Partly allowed

Kumba Siddaiah (C.P.No.9-83) v. State of a.P.Rep. by its Public Prosecutor

Telangana HC5 Feb 2010CRLA/530/2004

Case brief

AI extract

What is this about?

Criminal Appeal against conviction and sentence for attempted murder, grievous hurt, and cruelty. The High Court set aside conviction under Section 307 IPC due to insufficient intention to cause death but upheld convictions under Sections 326 and 498-A IPC based on evidence of acid attacks and dowry demands.

What did the court decide?

Conviction and sentence under Section 307 IPC set aside; conviction and sentence under Sections 326 and 498-A IPC confirmed.

Kumba Siddaiah (C.P.No.9-83) Vs State of a.P.Rep. by its… — Domestic Violence | Telangana HC (2010)

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IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD

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FRIDAY, THE FIFTH DAY OF FEBRUARY TWO THOUSAND AND TEN

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PRESENT

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THE HON'BLE SRI JUSTICE K.C. BHANU

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CRIMINAL APPEAL Nos.530 OF 2004 & 343 OF 2005

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CRIMINAL APPEAL No.530 OF 2004

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Between: Kumba Siddaiah, S/o. Late K. Krishnaiah

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..... APPELLANT

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AND

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State of A.P., represented by Public Prosecutor, High Court, Hyderabad

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....RESPONDENT

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CRIMINAL APPEAL No.343 OF 2005

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Between:

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Kumba Siddaiah, S/o. Late K. Krishnaiah

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..... APPELLANT

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AND

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State of A.P., represented by Public Prosecutor, High Court, Hyderabad

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....RESPONDENT

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The Court made the following:

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THE HON’BLE SRI JUSTICE K.C. BHANU

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CRIMINAL APPEAL Nos.530 OF 2004 & 343 OF 2005

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COMMON JUDGMENT:

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Both the Criminal Appeals, one through the Jail and another through an Advocate, under Section 374 (2) of the Code of Criminal Procedure, 1973, (for short, “Cr.P.C.”), are preferred by the appellant/sole accused against the judgment, dated 19.05.2003, in S.C.No.9 of 2003 on the file of Assistant Sessions Judge, Srikalahasti, whereunder and whereby, the trial Court found the appellant guilty of the offences punishable under Sections 307, 326 and 498-A of the Indian Penal Code, 1860 (for short, “I.P.C.”), and accordingly, convicted and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs.5,000/-, in default to undergo simple imprisonment for three months for the offence punishable under Section 307 I.P.C., and further sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.5,000/-, in default to undergo simple imprisonment for three months for the offence punishable under Section 326 I.P.C., and further sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.5,000/-, in default to undergo simple imprisonment for three months of the offence punishable under Section 498-A I.P.C.

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2. The brief facts that are necessary for disposal of the prosecution case may be stated as follows:

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PW.1 is none other than the wife of the accused. Marriage of PW.1 with the accused was performed six years prior to registering the case. PW.1 had two children. At the time of marriage PWs.2 and 3 presented Rs.10,000/- cash and gold jewels to the accused towards Dowry. Thereafter, it is alleged that the accused was demanding more dowry. Unable to bear the harassment, PW.1 brought Rs.5,000/- from her parents and gave it to the accused. Even then the accused was harassing PW.1. On one occasion she lodged a complaint to police. Police compromised the matter and directed the accused to lead happy married life with PW.1. On 07.01.2001, the

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marriage of PW.5 – Sister of PW.1 was performed and at that time, PWs.2 and 3 gave Rs.10,000/- to the husband of PW.5 towards dowry. On the 4^th day of the marriage of PW.5, the accused demanded PW.1 to bring Rs.10,000/from her parents, and that as PW.1 could not bring that amount, he made a hue and cry in the presence of the relatives at the time of marriage. On 05.08.2002, when PW.1 was going to board a bus, the accused poured acid on her face and also beat her with a bottle, as a result she fell down. It is also alleged that the accused beat PW.1 with an iron rod and as she raised cries, the accused escaped. PW.4, who was going on the way, saw the incident and informed the same to her parents and they brought PW.1 to the hospital for treatment, where her statement was recorded. The police registered a case and investigated. She was referred to the hospital for medical examination. PW.6 - doctor found some acid injuries on the body of PW.1. PW.10 observed the scene of occurrence and prepared a rough sketch of the scene of occurrence. He arrested the accused on 03.10.2002 at Varadaiahpalem bus stop. After completion of the investigation, he filed the charge sheet against the accused.

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3. When the charges under Sections 307, 326 and 498A I.P.C. were framed, read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried.

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4. To substantiate the case of the prosecution, the prosecution examined PWs.1 to 10 and got marked Exs.P-1 to P-5.

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5. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating material found against him in the evidence of prosecution witnesses. He denied the same. On behalf of the accused, no oral evidence was adduced but Ex.D-1 was got marked.

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6. The trial Court after considering the evidence available on record convicted and sentenced the accused for the offences punishable under Sections 307, 326 and 498-A I.P.C., as stated above. Challenging the same, the present Criminal Appeals are filed.

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7. Learned counsel appearing for the appellant contended that except the testimony of PW.1 and PW.4 there is no other evidence to prove the offences with which accused was charged; that there is a delay of 23 hours in lodging the complaint; that the medical evidence does not indicate that the injuries are likely to cause death in the ordinary course of nature; that there is no evidence to show that accused poured acid on the body of PW.1; and that the doctor did not specifically state in the wound certificate that the injuries are caused by sprinkling acid; and that the prosecution failed to seize the saree and blouse of PW.1 to show that the accused poured the acid on PW.1 and therefore, he prays to set aside the conviction and sentence.

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8. On the other hand, learned counsel appearing for the learned Public Prosecutor contended that the evidence of PW.1 is very clear that the accused is the assailant and he is the person who poured acid on PW.1, and that PW.4 has categorically stated that PW.1 sustained acid burn injuries, and therefore, the accused is liable for conviction for the offence punishable under Section 307 I.P.C.; and that the evidence of PW.6 and Ex.P-2, would clearly go to show that PW.1 sustained grievous injuries and that there was harassment on her with regard to additional dowry, and therefore, the accused was rightly convicted for the offences punishable under Sections 326 and 498-A I.P.C., and there are no grounds to interfere with the same and hence, she prays to dismiss the Criminal Appeals.

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9. Now the point for determination is whether the prosecution proved its case beyond all reasonable doubt against the accused for the offences punishable under Sections 307, 326 and 498-A I.P.C. and whether the judgment of the trial Court is correct, legal and proper?

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10. Insofar as the conviction under Section 307 I.P.C. is concerned, the prosecution must show that death of a human being was attempted and that death was attempted to be caused by or in consequence of the act of the accused and such act was done with intention of causing death or that was done with the intention of causing such bodily injury as the accused knew to be likely to cause death or that the accused had attempted to cause death by doing an act known to him to be so imminently dangerous that it must in all probability cause death or such bodily injury as was likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury.

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11. The evidence of PW.1 would go to show that on 05.08.2002 at about 09:00 AM, while she was going to board a bus at Varadaiahpalem, the accused who was waiting near the thorny trees, came upon her with acid in a brandy bottle and poured on her and as a result she fell down; thereafter, the accused poured acid on her legs after removing her saree up to the knees; then she raised cries and tried to catch hold of the accused, but he escaped. Admittedly, the accused is none other than her husband. If really some body has poured acid she would not have

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implicated her own husband falsely leaving the real assailant.

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12. The case of the accused is that to take revenge against him, as he used to suspect her character, PW.1 foisted a false case. It is not the case of the accused that PW.1 has not sustained any acid burn injuries on 05.08.2002. Similarly, it is not the case of the accused that PW.1 sustained those injuries at the hands of some other person at some other place and on some other date. The Evidence of PW.1 coupled with the evidence of PW.4, who is an independent witness, specifically discloses that it is the accused who poured acid on the body of PW.1.

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13. PW.4 stated that on 05.08.2002 at 09:00 AM when he reached the check post to go to Srikalahasti, PW.1 was coming from Indira Nagar to go to Varadaiahpalem; that at that time the accused was saying in a loud voice that he would pour acid on PW.1; that he thought that it was a dispute between wife and husband; that at a distance of 10 feet from the scene of occurrence, he observed accused pouring acid on the face of PW.1, and PW.1 was crying; that he immediately went and informed to PWs.2 and 3 about the incident. He is totally a disinterested witness. Nothing has been elicited in the cross examination of PW.4 to discredit his testimony. The suggestion given to him is that in order to help his villagers he was falsely deposing, but the same is denied. It is true that he did not intimate about the incident to the police, but he is the person who went and informed PWs.2 and 3 that the accused poured acid on PW.1. Therefore, from the evidence of PWs.1 to 4 it is clear that the accused is the one who poured acid on PW.1.

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14. PW.6 is the doctor who examined PW.1 on 05.08.2002 at about 01:20 PM and found the following injuries:

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“1) Irregular patchy areas of black discoloration varying from 5 cms to 8 cms x 5 cm to 8 cm over face. 2) Irregular patchy areas of black discoloration varying from 3cm to 5cm x 3cm to 5cm over back.

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3) Irregular patchy areas of black discoloration over anteriror aspect of chest size varying from 6cm to 9cm x 7 to 10cms. 4) Irregular patchy areas of black discoloration over left upper limb size varying from 3 to 6 cm x 6 to 10 cms.

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5) Irregular patchy areas of black discoloration over left lower limb size varying from 3 to 5 cm x 5 cm to 10 cms.

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6) Lids are edemators, Cornea hazy in both eyes.”

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He opined that injury Nos.1 and 6 are grievous injuries and others are simple in nature. Though he has not mentioned the cause of sustaining the wounds in the wound certificate, he stated on examination that those injuries might have been caused by pouring acid on the body. It is also admitted by him that dilute acid will cause simple injuries and concentrated acid will cause grievous injuries.

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15. Though PW.1 stated that acid was thrown on the eyes, but the doctor has categorically stated that PW.1 has not lost her eyesight, but, she was, to some extent, deprived of the eyesight. So, when acid is poured, it is quite possible for the injured to close her eyes. In such a case, acid could not cause burn injuries to the eyeballs so as to deprive the eyesight of PW.1. As seen from the report of the doctor the injuries are not sufficient to cause death and some of those injuries would not cause shock to PW.1. Perhaps some dilute acid must have been strewn on the body of PW.1 and she sustained two grievous injuries and other simple injuries. If such is the case, it is not the intention of the accused to kill his wife or it cannot be said that accused was having knowledge that by doing such act, it would likely cause death in the ordinary course of nature. The injury Nos.1 and 6 can be said to be grievous because of disfiguration of head. Therefore, from the medical evidence coupled with the evidence of PW.1 it cannot be said that the intention of accused is to commit the murder of his wife. Therefore, the necessary ingredients to constitute the offence punishable under Section 307 I.P.C. are not made out so as to punish the accused for the offence punishable under Section 307 I.P.C.

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16. Insofar as the offence under Section 326 I.P.C. is concerned, admittedly, injury Nos.1 and 6 i.e., irregular patchy areas of black discoloration varying from 5 cms to 8 cms x 5cm to 8 cm over face and the lids are edemators, Cornea hazy in both eyes, are grievous injuries. Perhaps, because of the act of the accused i.e., throwing the acid, it must have caused disfiguration of face of PW.1. There cannot be any dispute that disfiguration

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of head is a grievous injury within the meaning of clause (6) of Section 320 of I.P.C. Therefore, in view of the fact that the grievous injuries have been caused by the accused and in view of the evidence of PWs.1 to 4, the accused is rightly convicted by the trial Court of the offence punishable under Section 326 I.P.C.

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17. Insofar as offence under Section 498-A I.P.C. is concerned the evidence of PW.1 is clear that the accused was harassing her to bring more dowry, and in view of the demand made by the accused, she brought Rs.5,000/on one occasion from her parents, but not satisfied with the same, he was harassing her to bring more dowry, and at the time of marriage of PW.5, the accused again demanded Rs.10,000/- and asked PW.1 to bring that amount from her parents. The evidence of PW.5 also would clearly go to show that the accused questioned PW.1 as to why PWs.2 and 3 have not given Rs.10,000/- to him and asked PW.1 to bring that amount. There cannot be any dispute that harassment of the women where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property is a cruelty under Section 498-A I.P.C. The evidence of PWs.2 and 3, who are the parents of PW.1, would also go to show that the accused was demanding PW.1 to bring more dowry, as an amount of Rs.10,000/- was given for the marriage of PW.5. Therefore, from the evidence of PWs.1 to 3 and PW.5, it is clear that the accused was demanding PW.1 to bring Rs.10,000/- towards additional dowry, which is an unlawful demand. Therefore, the trial Court rightly convicted the accused of the offence punishable under Section 498-A I.P.C.

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18. In view of the above discussion, the conviction and sentence recorded by the trial Court for the offence punishable under Section 307 I.P.C. are set aside, while confirming the conviction and sentence for the offences punishable under Sections 326 and 498-A I.P.C.

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19. Accordingly, the Criminal Appeals are partly allowed as indicated above.

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February 05, 2010 MD

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_______________ K.C. BHANU, J

Kumba Siddaiah (C.P.No.9-83) v. State of a.P.Rep. by its Public Prosecutor

Case brief

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Kumba Siddaiah (C.P.No.9-83) v. State of a.P.Rep. by its Public Prosecutor

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