON'BLE SRI JUSTICE G. CHANDRAIAH AND HON'BLE SRI JUSTICE M.S.K.JAISWAL Criminal Appeal No. 564 of 2010 Dated. 30.12.2014 Between:
Boya Narayanappa Vs.
The State of Andhra Pradesh, Represented by Public Prosecutor, High Court, Hyderabad.
… Appellant/Accused … Respondent HON'BLE SRI JUSTICE G. CHANDRAIAH AND HON'BLE SRI JUSTICE M.S.K.JAISWAL Criminal Appeal No. 564 of 2010 JUDGMENT: (Per Hon’ble Sri Justice G. Chandraiah) This criminal appeal is preferred by the Appellant/Accused aggrieved by the judgment and conviction ordered in S.C.No. 145 of 2009, dt.09.12.2009 by the learned Additional Sessions Judge, Hindupur. By virtue of the impugned judgment, the appellant was found guilty for the offence under Section 302 IPC, convicted and sentenced to undergo imprisonment for life, and to pay a fine of Rs.100/-.
2. The case of the prosecution is that the deceased Boya Lakshmidevamma is the wife of late B. Narayanappa and mother of PWs.1 to 3. After the death of her husband, she developed illegal intimacy with the accused, who became paramour of the deceased. The deceased was doing vegetable business and maintaining her family, including the accused. The accused used to harass the deceased demanding money for his bad vices. Further, on 22.05.2008 at about 4.00 p.m., the accused came to the house of the deceased and demanded money to have alcohol. The deceased told him that she has no money, upon which the accused grew wild and openly challenged the deceased stating as to who will rescue her from his hands, if he kills her. By saying so, the accused took plastic kerosene tin, poured kerosene on the deceased and set her on fire with a match stick, as a result of which, the deceased sustained burn injuries. On hearing the cries of the injured/deceased, PWs.4 to 6 along with one Talari Reddappa came there, tried to rescue the deceased by pouring water, and the accused also tried to put off the flames. However, after the incident, the accused ran away from the place; PWs.4 and 5 shifted the injured to Government hospital, Penukonda, and from there she was shifted to Government hospital, Hindupur, where PW.19 – S.Gangulappa, Head Constable, Hindupur recorded the statement of the injured (Ex.P.21) in the presence of the duty doctor. On intimation, PW.16–Judicial First Class Magistrate, Hindupur recorded the dying declaration of the deceased (Ex.P.17) in the presence of the duty doctor. Later, the injured Lakshmidevamma succumbed to the burn injuries, while undergoing treatment. Initially, the case was registered for the offence punishable under Section.307 IPC, and after receipt of the death intimation (Ex.P.20), the Sub-Inspector of Police, Roddam (PW.20) altered the Section of law from 307 to 302 IPC, and issued Express FIR to all concerned. The Inspector of Police (PW.21) took up further investigation, arrested the accused, who confessed about his involvement in the incident, and filed charge sheet against the accused after completion of the investigation.
3. The learned Judicial First Class Magistrate, Penukonda has taken cognizance against the accused in PRC No.59 of 2008 for the offence under Section 302 IPC, and committed the case to the Court of Sessions Division, Anantapur, as the offence is exclusively triable by the Court of Sessions, and the learned District & Sessions Judge, Anantapur, having assigned S.C.No.145 of 2009, made over the case to the Additional Sessions Judge, Hindupur for disposal in accordance with law.
4. On appearance of the accused, after hearing the learned Additional Public Prosecutor and the defence counsel, the trial Court framed a charge against the accused for the offence punishable under Section 302 IPC against the accused, and on its denial by the accused, conducted trial. In order to prove its case, the prosecution has examined PWs.1 to 21, marked Exs.P.1 to P.30 and M.Os.1 to 6.
5. PW.1 – Boya Muthu, PW.2 – Boya Barathi and PW.3 – Boya Aruna are the daughters of the deceased, to whom the deceased said to have made oral declaration with regard to the cause of burn injuries to her. PW.4 – Boya Neelampalli Ramesh, PW.5 – Boya Hanumanthu, PW.6 – Boya Gujjala Papamma, PW.7 – D.Ramanujappa and PW.8 – Boya Venkaas Laxmamma are said to speak about the incident. PW.9 – Talari Boya Aswarthappa, PW.10 –Boya Rajeswari and PW.17 – Boya Ramesh are said to have acted as mediators for the inquest on the person of the deceased. PW.14 – S. Sadiq Ali and PW.18 – Neeruganti Basappa are said to have acted as mediators for the observation of scene of offence and also for seizure of the material objects. PWs.11 and 15 are said to speak about the arrest and confession of the accused in their presence.
PW.12 – Dr. Thyagaraju is said to have treated the accused and issued wound certificate (Ex.P.12); and PW.13 – Dr.G.V.Bhaskar Reddy is the doctor, who conducted post-mortem examination of the deceased. PW.16 – S.Ramanaiah, the then Judicial First Class Magistrate, Hindupur has recorded the dying declaration (Ex.P.17) of the deceased. PW.19 – S.Gangulappa, Head Constable is said to have recorded the complaint-statement of the injured (Ex.P.21). PW.20 – M.Ganganna, Sub-Inspector of Police, registered the case and issued FIR. PW.21 – Kolar Krishna, Inspector of Police conducted investigation, arrested the accused and filed charge sheet.
Exs.P.1 to P.8 are the statements of PWs.1 to 8 respectively, under Section 162 Cr.P.C.; Exs.P.9, P.10 and P.18 are the signatures of PWs.9, 10 and 17 respectively on inquest panchanama. Exs.P.11 and P.15 are the signatures of PW.11 and P.W15 on arrest mahazarnama. Ex.P.12 is the wound certificate of the accused issued by PW.12; and Ex.P.13 is the post mortem certificate issued by PW.13. Ex.P.17 is the dying declaration of the deceased recorded by PW.16. Ex.P.21 is the complaint-statement of the injured Lakshmidevamma, recorded by PW.19, Head Constable in the presence of the duty doctor.
6. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C., explaining the incriminating material against him in the evidence of prosecution witness. The accused denied the same and stated that he was no way connected with the death of the deceased and the police foisted this false case against him. However, no defence witnesses were examined and no exhibits were marked on behalf of the accused.
7. After hearing both sides, and considering the material available on record, the trial Court found the accused guilty for the offence under Section 302, convicted and sentenced him to undergo imprisonment for life and pay a fine of Rs.100/-. Aggrieved by the same, the present appeal is preferred by the accused.
8. The learned counsel appearing for the accused submits that the trial Court ought not to have found the accused guilty for the offence under Section 302 IPC and sentence him for life imprisonment. He further submits that all the material witnesses i.e., PWs.1 to 10, 11, 14, 15, 17 and 18 turned hostile and did not support the case of the prosecution, and the remaining witnesses are official witnesses. The learned counsel further submits that the trial Court solely based on the dying declarations, recorded by PWs.16 and 19 for convicting the accused, which is not correct. He further submits that at the time of the incident, the accused was in drunken condition, and admittedly he too tried to rescue the injured by pouring water on the flames, which clearly establishes that the accused has not made any attempt to kill the deceased, or has no intention to kill the deceased. Hence, the learned counsel submits that the trial Court ought to have acquitted the accused instead of convicting him, and prayed for acquittal of the accused by setting aside the impugned judgment under appeal.
9. On the other hand, the learned Public Prosecutor submits that as many as 21 witnesses were examined on behalf of the prosecution, and though some witnesses have turned hostile, the material witnesses, namely, the Duty Doctors PWs.12 and 13, PW.16 – Judicial First Class Magistrate, who recorded the dying declaration of the deceased, PW.19 – Head Constable, who recorded the complaint-statement of the deceased, and PWs. 20 and 21, Investigating Officers, have supported the case of the prosecution, deposed about the occurrence of the incident, and their evidence is corroborated with each other and supported by the medical evidence. Therefore, the learned Public Prosecutor submits that there is ample evidence available to the prosecution, which is sufficient to prove the guilt of the accused, and thus the prosecution has substantially proved its case and the guilt of the accused beyond reasonable doubt. Hence, the trial Court on considering the entire evidence on record rightly found the accused guilty and convicted him accordingly. Therefore, the learned Public Prosecutor submits that it is not a fit case for interference by this Court and submits that the appeal may be dismissed.
10. In view of the above rival submissions, the points that arise for consideration are, firstly, whether the prosecution has proved its case beyond reasonable doubt; and secondly whether the trial Court is right in imposing the punishment of life imprisonment on the accused.
11. We have perused the impugned judgment and considered the entire material available on record. The learned counsel for the appellant/accused does not dispute the factual position and the evidence on record. Admittedly, in this case all the material witnesses have turned hostile and did not support the case of the prosecution. However, PW.12, the doctor who treated the accused, deposed that he examined the accused and found three burn injuries over his face, left forearm, and the palm of both hands and right wrist, which are superficial and issued Ex.P.12 wound certificate. PW.13, the doctor, who conducted post mortem examination of the deceased, deposed that he conducted post mortem examination on 23.05.2008 on the person of the deceased – Boya Lakshmidevamma, and found extensive burns all over the body, except soles, which are superficial to deep, apart from some internal injuries, like congestion of lungs and brain, and some blood in the heart. PW.20, the Sub-Inspector of Police, deposed about the receipt of Ex.P.21 statement of the injured Lakshmidevamma, on the basis of which he registered a case in Crime No.23 of 2008 under Section 307 IPC and sent Ex.P.22 – FIR to all the concerned and took up investigation. He further deposed that on the same day, he received Ex.P.23 death intimation of the injured and therefore he altered section of law from 307 to 302 IPC and issued altered FIR Ex.P.24 to all the concerned. PW.21, Inspector of Police deposed that on 23.05.2008 he took up the investigation, verified the investigation part done by PW.20, examined PWs.1 to 8, recorded their statements, held inquest, sent the dead body of the deceased to Post-mortem, visited the scene of offence, and prepared Ex.P.26 rough sketch map. Further, on 19.06.2008 he arrested the accused, who confessed for having involved in the incident, and sent the material objects to Laboratory under Ex.P.29, and after receipt of Ex.P.30 RFSL report, and completion of the investigation laid the charge sheet.
12. Apart from the above witnesses, the other important witnesses are PW.16, Judicial First Class Magistrate, who recorded the dying declaration of the deceased; and PW.19, Head Constable, who recorded the complaint-statement of the injured/deceased, in the presence of the duty doctor. PW.16, the then Judicial First Class Magistrate, Hindupur, deposed that on 22.05.2008 at about 8.40 p.m. he received Ex.P.16 MLC intimation from the Government Hospital, Hindupur to record the statement of injured Lakshmidevamma. Immediately, he rushed to the Hospital and found the injured undergoing treatment. In the presence of the duty doctor, he put simple questions to ascertain the state of mind of the injured for which she gave proper answers, and later recorded her dying declaration (Ex.P.17), which is as under:
“One Narayanappa (accused) is her paramour and he used to come to the house in drunken condition and demanding her to give money. For that she refused to give money as demanded by Narayanna (accused). Therefore, Narayanappa (accused) beat her. There was kerosene oil in her house and the said Narayanappa (accused) poured kerosene on her and lit fire with beedi who was smoking by then. On that Lakshmidevamma ablazed and ran out from the house. Then, the neighbours, PW4 and some others came there, covered blanket on her to put off flames. The accused also sustained burn injuries to his hands, when he came there and pull her. The accused went from there, PW4 and PW5 brought her to the Government Hospital, Penukonda and from there she was shifted to the Government Hospital, Hindupur.
PW-16 further deposed that he read over the contents of Ex.P.17 statement to the injured, she admitted the same to be true and correct, and hence he obtained her LTM on Ex.P.17. The duty doctor also endorsed on Ex.P.17 statement that the patient was conscious and coherent while she was giving statement.
13. Coming to the evidence of PW-19, Head Constable, he deposed that on 22.05.2008 at 10.00 a.m. he received Ex.P.20 medical intimation from the Government Hospital, Hindupur to record the statement of the injured Lakshmidevamma. He immediately rushed to the Hospital, found burn injuries on the injured, who was in a position to give the statement, and recorded her statement, in the presence of the duty doctor. Ex.P.21 is the said complaint statement of the injured Lakshmidevamma. The duty doctor also certified about the state of mind of the injured on Ex.P.21. He also stated that he sent Ex.P.20 medical intimation, and Ex.P.21 complaint statement of the injured to the Roddam police station on the point of jurisdiction.
14. As could be seen from Ex.P.21, the complaint statement made by the injured, which is recorded by PW.19, Head Constable, the injured stated that her husband died about years ago, that she developed illegal intimacy with the accused and the accused was paramour of the deceased. The accused did not give anything for monthly maintenance. On the other hand, the accused was demanding her for money for his bad vices and making galata when she refused to give money. She (deceased) further stated in Ex.P.21 that on 22.05.2008 at about 4.00 p.m., the accused came and demanded her to give money for alcohol purpose, and she replied that she has no money. Therefore, the accused threatened her that nobody will come to her rescue, if he kills her, and by saying so the accused picked up kerosene oil and poured on her and lit fire with match stick, resulting in burn injuries. Immediately, PWs.4 and 5 came there and the accused left from there, and PWs.4 and 5 also put off the flames and brought her to the hospital.
15. In this case, the evidence of PW-16, Judicial First Class Magistrate, and PW-19, Head Constable has got vital importance, as all the material witnesses have turned hostile and did not support the case of the prosecution. The entire case revolves on Ex.P.17, dying declaration recorded by Judicial First Class Magistrate (PW.16), and Ex.P.21, complaint statement recorded by the Head Constable (PW.19), in the presence of the duty doctor. Apart from this, there is absolutely no material to prove the guilt of the accused. Hence, we have to examine the correctness or otherwise and the acceptability of both Ex.P.17, the dying declaration recorded by the Judicial First Class Magistrate (PW.16), and Ex.P.21 complaint statement recorded by the Head Constable. Ex.P.17 - Dying declaration is the earlier document than Ex.P.21 complaint statement. Ex.P.17 - dying declaration was recorded by the Judicial First Class Magistrate - PW16 at 8.45 p.m. on 22.05.2008; whereas Ex.P.21 complaint statement was recorded by PW.19, Head Constable, at about 10.00 p.m. on the same day i.e., 22.05.2008, which was the base to register the case against the accused. In both these statements, the duty doctor endorsed that the patient was conscious, coherent and in a fit state of mind to give such statement. PW-16, the then Judicial First Class Magistrate, after recording the dying declaration (Ex.P.17) read over and explained its contents to the injured, upon which she admitted the same to be true and correct, and later he obtained the LTM of the injured. The duty doctor again endorsed on Ex.P.17. Similar is the situation with regard to Ex.P.21, complaint statement recorded by PW.19, Head Constable, on which also the duty Doctor certified similarly.
16. In a case of this nature, where even though all material witnesses have turned hostile and did not support the case of the prosecution, the dying declaration made by the injured/victim will acquire more importance and can form the sole basis for conviction, if it is free from legal infirmities. The only important thing is that, the statement of the deceased should be consistent through out. If the injured/deceased had several opportunities of making such declarations, they should be consistent. It is also settled that if the dying declaration is found to be voluntary reliable and made in a fit mental condition, it can be safely relied upon without any kind of corroboration. However, the reliability of such declaration should be subjected to close scrutiny in view of the fact that it was made in the absence of the accused, who had no opportunity to test the same by cross-examining the person making such statement. In this case, apart from Ex.P.17, dying declaration recorded by the jurisdictional Judicial First Class Magistrate, PW.19, Head Constable recorded Ex.P.21 complaint statement. In this situation, if there are any inconsistencies and infirmities between these two statements, we have to examine the nature of the said inconsistencies in both the statements, in the light of various surrounding facts and circumstances, whether they are material or not. But, in this case, having seen Ex.P.17, dying declaration recorded by Judicial First Class Magistrate and Ex.P.21 complaint- statement recorded by Head Constable, it is clear that there is consistency in both the statements that the accused poured kerosene on Lakshmidevamma and lit fire, as she could not give money, as demanded by the accused. In both the statements, the injured clearly stated that the accused is the person who poured kerosene on her and lit fire, however, with minor discrepancy with regard to the source of fire i.e., with smoking beedi or match stick. In our view, such a minor inconsistency is not a valid ground to discard the dying declaration or the complaint statement, which are corroborating with each other. Apart from that, the contents of Ex.P.25 inquest panchanama are clearly corroborated with the circumstances stated both in Ex.P.17, dying declaration and Ex.P.21 complaint statement of the deceased. In view of the above and also in view of the endorsement of the duty doctor that the injured was in a fit state of mind to give the statement, either the correctness of the contents of both Ex.P.17, dying declaration and Ex.P.21 complaint statement, or the physical/mental fitness of the victim/deceased to make such statements, cannot be doubted.
17. In a case of this nature, it is settled that there is neither rule of law nor of prudence that the dying declaration cannot be acted upon without corroboration, and if the Court is satisfied that the dying declaration is true and voluntary, it can form the sole basis for conviction without any corroboration. In this case, though there are two dying declarations or statements, they are consistent and corroborative with each other. The dying declaration is the statement made by a person as to the cause of his/her death or the circumstances which resulting in his/her death. Therefore, we are of the view that the Court below, considering the evidence on record, particularly, the evidence of PWs.16 and 19, supported by Exs.P.17 and P.21, had come to a correct conclusion that the prosecution has proved the guilt of the accused beyond reasonable doubt, and thus the accused is liable for punishment.
18. The next aspect, which is relevant, is that though the appellant/accused is held responsible for the cause of the death of the deceased and liable for punishment, we have to see whether the Court below is right to come to the conclusion that the accused had any intention to commit the murder of the deceased, and thus liable to be punished for the offence under Section 302 IPC. As far as this aspect is concerned, as could be seen from the material on record, the admitted case of the prosecution is that when the deceased told him that she has no money, the accused grew wild and openly challenged the deceased who will rescue her from his hands, if he kills her, and by saying so, the accused instantly took plastic kerosene tin, poured kerosene on the deceased and set her on fire with a match stick, as a result of which, the deceased sustained burn injuries. It is also on record that on hearing the cries of the injured/deceased, PWs.4 to 6 along with another person came there, poured water on the injured, and the accused himself also tried to put off the flames by pouring water. It is also available on record that in the process of rescuing the victim/deceased from the flames, the accused sustained burn injuries, for which he took treatment, as is evident from Ex.P.12, wound certificate issued by the Doctor, PW.12. Therefore, as rightly pointed out by the learned counsel for the appellant/accused, we are of the view that the accused had no intention to kill the accused, as there is no preparation or predetermination to kill. Therefore, we are of the view that the act committed by the appellant/accused amounts to culpable homicide not amounting to murder.
19. Therefore, taking into consideration the above totality of the facts and circumstances, the act committed by the appellant/ accused and other circumstances surrounding the incident, we feel that the offence that is committed by the accused attracts the provisions of Section 304 Part-I of IPC, but not Section 302 IPC.
20. In that view of the matter, we are of the view that though the accused is guilty of the act committed by him, the judgment impugned needs to be modified, as the accused is liable to be convicted for the offence under Section 304 Part-I IPC, instead of Section 302 IPC.
21. In the result, the Criminal Appeal is partly allowed. The conviction imposed against the appellant-accused in S.C.No. 145 of 2009, dt.09.12.2009, by the Additional Sessions Judge, Hindupur, for the offence punishable under Section 302 I.P.C., is converted into Section 304 Part.I of the Indian Penal Code; and the sentence of imprisonment of life is reduced to seven years rigorous imprisonment, with set off of the period of sentence already undergone by the accused. However, the fine amount imposed by the trial Court is maintained.
After the completion of this modified sentence of imprisonment, the appellant–Accused shall be set at liberty, unless his detention is required in any other case. The material objects, if any, shall be destroyed after the appeal time is over.
G. Chandraiah, J.
M.S.K. Jaiswal,J.
Dt.30.12.2014 Kv HON'BLE SRI JUSTICE G. CHANDRAIAH AND HON'BLE SRI JUSTICE M.S.K.JAISWAL Criminal Appeal No. 564 of 2010 (Judgment of the Division Bench delivered by Hon’ble Sri Justice G. Chandraiah) Dated: 30.12.2014 Kv