HON'BLE SRI JUSTICE L. NARASIMHA REDDY AND HON'BLE SRI JUSTICE M.S.K.JAISWAL Between:
Criminal Appeal No.299 of 2010 Dated: 16.04.2014 Debbati Pullaiah … Appellant And State of Andhra Pradesh, Represented by PP. High Court, Hyderabad.
… Respondent HON'BLE SRI JUSTICE L. NARASIMHA REDDY AND HON'BLE SRI JUSTICE M.S.K.JAISWAL Criminal Appeal No.299 of 2010 JUDGMENT: (Per Hon’ble Sri Justice M.S.K.Jaiswal) The appellant/accused was tried in S.C.No.273 of 2008 on the file of the III-Additional Sessions Judge (FTC), Asifabad, for an offence punishable under Section 302 I.P.C. IN causING the death of his wife Debbati Kaveri and eight month old infant son Vishnuvardhan (hereinafter referred to as ‘D.1’ and ‘D.2’) in the early hours of 24-05-2007 at his house in Khairgaon village of Rebbena Mandal.
2. The facts, in brief, are as under:-
The accused and D.1 were married in 2002 and were blessed with a daughter Akanksha, and a son-D.2. At the time of marriage, substantial amount of dowry and landed property was given. The accused was still demanding money. Ever since D.1 conceived D.2, the accused has been suspecting the fidelity of D.1 on the ground that ever since the birth of the first child Akanksha, she did not participate with him in sexual intercourse. Subsequently, D.1 gave birth to D.2 and the accused continued to question the character of his wife-D.1.
It is alleged that on 24-05-2007 at about 03.00 a.m., when the accused, D.1 and D.2 were in the room, there was an altercation in between them and the accused poured kerosene and set fire to his wife and son. Neighbours gathered there and summoned the relatives of D.1 as well as an ambulance. D.1 and D.2 were shifted to the Hospital at Asifabad, but by that time, D.2 died. For better medical treatment, D.1 was being shifted to Mancherial Government Hospital and on way, the uncle of D.1, who was accompanying them, got down at Rebbena P.S. at about 06.00 a.m., lodged the complaint, and thereafter proceeded to Mancherial Hospital. The case was registered as Crime No. 41 of 2007 and a requisition was sent to the Executive Magistrate – Sri K.Salman Raju (PW.11), who visited the Hospital and recorded the dying declaration of D.1. After D.1 was pronounced dead, further investigation was taken up and inquest was held by the Executive Magistrate PW.11. Post-mortem was conducted by the team of Doctors consisting of PW.15 Dr.K.Uday Chander and another Doctor by name Saibaba. Scene of offence panchanama was conducted and the statements of the witnesses were recorded.
On 27-05-2007 the accused was arrested and he is said to have confessed of committing the crime. After completing the investigation, the C.I. of Police PW.20 filed the charge-sheet.
Cognizance was taken and the case was committed to the Court of Sessions, Adilabad, which was made over to the III- Additional Sessions Judge (FTC), Asifabad, for trial. Charge under Section 302 I.P.C. was framed and the accused pleaded not guilty. The prosecution examined PWs.1 to 20, produced Exs.P.1 to P.28 and M.Os.1 to 10 were taken on record. In defence, except for marking Ex.D.1, which is a part of the statement of PW.3, recorded under Section 161 Cr.P.C., no other defence is produced.
Through its Judgment, dated 24-10-2008, the trial Court found the accused guilty of the charge and accordingly sentenced him to undergo imprisonment for life and to pay fine of Rs.2,000/-. Hence, the appeal.
3. The contention of the learned Counsel for the accused is that the evidence of the prosecution witnesses does not prove the guilt of the accused beyond reasonable doubt and the prosecution miserably failed to connect the chain of circumstances with reliable, cogent and consistent evidence. It is further submitted that there are material omissions and improvements as between the complaint Ex.P.1 and the evidence on record. Learned Counsel further submits that the dying declaration recorded by the Executive Magistrate, which is heavily relied upon, does not satisfy the requirements and the conviction cannot be based on it. Learned Counsel further submits that the evidence on record has not been properly appreciated, and the same resulted in the accused being erroneously convicted.
4. Learned Additional Public Prosecutor, on the other hand, submits that involvement of the accused has been established, both by the ocular testimony of the neighbouring residents and the statement of the deceased herself, recorded by the Executive Magistrate. She further submits that the omissions and improvements, which are highlighted, are too trivial in nature and they do not affect the credibility of the case of the prosecution. It is further submitted that at the time when the incident took place in the room, none except D.1 and the accused were present, and the accused failed to explain the circumstances which resulted in the deceased sustaining burn injuries. Except for suggesting that the deceased committed suicide unable to bear the stomach pain, nothing important is placed on record to discredit the statement of D.1 herself. Learned Additional Public Prosecutor further submits that the trial Court has taken all the aspects into consideration, and has convicted the accused on the evidence, and the Judgment does not warrant any interference.
5. The undisputed facts are that D.1 is the wife of the accused and D.2, a female child is one of are their children, and that both the deceased died due to burn injuries. The contentious aspect is as to whether it is an act of suicide by D.1, or, whether the accused poured kerosene and set them on fire. It is not denied that the incident took place at about 03.00 a.m., on 24-05-2007 in the room occupied by the accused and the deceased. Except for suggesting that the deceased committed suicide, nothing further is put to many of the prosecution witnesses. It was not even suggested to them that at the relevant point of time, the accused was not in the house, in the company of the accused.
6. PW.1 is the paternal uncle of D.1 and the de facto complainant. It is in his evidence that on 24-05-2007 in the morning hours, he received telephone call from Debbati Santhosh PW.7 that D.1 and D.2 have been set fire and that himself and others have extinguished the fire and are shifting the injured to the Government Hospital, Asifabad. PW.1 further deposed that immediately he informed his brother PW.2, the father of D.1 about the incident, and they all proceeded towards the house of the accused. On the way, when they reached near Mothuguda village, they found the ambulance coming opposite to them, and from there, they also followed the ambulance. He further deposed that they reached Asifabad Hospital by 04.00 a.m., at about 05.00 a.m., D.2 died and the nurse, who was attending on the deceased, advised that D.1 be shifted to at Hospital at Mancherial for treatment. He has also stated that they shifted D.1 and D.2 to Mancherial, and on way, he got down at Rebbena P.S., and lodged the complaint Ex.P.1. The S.I. of Police, who took the complaint, came near the vehicle, enquired from D.1 and in view of her serious condition, advised them to proceed to the Hospital immediately. PW.1 stated that after reaching Mancherial Hospital, the Doctors started treating D.1 and they were not allowed inside.
On similar lines is the evidence of PWs.2 and 3, who are father and mother of D.1. Both the witnesses have consistently deposed that on being informed about the fire incident, they reached the Hospital, the complaint was filed and that both the deceased succumbed to the burn injuries. They denied the suggestion that the deceased committed suicide, unable to bear the stomach pain. It is also in their evidence that while at Mancherial Hospital, the statement of D.1 was recorded by the Mandal Revenue Officer (Executive Magistrate).
PW.4 is the driver of the vehicle, in which the deceased were shifted to the hospital. His stated that the deceased were shifted to the hospital.
PW.5 is the person who informed PW.1 about the incident. He stated that on the date of the incident, at about 03.30 a.m., he heard the cries of the parents of the accused, that he immediately went there and observed that the doors of a room are closed and flames were emanating from the room. Thereafter, himself, PW.6 Debbati Nagesh, PW.7 Debbati Santosh and two others are said to have forcibly opened the doors, poured water on the fire, removed the blanket from the bodies of D.1 and D.2, and thereafter, the injured were shifted to the hospital. PW.5 fairly conceded that he does not know as to how the fire accident has taken place, but he heard the people saying that it is the accused who set fire to them. On similar lines, is the evidence of PWs.6 and 7. These three are the neighbouring residents who have put off the flames and helped the injured, being shifted to the hospital. They did not, however, state as to who is responsible for the incident. Their evidence substantiates the fact that the deceased sustained burn injuries at about 03.00 a.m., on 24-05-2007.
PW.8 is another resident of the village who also reached near the scene and noticed the burn injuries on D.1 and D.2. He did snot speak anything further.
PW.10 is the mother of the accused. She stated that D.1 is none other than the daughter of her brother. As expected, her evidence is that D.1 and D.2 sustained burn injuries but she does not know as to how the incident took place. She stated that her son, the accused was not in the house at that time. She was treated hostile by the prosecution, and in the cross-examination, she denied having stated before the police, as in Ex.P.13. It was elicited from he4 cross-examination by the accused that in the night of the incident, till about 03.00 a.m., D.1 slept with her on the first floor, and thereafter, she went to her room on the ground that she is having stomach pain. If what she stated is true, she would not have allowed D.1 to go and sleep in the room alone, being the mother-in-law and also the paternal aunt, particularly, when D.1 was complaining about the unbearable stomach pain. The natural reaction would have been is to take care of her, but not allow her to go and sleep alone in the ground floor, when the accused/husband of D.1 was not in the house, as claimed by her. Therefore, her evidence cannot be taken as true. The theory of the deceased committing suicide unable to bear the stomach pain, apparently becomes weak, if the evidence of PW.10 is carefully analyzed.
The other evidence is of PW.11, who is the Tahasildar, Mancherial and who recorded the dying declaration of D.1. He, on being requisitioned, went to the hospital and recorded the statement of D.1 after certification of the patient, by the Medical Officer. Ex.P.14 is the dying declaration recorded by the Executive Magistrate.
PW.12, the Doctor, deposed that he was present when the dying declaration was recorded and found that D.1 to be conscious and coherent. This brings us to the mainstay of the case of the prosecution, i.e., the recording of the dying declaration – Ex.P.14, was recorded in accordance with the requirements. A perusal of the same discloses that D.1 stated that that the accused poured kerosene on them and set on fire. The reason for this cruel act of the accused, in the words of D.1 is that in the night, the accused wanted her to participate in the sexual intercourse and when she refused, due to pain in stomach, the accused suspected her, poured kerosene and set on fire. This assertion is made by D.1 in her statement, not once but twice. The trial Court believed it and we are satisfied that it is truthful, coherent and inspiring. We do not see any reason to doubt the veracity of D.1 in her statement, which she gave about two hours prior to her death.
The other evidence on record comprises of the deposition of the panch witnesses. It is not significant since it is not disputed that the deceased died due to burn injuries in the house of the accused.
7. Learned Counsel for the accused vehemently argues that in Ex.P.1, all the details that are spoken to by PWs.1 to 3 are not mentioned. It may be recalled that at about 03.30 a.m. in the morning, on being telephonically informed, PWs.1 to 3 rushed to the village of the accused and on way itself, they have seen the deceased being shifted to hospital. They followed the vehicle and on the way, when they were crossing Rebbena P.S., wisdom prevailed upon PW.1 and he acted with full responsibility by stopping for a while, going to the Police Station and lodging the complaint and informing about the incident to the S.I. of Police. At that time, D.1 was in the vehicle writhing with pain and the paramount consideration for either PWs.1 to 3 or for that matter, even the police officials will be to see that the injured receives medical attendance, as expeditiously as possible. Nobody, at that time, will even think of wasting a minute, and at that time, with that state of mind, we cannot expect the parents of the deceased to narrate all the events that preceded before the incident, dating back to her marriage about five years back.
8. The complaint is not required to be a full-fledged report of all the events relating to a crime. It would serve the purpose if the mention of the main incident is made. Rest is to be ascertained in the course of investigation. We noticed from Ex.P.1 that the requisite particulars are furnished therein. It is categorically mentioned that on being informed about the burn injuries, PW.1 and others went to the village and D.1 and D.2 were being shifted to the hospital. It also mentions about the death of D.2 few minutes prior to submission thereof. It referred to the fact that D.1 is being shifted to Mancherial hospital. Taking into consideration, the surrounding facts and circumstances, we feel that no capital can be made out of the fact that all the details from the date of marriage till the date of incident are not mentioned in the complaint Ex.P.1. Suffice to observe that Ex.P.1 contains the information which is required for setting the criminal law in motion. Therefore, we see no substance in the argument of the learned Counsel for the accused that the non-mentioning of all the details in Ex.P.1 is fatal to the case.
9. We have carefully and critically analysed the entire material on record. We see no reason to disbelieve the dying declaration, which is recorded by the Executive Magistrate PW.11 from D.1. The other evidence on record proves beyond reasonable doubt, that the deceased sustained burn injuries while they were in the room of the accused. The trial Court has appreciated all the aspects in proper perspective and has found the accused guilty. We see no reason to interfere with the said findings. There are no merits in the appeal and the same is liable to be dismissed.
10. In the result, the Criminal Appeal is dismissed. The material objects, if any, shall be destroyed after the appeal time is over.
L.Narasimha Reddy,J.
M.S.K. Jaiswal,J.
Dt.16.04.2014
Note: Mark L.R.Copy.
(bo) Smr
HON'BLE SRI JUSTICE L. NARASIMHA REDDY AND HON'BLE SRI JUSTICE M.S.K.JAISWAL Criminal Appeal No.299 of 2010 (Judgment of the Division Bench delivered by Hon’ble Sri Justice M.S.K.Jaiswal) Dated: 16.04.2014
Smr
THE HON’BLE SRI JUSTICE L. NARASIMHA REDDY
and
THE HON’BLE SRI JUSTICE M.S.K.JAISWAL Crl.Appeal No. 299 of 2010
%16-04-2014
#Debbati Pullaiah … Appellant-Accused
Vs.
$ State of A.P., rep. by its P.P., High Court of A.P., Hyderabad
...Respondent
<GIST:
>HEAD NOTE:
! Counsel for the Appellant : Ms.Naseeb Afshan.
^ Counsel for respondent : Public Prosecutor
? CASES REFERRED : ….