THE HON'BLE SRI JUSTICE A.GOPAL REDDY and THE HON'BLE SRI JUSTICE K.C. BHANU DATED: 23-06-2010 CRIMINAL APPEAL No. 173 OF 2007 Between:
Potauri Sanyasirao . APPELLANT AND State rep., by its Public Prosecutor, High Court of A.P., Hyderabad and another . RESPONDENTS THE HON’BLE SRI JUSTICE A. GOPAL REDDY AND THE HON’BLE SRI JUSTICE K.C. BHANU CRIMINAL APPEAL No. 173 OF 2007 JUDGMENT: (Per the Hon’ble Sri Justice K.C. Bhanu) The sole accused in S.C No. 330 of 2001 on the file of the learned V Additional Sessions Judge, West Godavari, Eluru filed this appeal challenging his conviction under Section 302 IPC and sentence of imprisonment for life and to pay a fine of Rs.100/-, in default to suffer simple imprisonment for a period of one month.
2. The case of the prosecution is as follows:
The accused Potnuri Sanyasirao and Potnuri Perantalu (hereinafter referred to as ‘the deceased’) were married about sixteen years prior to the date of incident. They were blessed with two children PW 1 and another. The accused always suspected the deceased and used to assault her. About three years prior to the date of incident, the deceased left the company of the accused and started living with her parents. About one year prior to the date of incident, on the assurance given by the accused that he will look after her well and on the advise of the elders, the deceased and the accused lived together at the house of the parents of the deceased for six months and thereafter, they put up a separate family in Sriparu Village by taking a house in B.C Colony and there also, the accused used to beat the deceased.
On the date of incident i.e., on 11-03-2001 at about 1.30 or 2.00 AM, the accused poured kerosene on his wife who was sleeping. On that, the deceased woke up and questioned the accused for pouring kerosene. Then the accused declared that he would kill her and thus saying, threw a burning matchstick on her. The deceased was completely charred and she raised hue and cry. The accused ran away from that place. On hearing the cries, PW 1 came there and thereafter went and informed the neighbours who also came there. The deceased was shifted to the Government Hospital, Eluru in a mini van.
On 12th March, 2001 at about 3.15 AM PW 16 Civil Assistant Surgeon, Government Head Quarters Hospital, Eluru examined the deceased and then sent information under Ex.P-15 to the outpost police station and to the Magistrate under Ex.P-13 for recording the dying declaration. On receiving requisitions under Exs.P-15 and P-13, PW 12 the Head Constable, Government Head Quarters Hospital, Outpost Police Station and PW 11 the Judicial Magistrate of First Class, Special Mobile Court, West Godavari, Eluru recorded the statements of the deceased under Exs.P-16 and P-14 respectively. On the same day at about 7.00 AM on the basis of the statement of the deceased Ex.P-16, PW 13 Assistant Sub-Inspector of Police, Tanuku registered a case in Crime No. 35 of 2001 and issued F.I.R Ex.P-18. He then visited the hospital and recorded the statements of the deceased and PW 1 and then visited the scene of offence, prepared an observation report in the presence of PW 9 which is marked as Ex.P-10. Ex.P-19 is the rough sketch of the scene. At about 1.00 PM on receiving the death intimation of the deceased under Ex.P-17, he altered the section of law and issued altered F.I.R marked as Ex.P-20. PW 14, Inspector of Police, Eluru Rural Circle took over investigation and held inquest over the dead body of the deceased under Ex.P-11. On 13th March 2001, PW 6, Civil Assistant Surgeon, District Head Quarters Hospital held autopsy over the dead body of the deceased and opined that the cause of death was due to shock and haemorrhage as a result of extensive burns. Ex.P-3 is the post mortem report. During the course of investigation, the accused was arrested and on completion of investigation, PW 14 filed charge sheet for the offence punishable under Section 302 IPC.
3. The charge framed by the learned Sessions Judge reads as under:
“That you on the intervening night of 11/12th day of March, 2001 at about 1-30 AM at Sreeparru, did commit murder by intentionally causing the death of your wife Potnuri Perantalu (deceased) by way of pouring kerosene on her and litting fire and that you thereby committed an offence publishable under section 302 of the Indian Penal Code and within my cognizance.”
When the charge was read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried.
4. To substantiate the charge against the accused, the prosecution examined PWs 1 to 16 and marked Exs.P-1 to P-22, besides case properties MOs 1 to 8. No oral or documentary evidence was adduced on behalf of the accused.
5. The trial Court accepting the two dying declarations Exs.P-14 and P-16 recorded by PW 11 and PW 12 respectively found the appellant – accused guilty and accordingly, he was convicted and sentenced as aforementioned. Challenging the same, the present criminal appeal is filed.
6. The learned counsel for the appellant has contended that in view of the fact that the incident has taken place in the wee hours of the day when the deceased was sleeping, it is not possible for the deceased to identify as to who poured kerosene and set fire to her; that the two dying declarations are recorded at one and the same time giving raise to a suspicion that they are fabricated subsequently; that the statement of the deceased recorded by PW 13 was suppressed and has not been marked, that if really the accused is the assailant of the deceased, the deceased would have stated the same to PWs.1, 2, 3, 4 and 8 who rushed to the scene of offence immediately on coming to know about the same, that the deceased did not state to them as to how she sustained burn injuries, and hence, she prays to set aside the conviction and sentence recorded by the trial Court.
7. On the other hand, counsel representing the learned Public Prosecutor contended that there is no reason for the deceased to implicate the accused falsely leaving the real assailant, that Exs.P-14 and P-16 are consistent with regard to the manner in which the accused poured kerosene on the deceased and set fire to her, that on the date of the incident, the deceased and the accused were alone present in one room whereas PW 1 who is their son was sleeping in another room, that there was no scope or possibility for anyone to set fire to the deceased except to the accused, that it is not the case of the accused that the deceased has committed suicide, that the trial Court after elaborate consideration of the evidence on record rightly found the accused guilty and that there are no grounds to interfere with the judgment of the trial Court.
8. Now, the point for determination is, whether the prosecution proved its case beyond reasonable doubt for the charge levelled against the appellant and whether the judgment of the trial Court is correct, legal and proper?
9. The entire case of the prosecution rests upon the two dying declarations Exs.P-14 and P-16 which were recorded by PWs 11 and 12 respectively in the wee hours of 12-03-2001. When a statement made by a person either written or verbal as to the cause of his death or any of the circumstance resulting in his death, in case the death of that person comes into question, is admissible in evidence under Section 32 (1) of the Indian Evidence Act, 1872 (for short, ‘the Act’). The law is also well settled that once the dying declaration is found to be true, voluntary and trustworthy and not an out come of tutoring or prompting by relations or any interested person, it can be acted upon and conviction can be maintained even without any corroboration.
10. The scene of occurrence is not in dispute. It is the house of the accused and the deceased which is a rented tiled house bearing door No.1-28 located in BC Colony of Sriparu Village. The mediators for the scene of observation report found burnt mat on the earthen floor and also the burnt clothes. They also found dried kerosene mark on the earthen floor smelling kerosene. Even the accused is not denying or disputing about the taking place of incident in his house. It is also not in dispute that by the date of incident, the accused, the deceased and PW 1 were only residing in the rented tiled house. There is evidence on record which would go to show that at the time of the incident, the accused and the deceased were alone present in one room, whereas PW 1 was sleeping in another room. The incident is alleged to have taken place at about 1.30 AM during dark night. It is not the case of the accused that on the date of incident, he was not present in the house or in the room of the deceased where she was sleeping. Therefore, there was no scope or possibility for any other person to pour kerosene and set fire the deceased. The only possibility available to pour the kerosene is either the accused or PW 1. Since PW 1 was sleeping in another room, there was no chance for him to set fire to his mother. PW 16 who was the medical officer in the Government Hospital stated that he admitted female patient by name Potnuri Perantalu on 12-03-2001 at 3.15 AM and sent intimation to the outpost police station. He also sent a requisition to the concerned Magistrate who recorded the statement of the deceased under Ex.P-
13. Upon receipt of Ex.P-14, PW 11 went to the hospital at about 4 AM and recorded the statement of the deceased. A perusal of the statement recorded by PW 11 would go to show that while the deceased was sleeping, the accused poured kerosene, set fire to her and ran away. Similarly, PW 12 who is the Head Constable rushed to the hospital upon receipt of medical intimation and recorded Ex.P-16 statement from the deceased. He also obtained endorsement from the doctor to the effect that the patient was conscious and coherent to give the statement. A detailed statement was recorded by PW 12 wherein it is stated that while she (deceased) was sleeping, the accused came there in a drunken state and poured kerosene. Thereafter, the deceased woke up and then the accused set fire to her and ran away. The Magistrate recorded the statement of the deceased at 4.00 AM, where as PW 12 must have commenced recording of the statement at about 4.30 AM. Therefore, it cannot be said that they were recorded at the same time as contended by the learned counsel for the appellant. Nothing has been elicited to discard the testimony of PWs 11 and 12 with regard to their recording Exs.P-14 and P-16 statements respectively.
11. It is one of the contentions raised by the learned counsel for the appellant that the statement of the deceased recorded under Section 161 (3) Cr.P.C by PW 13 was suppressed and has not been marked, but as seen from the record, the statement of the deceased recorded by PW 13 was available in the record, but it is a sheer negligence or inadvertent mistake on the part of the Public Prosecutor in not marking the said document through PW 13. Therefore, when the document itself is available in the record, it cannot be said that the prosecution wantonly or deliberately suppressed the statement of the deceased recorded under Section 161 (3) Cr.P.C.
12. PW 15 is the doctor who certified that the deceased was in a fit state of mind to give the statement. PW 11, the Magistrate also put some preliminary questions to the deceased to know the state of mind of the deceased and after satisfying herself with the mental fitness of the deceased, she started recording the statement of the deceased. Therefore, the Magistrate had substantive satisfaction with regard to the fit mental state of the mind of the deceased before recording her statement. Therefore, from the two dying declarations, it is clear that it is the accused who poured kerosene and set fire to his wife.
13. It is further contended by the learned counsel for the appellant that PWs 2 to 4 and 8 who rushed to the scene of offence would have questioned the deceased as to how she sustained burn injuries and that since the deceased is not in a position to identify the assailant, she did not reveal the same. We are unable to accept the said contention because PWs 2, 3, 4 and 8 have rushed to the scene of offence upon PW 1 informing them about the incident. The case of the prosecution is that PW 1 having gone to the neighbours house informed that his father poured kerosene on his mother and set fire to her. Therefore, prior to reaching of the scene of offence, they knew very well as to who was the assailant of the deceased. So, in such circumstances they might not have questioned the deceased as to how she sustained burn injuries. Furthermore, when the deceased sustained burn injuries, their first object was to take her to the hospital so that necessary treatment would be given. Immediately, they requested PW 5 who owned mini van, to shift the deceased to the government hospital and accordingly, she was shifted. In such circumstances, there was no scope or possibility for these witnesses to question the deceased as to how she sustained burn injuries.
14. The death of the deceased is not in dispute. PW 6 is the doctor who conducted autopsy on the dead body of the deceased on 13-03-2001 found the following findings:
“Skin showed superficial to deep burns all over the body including the soles of feet synging of hair seen, eyes closed. Mouth partly open. Hair black 10” long.
External injuries:- Skin peeled off in most of the places. Haemorrhages seen subcutaneously.
Internal examination:
Skull:- cavity intact. Brain and meninges deeply congested. Hyoid normal. Treachea pharyngeal and lanyngeal mucous membrances congested covered with thin flim of soot.
Thorax:- cavity intact. Both lungs are normal size, congested on cut section, blood stained frothy fluid on expressing them. Heart normal size, filled with blood clots.
Abdomen:- stomach empty. Liver spleen, kidneys are in normal size, deeply congested on cut section, bladder empty. Uterus normal in size, empty admexae normal. Pelvis and spinal normal.”
The doctor opined that the deceased might have died due to shock and haemorrhage as a result of extensive burns (100%) antimortem in nature. The homicidal death of the deceased is established beyond all reasonable doubt and it is not the case of the accused that the deceased committed suicide for some other reason.
15. Therefore, in view of the discussion above, we have no hesitation to hold that Exs.P-14 and P-16 are the true and correct statements of the deceased which fall within the ambit of Section 32 (1) of the Act. Once they are found to be true and trustworthy, they can be acted upon to base a conviction even without any corroboration. That is the reason why the trial Court has placed reliance on the two dying declarations’ and found the appellant guilty for the charge levelled against him. There are absolutely no grounds to interfere with the conviction and sentence imposed by the trial Court.
1 6 . The appeal is devoid of merit and it is accordingly dismissed confirming the judgment, dated 09-05-2006 in S.C No. 330 of 2001 on the file of the learned V Additional Sessions Judge, West Godavari, Eluru.
A. GOPAL REDDY, J K.C. BHANU, J 23-06-2010 ks