Pavar Raju, v. The State Of Andhra Pradesh,

THE HON'BLE SRI JUSTICE C.V. NAGARJUNA REDDY AND THE HON'BLE SRI JUSTICE M.S.K. JAISWAL Criminal Appeal No.74 of 2011 DATED:10-07-2017 Between:

Pavar Raju ... Appellant And State of A.P.

Rep. by its Public Prosecutor High Court of A.P., Hyderabad Through C.I. of Police Karimnagar-1 ... Respondent COUNSEL FOR THE APPELLANT: Smt. P.S. Manjula COUNSEL FOR THE RESPONDENT: Public Prosecutor (TS) THE COURT MADE THE FOLLOWING:

JUDGMENT: (per the Hon'ble Sri Justice C.V. Nagarjuna Reddy) The sole accused in Sessions Case No.601 of 2009 on the file of the Sessions Judge, Karimnagar, filed this appeal, through legal aid, assailing the conviction for the offence under Section 302 Indian Penal Code (IPC) and sentencing him to imprisonment for life, and also to pay a fine of Rs.3,000/- and in default to suffer simple imprisonment for six months. 2.

The case of the prosecution in brief is that on 22.10.2008 at 11.00 hours, one Mrs. Mothe Soja Bai (LW.1), who is the mother of Swaroopa and resident of Kothirampur, Karimangar, lodged a complaint before P.W.15 - Sub-Inspector of Police, Karimnagar I Town Police Station, stating that she had three daughters and a son, that the marriage of the said Swaroopa (hereinafter referred to as "the deceased"), who is her elder daughter was performed with the appellant, a native of Khammam, about nine years ago, and that they were blessed with three children. That four years prior to the date of the occurrence, the appellant shifted his family to Karimnagar, and that he used to harass the deceased for getting money from her parents to purchase an auto.

That the mother of the deceased and her brother-in-law took an auto on finance and handed over the same to the appellant, that after one year the appellant sold away the said auto, that he took another auto from Surya Mitra Finance, but did not pay the instalments to the finance company and that he used to harass the deceased for getting money. That as the instalment of Rs.10,000/- was due to be paid on 21.10.2008, the deceased went to P.W.5 - her uncle and asked for Rs.5,000/-, and another sum of Rs.5,000/- from Chittala Padma as hand loan, for which they stated that they will give the amount on the next day. That on 21.10.

appellant came to his house, and on the deceased arriving at their house, the appellant questioned her why she went to the house of her uncle for asking money and by alleging that the deceased had illegal intimacy with him, beat her with hands and that with an intention to kill her, he poured kerosene on her body at 9.30 p.m. and by going to a nearby shop, he purchased a match box, returned home and lit fire to her. That the deceased poured water on herself to extinguish the flames, rushed outside and fell down. That one Mohan called '108 ambulance' and the deceased was shifted to Government Hospital, Karimangar, for treatment and that the incident was witnessed by P.Ws.1 and 2 and others. Thus, she requested the Police for taking necessary action. 3.

That based on the contents of the complaint, P.W.15 registered a case in Crime No.288 of 2008 under Sections 498-A and 307 IPC on 22.10.2008 and took up the investigation. That during the course of the investigation, he examined the mother of the deceased and recorded her statement, visited the scene of offence, examined P.Ws.1 to 5, 7 and one Gaja Vijaya and recorded their statements. That he observed the scene of offence, and drafted the same in the crime details form in the presence of the mediators - P.W.6 and another. That on the information passed on by the Government Hospital, Karimnagar, on 21.10.2008 at 11.30 p.m., P.W.14 - Judicial First Class Magistrate, Karimnagar, recorded the dying declaration of the deceased. That thereafter the deceased was shifted to Gandhi Hospital, Secunderabad, for better treatment where, while undergoing the treatment, she has succumbed to burn injuries on 28.10.2008 at about 12.40 hours. Based on the death intimation, P.W.15, altered the Section of law from Section 498-A IPC to Section 302 IPC and issued Express FIRs to all the concerned.

4.

That P.W.16 - Circle Inspector of Police, Karimnagar Town, took up the investigation of the case and deputed Assistant Sub-Inspector of Police (ASI), Karimnagar I-Town (LW.19), to Gandhi Hospital, Secunderabad, for conducting inquest over the body of the deceased. That the said ASI visited the Gandhi Hospital, examined P.W.11 and another, conducted inquest over the body of the deceased from 10.00 hours to 12.00 hours in the presence of P.W.9 and another, and sent the body for post-mortem examination. P.W.12 -Duty Medical Officer, Gandhi Hospital, conducted post-mortem examination and issued Ex.P.4 - postmortem examination report opining that the cause of the death is "burns". That P.W.16 examined P.W.8 - son of the deceased and eyewitness to the incident, mother of the deceased, P.Ws.

1, 2, 3, 4, 5, 7, 8, 11 and two others, but did not record their statements, as they have reiterated their earlier versions which they have deposed before the Assistant SubInspector of Police (LW.19) and P.W.15. That on 31.10.2008 at 9.00 hours, P.W.16 arrested the appellant at Karimnagar Bus Stand, that during interrogation he confessed his guilt, that later he was sent to judicial remand and that P.W.16 filed the charge sheet. 5.

As the plea of the appellant was one of denial, he was made to stand trial during which the prosecution has examined P.Ws.1 to 17 and marked Exs.P.1 to P.13. On behalf of the accused, Ex.D1 - a portion of the statement made by P.W.2 and Ex.D.2 - a portion of the statement made by P.W.5 under Section 161 CrPC., were marked. On appreciation of the oral and documentary evidence, the Court below has disposed of the case in the manner as stated hereinbefore.

6. We have heard Smt. P.S. Manjula, learned counsel for the appellant, and Sri C. Pratap Reddy, learned Public Prosecutor for the State of Telangana.

7.

This is a case mainly based on circumstantial evidence, except to the extent of a child witness, P.W.8, who is none other than the son of the deceased and the appellant. The mother of the deceased on whose report the law was set into motion, appeared to have died before the trial was commenced. In her report marked as Ex.P.10, she gave a graphic description of how her son-in-law had been harassing his wife and her parents demanding money. She has also narrated the events that have transpired on 21.10.2008, the date of the offence. It is her version that on 21.10.2008 when the deceased along with her children was watching T.V., the appellant has returned home, when all of them went into their room, he closed the doors, questioned the deceased as to why she has asked P.W.

5, her junior paternal uncle, money for payment of instalment to clear the auto loan, beat her with hands imputing illicit relationship with him and that he took a kerosene stove and poured kerosene on her. She has further stated that after pouring kerosene, the appellant went outside the house, closed the doors from outside, went to a kirana shop, purchased a match box, returned to his house and set the deceased ablaze with an intention to kill her. That the deceased after being caught in fire, poured water on herself from a nearby available pot, and thereby extinguished the flames before coming out of the house and falling down on the ground.

That after coming to know about the same, mother of the deceased rushed to the spot and brother-in-law of her son-in-law called '108 ambulance' and shifted the deceased to Government Hospital, Karimnagar.

daughter mentally and physically demanding money and with an intention to kill her, he has poured kerosene and set her ablaze. 8.

P.W.1, the landlady of the portion of the house in which the appellant and the deceased along with their children were living as tenants, deposed that on the date of the incident the deceased and her children came to her portion of the house to watch a serial in television at about 7.00 p.m. that they left at about 9.00 p.m. after watching the television serial, and that after some time, the deceased rushed out of her portion of the house with burn injuries and fell in front of the house and when she enquired with the deceased, she informed that her husband set her on fire by pouring kerosene. She denied the suggestion in the crossexamination that the deceased has accidentally caught fire while cooking food from the flames of the stove and sustained burn injuries and that the deceased has not disclosed to the witness that her husband set her on fire.

9.

P.W.2, grand-son of P.W.1, deposed that there used to be small quarrels between the appellant and the deceased on repayment of the loan borrowed for purchasing an auto rickshaw, that the deceased went to her relative to get money, on which the appellant questioned her by imputing illicit intimacy with the person whom she has approached, and that on the night of the occurrence, the witness was at home and the deceased along with her children came to their house to watch television. That after some time the appellant came at about 9.30 p.m., took the deceased and the children to their portion of the house, and the witness heard a quarrel going on between the appellant and the deceased, that after some time, the deceased came out of her house with flames on her body and fell down and that when he enquired with the deceased as to

what happened, she stated that her husband poured kerosene on her and set her on fire. Though certain suggestions were put to this witness, nothing material could be elicited from him to discredit his evidence as to his being at the scene of offence and also watching the deceased coming out of her house with flames on her body and falling on the ground. 10.

P.W.4, brother-in-law of the mother of the deceased, deposed that the mother of the deceased purchased an auto rickshaw for the appellant with the money she has got as death benefits of her husband, that the appellant was addicted to vices like consuming alcohol, due to which he sold away the auto rickshaw, that one-and-a-half months later, she again purchased another auto rickshaw through Surya Finance Company, but the appellant was not paying instalments and that there used to be quarrels in that regard between the appellant and the deceased. He has further deposed that the deceased informed him that the appellant was harassing her coming home in a drunken state and that he has to pay Rs.10,000/- towards purchase of the auto-rickshaw. That she has requested P.W.5 to give Rs.

5,000/- and he promised the deceased to give the same on the next day. He has further deposed that at the time of occurrence he was in his house and on coming to know that the appellant has poured kerosene and set the deceased on fire, he went to the house of the appellant by which time the deceased was taken to Government Hospital, Karimnagar. That when she enquired with the deceased in the Hospital, she narrated to him that the appellant quarrelled with her for her approaching P.W.5 and asking money from him, poured kerosene and lit the match box brought from a kirana shop.

relatives have created a false story to keep the appellant in control. It was also suggested that himself and other family members prevailed upon the deceased to falsely implicate the appellant and that as the deceased was related to the witness he was giving false evidence. 11.

P.W.5, junior paternal uncle of the deceased, testified that on the deceased approaching him with a request to lend Rs.5,000/- to pay the instalment of the auto rickshaw loan, he assured her that he will give the money on the next day morning and that later, he came to learn that the deceased suffered burn injuries and was admitted in Government Hospital, Karimnagar. He has further deposed that when he enquired with the deceased, she has informed him that the appellant has quarrelled with her as to why he approached P.W.5, and that the appellant has poured kerosene and set her ablaze. Nothing material was elicited from P.W.5 to discredit his evidence. The defence has got marked Exs.D.1 and D.2, the alleged contradictory statements made by P.Ws.2 and 5. A perusal of these purported contradictions does not reveal that there is any real contradiction as stated before the Police and their deposition before the Court.

12.

P.W.7 is a material witness. He has deposed that he is running a kirana shop at a place nearby the house of the appellant and the deceased. He has stated that on the night of occurrence the appellant came to his shop, purchased a match box and left, and that thereafter the witness has closed the shop and left. That on the next day morning he has learnt that the wife of the appellant died due to burn injuries. In the cross-examination, the witness admitted that he does not prepare bills at his shop whenever anyone purchases the articles and that he denied the

suggestion that the appellant did not come to his shop on the night of the occurrence and purchased the match box.

13.

P.W.8 is the child witness, who is none other than the son of the appellant and the deceased. In his chief examination he has stated that he is the last child to their parents and that his father after pouring kerosene on her mother, lit fire to her by striking a match stick and throwing it upon her, upon which her mother rushed out of the house, poured water on herself and fell on the floor. That at the time of the incident, his two sisters were also present. In his cross-examination he has deposed that he watched television in the neighbour's house, that after watching the television he has returned to their house and that after supper, he went to sleep.

14.

P.W.12, Assistant Professor in Department of Forensic, Gandhi Medical College, Hyderabad, who conducted the post-mortem examination on the body of the deceased, deposed that he has commenced the post mortem examination at 2.15 p.m. on 29.10.2008 and found ante mortem dermo epidermal burns present over the face, front neck, back of the chest, and upper part of front side of abdomen and patchy areas over both the thighs. He has further deposed that he has concluded the postmortem examination on the same day at 1.15 p.m. and as per the death summary the cause of death was "burns". He has issued Ex.P.4 - postmortem examination report. The only suggestion put to the witness was that percentage of burns is generally calculated for the treatment of injured, but the same is not done during the post-mortem. 15.

P.W.13 - the Deputy Civil Assistant Surgeon, District Head Quarters Hospital, Karimnagar, deposed about the deceased being brought to hospital at 11.00 p.m. with 45% burns, her admission in the burns ward,

the witness giving treatment to the deceased and sending intimation to the local Judicial Magistrate of First Class to come and record dying declaration of the injured, which was marked as Ex.P.5. She has also deposed that the Magistrate, on receipt of the intimation, visited the hospital at 11.40 p.m. and recorded the statement of the victim, on which the witness has certified that the patient was conscious and coherent, and is in a fit state of mind to give the statement, while recording the same. The statement of the deceased and the certification of the doctor are marked as Ex.P.6 and P.7. In her cross-examination, a suggestion was put to the witness that the patient was not conscious and that Exs.P.6 and P.7 are false.

She has replied to a question that no one among those who were present were allowed by the Magistrate while recording the statement and that it was not true to suggest that the parents and other relatives of the injured were present at the time of recording the statement of the injured. The witness added that those persons were present at the corridor. She has also denied the suggestion that parents and relatives of the deceased were present and they have tutored the deceased to give the dying declaration.

16.

P.W.14 - Additional Judicial Magistrate of First Class, Karimnagar, who recorded Ex.P.9 - dying declaration, deposed that on receipt of Ex.P.8 requisition from the Doctor, she reached the Government Head Quarters Hospital, Karimnagar, and that after putting some formal questions and on being satisfied that the injured was conscious, coherent and fit state of mind to give statement, she has recorded the statement. She has also deposed that she has obtained the opinion of the duty doctor about the mental condition of the patient. She has also referred to the contents of the statement made by the deceased. The dying declaration

was marked as Ex.P.9 through her. She has also denied the suggestion that on being tutored by her relatives, the deceased has given Ex.P.9 statement to her.

17.

P.W.15 - Sub-Inspector of Police, Karimnagar-I Town, who received Ex.P.10 report given by the mother of the deceased referred to the registration of the FIR, his sending Ex.P.11 to the Court and recording the statement of the de facto complainant under Section 161 CrPC. He has also deposed that the de facto complainant subsequently died and that during investigation the witness has visited the scene of offence and examined some of the prosecution witnesses, such as L.W.4, P.Ws.1 to 5 and 7. He has further deposed that he has secured the presence of P.W.6 and L.W.10 and in their presence he has drawn a sketch and recorded the details of the scene, that after receiving intimation from the Gandhi Hospital, Secunderabad, on 29.10.

2008 that the victim while undergoing treatment died in the hospital, he altered the section of law from Section 498-A IPC to Section 307 IPC and issued Ex.P.13 alteration memo and sent to the Additional Judicial Magistrate of First Class, Karimnagar. In his cross-examination, the witness admitted that when he went to the burns ward in the hospital, the patient and her relatives were present. He has admitted that P.W.4 has not stated to him that his sister-in-law (wrongly mentioned as "sister") i.e., mother of the deceased, bought an auto rickshaw for the appellant, that later the appellant has sold away the said auto rickshaw and that he has also not stated to him that the appellant was coming home in drunken state and harassing the deceased. He has further admitted that P.W.

4 has not stated to him that the deceased came and informed him that the appellant was not paying the instalments to the finance company and that P.W.

hospital and she disclosed to him that the appellant quarrelled with her, as she went to P.W.5, poured kerosene on her and lit the fire after buying a match box from the kirana shop. The witness has also admitted that P.W.5 has not stated before him that he has enquired with the deceased at the hospital and she has narrated about the incident. 18.

The most crucial part of the evidence is Ex.P.9 - dying declaration. As noted hereinbefore, P.W.14 - Additional Judicial Magistrate of First Class has recorded the said declaration and P.W.13 has attested the same. The dying declaration in its true translation reads as under: "Today only I brought kerosene. My husband is very suspicious. I got married about 9 years ago. Since then he has been beating. Since nine years he has been beating. He has been beating with suspicion. Not even one day he treated me well. Today also the quarrel took place. He came in drunken condition, abused and beat me severely. Today at 9.30 p.m., he poured kerosene on me. He brought a matchbox from the neighbouring shop and set fire. He very much suspects me. If I wear saree, he would say that my waist is visible. If I wear a thin jacket, he beats me. Today he poured kerosene and set fire to me."

19.

As could be seen from the dying declaration, it is clear that when the occurrence has taken place at about 9.30 p.m., the dying declaration was recorded at 11.40 p.m. If we closely read the gist of the dying declaration, they appear to be very natural. There are no embellishments and exaggerations. Whatever L.W.1 - mother of the deceased has mentioned in Ex.P.10 is truly reflected in the dying declaration. The events narrated in the dying declaration are also amply supported by the evidence of P.Ws.1 to 3 to the extent they have taken place immediately after the occurrence. Under the Indian Evidence Act, 1872, dying declaration is an exception to hearsay evidence and it enjoys highest probative value, as, it is believed that when a person making the statement is in danger of losing his life, at such serious and solemn

moment, he will not tell lies. If we closely consider the circumstances, we do not find any reason for the deceased to falsely implicate her husband, more so, when she was very much conscious of the fact that there are three small children to be looked after. Except some suggestions given to some of the prosecution witnesses as noted hereinbefore as well as the statements made by the appellant during his Section 313 CrPC examination, the defence could not establish that the deceased was tutored to falsely implicate her husband. A responsible Judicial Officer has recorded the statement of the deceased and therefore it was not possible for either the parents or close relatives to tutor the deceased to falsely implicate her husband. At any rate, we do not find any reason for such false tutoring, as the mother or other close relatives of the deceased will not gain anything by such false implication. It is not reflected from the defence that they have demanded any money from the appellant and that as he did not meet such illegal demands, the deceased has falsely implicated him.

20.

The conduct of the appellant also assumes relevance. Admittedly the deceased has suffered burns at their house during odd hours i.e, around 9.30 p.m. The appellant has not set up any alibi. Therefore, he is presumed to be present at the time of occurrence. Being husband, the appellant should have been the first informant, but that was not to be. Apart from the same, the appellant was never seen around after the incident has taken place. He did not appear to have accompanied the deceased to the hospital, or gone to the Police Station. He was arrested on 31.10.2008, i.e. two days after the death of the deceased, near the bus stand and not at his home. This conduct of the appellant clearly establishes his guilty mind.

21.

Though several suggestions were put to the witnesses regarding the dying declaration, we are of the opinion that the contents thereof are very natural and they do not appear to be the result of tutoring by the close family relations of the deceased. The theory of the appellant that the cause of the death was accidental is belied by the medical evidence. Ex.P.4 - post-mortem report shows that burns were present over the face, neck, and front and back of the chest. Had the burns been accidental, there was no possibility of the deceased sustaining the same on both sides of the chest.

22.

On a careful re-appreciation of the evidence on record, we are of the opinion that the prosecution was able to establish the guilt of the accused beyond all reasonable doubt and therefore we do not find any reason to interfere with the judgment of the lower Court. 23.

The appeal is accordingly dismissed.

__________________________ C.V. NAGARJUNA REDDY, J _________________________ M.S.K. JAISWAL, J 10-7-2017 bnr