Yadagiri vs State of A.P.

G. Radhakrishna Rao, J.—The sole accused in S.C. No. 18 of 1990, on the file of the III Addl. Metropolitan Sessions Judge, Hyderabad, is the appellant. Having been aggrieved by his conviction for the offence u/s 302 of the Indian Penal Code and the sentence of imprisonment for life, imposed against him by the learned III Additional Metropolitan Sessions Judge, Hyderabad, by his judgment dated 23rd September, 1991, the accused has preferred this appeal.

The case of the prosecution, in brief, is as follows:-- Narasamma, hereinafter referred to, for short, as ''the deceased'', is the wife of the accused. Their marriage was performed on 22.4.1988 and after the marriage they used to live at Ranga Nagar for some time. Subsequently the accused was appointed by one G. Srinivas Raju to work in his grape garden at Hakeempet. So the accused and his wife, the deceased, started residing in the grape garden and used to visit their house at Ranga Nagar now and then.

Twenty days prior to 5-8-1989, the accused and the deceased came to Ranga Nagar and stayed with the mother of the accused. The accused was pressing the deceased to accompany him to Hakeempet and in that connection they started quarrelling daily.

On 5-8-1989, while leaving the house in the morning, the accused asked the deceased Narasamma to prepare rice and tamarind chatney. He returned back by 10-30 a.m. and found that his wife had prepared only rice but she did not prepare chatney. Thereupon, the accused grew wild and started quarrelling with her. So quarrelling they entered into a room of the house where the accused beat the deceased, poured kerosene oil on her clothes and lit fire and came out of the room and stood outside duly bolting the door from outside. The deceased Narasamma raised hue and cry which attracted the neighbours and P. Ws. 1 to 3 and others came there and entered into the room where the deceased was found burning. By the time they entered into the room the clothes of the deceased Narasamma were completely burnt and she sustained injuries all over her body. The witnesses wrapped a kambali and brought her out. They found the accused standing at the door outside the room. When asked, the deceased Narasamma told the ladies that she was burnt by the accused. The ladies forced the accused to take the deceased to Gandhi Hospital. Accordingly the accused took his wife to Gandhi Hospital admitted her at 1-00 p.m. on that day.

At 2.05 p.m. on a telephone message from Gandhi Hospital, P.W. 9 went to Gandhi Hospital and recorded the statement of the injured Narasamma at 2,30 p.m., who was conscious at that time and she affixed her thumb mark on the said statement, which is marked as Ex. P. 8. P.W. 9 handed over Ex. P. 8 statement to the S.H.O., Musheerabad Police Station who issued F.I.R. in Crime No. 139/89 u/s 307 I.P.C. and sent a requisition to the XVIII Metropolitan Magistrate, Hyderabad to record the dying declaration of the injured Narasamma. P W. 7 XVIII Metropolitan Magistrate recorded the dying declaration of Narasamma at 4.50 p.m., which is marked as Ex. P. 5. While the injured Narasamma was undergoing treatment in the hospital, she succumbed to the burn injuries on 7.8.1989 at 2-30 p.m. On receipt of the death intimation P.W. 12 the S.I. of Police, Musheerabad P.S. issued Ex. P. 13 requisition for alteration of the Section of law in the F.I.R. from Section 307 I.P.C. to Section 302 I.P.C.

P.W. 6 Mandal Revenue Officer, Musheerabad, on a requisition of the S.I. of Police, Musheerabad, held inquest over the dead body of the deceased Narasamma on 8.8.1989 between 12.00 Noon and 1.30 p.m. in Gandhi Hospital, Secunderabad in the presence of PW. 5 and another and prepared the inquest report, Ex. P. 3. Thereafter, P.W. 8 Civil Assistant Surgeon in Forensic Medicine, Gandhi Medical College conducted postmortem examination over the dead body of the deceased Narasamma between 3.00 p.m and 4.00 p.m. on the same day, i.e., 8.8.1989 and found epidermal burns all over the body of the deceased, except on the scalp area, and both soles of the feet and right lateral aspect of the fore-arm. According to the doctor, the total burns are 90% and red erythema was present over both limbs and blackening and soot on the chest and neck and the organs are congested. The doctor opined that the cause of death of the deceased was due to shock on account of burns to an extent of 90% over the body. The accused was arrested on 11.8.1989 and remanded to judicial custody. After completion of investigation into the case, the Sub-Inspector of Police filed the charge sheet.

On the basis of the above allegations, a charge u/s 302 I.P.C. was framed against the accused. In support of its case, the prosecution examined P.Ws. 1 to 12 and got Exs. P. 1 to P. 13 marked. After the closure of the prosecution evidence, the accused was examined u/s 313 of the Code of Criminal Procedure. The plea of the accused is one of total denial.

Learned Counsel appearing on behalf of the accused vehemently contended that there are no eye witnesses to the incident, that the dying declaration, Ex. P. 5 cannot by given due weight as the deceased was stated to be under the influence of sedative and so she would not be in a position to make the statement and that except the dying declaration there is no other evidence connecting the accused with the crime.

As already stated above, Ex. P. 5 is the dying declaration recorded by P.W. 7 the XVIII Metropolitan Magistrate, Hyderabad. She deposed that she received a requisition, Ex. P. 4 on 5.8.1989 at 4.30 p.m. from the Inspector of Police, Musheerabad to record the dying declaration of Narasamma, who is said to be in Gandhi Hospital, that she visited the said hospital at 4.45 p.m. and recorded the dying declaration of Narasamma. The Magistrate further deposed that Narasamma was conscious at that time, that she put preliminary questions in Telugu language to ascertain whether she was able to answer the questions properly that she gave answers in Telugu, that Dr. Shanti Prasad was present throughout the recording of the dying declaration and that after recording the dying declaration she read over the contents to Narasamma and Narasamma accepted them and then put her thumb mark on Ex. P. 5. P.W. 7 further deposed that the doctor also made an endorsement on Ex. P. 5 that the patient was conscious at the time of recording the dying declaration.

It is contended by the learned Counsel for the accused that when there are extensive burn injuries on the body of the deceased Narasamma and when sedative is said to have been given to her, she will not be in a position to give a statement. Whether a patient is in a fit condition to give a statement or not is a matter to be considered by the Magistrate who has come to record her statement. The Magistrate P.W. 7 found the injured Narasamma to be conscious and after putting the preliminary questions and after satisfying herself that the deceased was in a position to make the statement, then alone P.W. 7, recorded the dying declaration. In addition to the evidence of P.W. 7 the Magistrate, we are having the evidence of the doctor P.W. 11 who is stated to be present, at the time when the dying declaration was recorded by P.W. 7. P.W. 11 deposed that the patient Narasamma was conscious and coherent and she was in fit condition to give the statement and that he accordingly certified on Ex. P. 5 and his certificate is marked as Ex. P. 10. Both P.W. 7 and P.W. 11 deposed that at the time of recording the dying declaration except themselves no other person was present.

It is contended that as admittedly the patient was given pethidine drugs when she was admitted in the hospital, she could not have been conscious and given the statement as recorded by the Magistrate. In this connection we may refer to the evidence of P.W. 10 Asst. Professor of Surgery, Gandhi Medical College who treated the patient Narasamma. According to him after the patient regained conscious she suffered with unbearable pain and immediately he gave pain killing drugs, such as pethidine and phenergan which are sedative drugs. But P.W. 10 has firmly stated in his cross-examination that after three hours of receiving of drugs the patient was fully conscious. The contention that the B.P. and the pulse rate of the patient were not recorded by P.W. 11 is of no consequence to the recording of the dying declaration as, as already stated, P.Ws. 7 and 11 deposed that the patient was conscious when Ex. P. 5 dying declaration was recorded. In fact, in Ex. P. 9 case sheet the B.P. of the patient is mentioned. The general presumption is that dying persons will speak the truth. It is useful to extract the dying declaration of the deceased Narasamma, recorded by P.W. 7, which is in the following terms :

XX XX XX XX XX On a careful examination of the contents of Ex.P. 5 dying declaration in the light of the evidence of P. Ws. 7 and 11 and the observations made by us in the preceding paragraphs, we are of the firm opinion that the dying declaration contains the truth, nothing but truth, which is given by the patient Narasamma out of her own volition when she was conscious and it can be acted upon.

The dying declaration Ex. P. 5 is further corroborated by the statements recorded by the Head Constable P.W. 9 who recorded the statement Ex. P. 8 at the earliest point of time when she was conscious on the basis of which a case was registered in Crime No. 139/89 u/s 307 I.P.C. and the further statement Ex. P. 11 recorded by P.W. 12 the S.I. of Police. Time and again the Supreme Court has been observing that when there is a dying declaration, even without looking for corroboration, if it strikes to the conscience of the Court as correct, conviction can be given. In this case we are not only having the dying declaration, duly proved, we are also having other circumstantial evidence leading to the guilt of the accused.

P.W. 1 V. Bharati deposed that she is residing in the house of the accused as a tenant since three years (prior to her giving evidence in Court), that the accused is living in one portion of the ground floor and in the other portion one Sarada is living as a tenant, and that whenever the accused and his wife Narasamma were in the house, they used to quarrel with each other. She further deposed that about two years ago at about 11-00 a.m. while she was in her portion of the first floor she heard the cries of her children and then she came to the ground floor and saw the accused standing in front of his door and the door was closed, that she also saw smoke inside the house and that she also noticed smell of burning of human body. According to her, by the time she came there P.Ws. 2 and 3 and others also gathered there and all of them broke the door of the house of the accused and then the door fell down inside the house and they saw Narasamma lying on the ground and she was talking then. In her cross-examination P.W. 1 stated that the accused and Narasamma used to quarrel on some occasions but she does not know the reasons for their quarrel.

P.W. 2 Bee Pasha is residing in the house in the opposite row of the house of the accused. She deposed that about two years ago at about 10-30 a.m. as her children came out she also came out from her house and then she saw smoke coming from the house of the accused and the accused was standing outside his house. According to her when the door was pushed it was opened and then Narasamma fell down on the ground with burn injuries. In her cross-examination she stated that the door was pushed with much force.

P.W. 3 Dhanalakshmi is also residing by the side of the house of the accused. She also corroborated the evidence of P.Ws. 1 and 2 on all material particulars. She also referred to the quarrels between the accused and the deceased. However, this witness was treated at hostile.

The evidence of P.Ws, 1 and 3 clearly establishes that there were frequent quarrels between the accused and the deceased. The evidence of P.Ws. 1 to 3 also establishes the presence of the accused outside the house at the door.

P.W. 8 Civil Assistant Surgeon in Forensic Medicine, Gandhi Medical College, Hyderabad, who conducted post-mortem examination over the dead body of the deceased Narasamma and who issued Ex, P. 7 postmortem certificate, deposed that there are epidermal burns all over the body and the total burns are 90% and the cause of death was shock due to burns of 90%. P.W. 3 C. Ramulu, who was present at the time when inquest was held over the dead body of the deceased by P.W. 6 the Mandal Revenue Officer and the evidence of the M.R.O. (P.W. 6) coupled with Ex. P. 3 inquest report, also establishes that the deceased Narasamma had burns all over her body and that the cause of death, as mentioned in Ex. P. 3, is due to burns.

The circumstantial evidence of P.Ws. 1 to 3, coupled with the dying declaration Ex. P. 5 and the medical evidence, clearly establish that it is the accused and the accused alone who had burnt his wife Narasamma and that he is guilty of the offence u/s 302 of the Indian Penal Code.

In the result, the criminal appeal is dismissed and the conviction of the appellant-accused for the offence u/s 302 of the Indian Penal Code and the sentence of imprisonment for life imposed against him by the Trial Court are confirmed.