Dismissed

K.Rajkumar v. the State of A.P.

Telangana HC11 Nov 2022CRLA/677/2013

Case brief

AI extract

What is this about?

This Criminal Appeal was dismissed. The High Court upheld the conviction under Section 498-A IPC despite contradictory dying declarations, finding the trial court correctly identified cruelty driving the wife to suicide. The sentence was deemed adequate and bail was cancelled.

What did the court decide?

The cancellation of the bail grant is ordered. The appellant is directed to surrender before the court below within fifteen days or be taken into custody.

K.Rajkumar Vs the State of A.P. — Matrimonial and Divorce | Telangana HC (2022)

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Bail Slip: The Petitioner/Accused^{was directed to be releasedon bail by the} order of the High^{courtdated 19/08/2013 in Grl.A.M.P.No.1199 ot 2013 in crl.A} No.677 of 2013

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IN THE HIGH COURT FOR THE^{STATEOF TELANGANA} AT HYDERABAD

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FRIDAY, THE ELEVENTH^{DAY OF NOVEMBER} TWO THOUSAND AND TWENTY^TWO

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PRESENT

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THE HONOURABLE DR. JUSTICE^{G.RADHA RANI}

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CRIM INAL APPEAL NO: 677^{OF 2013}

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criminal Appeal filed Under^{Section 374 (2) ol code of criminal Procedure} aggrieved by the Judgment^{sentenceimposed inS.C.No.479ol2012} dated.08.082013 on the file of^{the court of the specialJudge for Trial of offences} under SCs and STs^{(POA)Act Cum Vl AdditionalMetropolitansessionsJudge,} Secunderabad.

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Between:

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K. Rajkumar, S/o. K. Bikshapathi,^{R/o.H No 'l-38-1735, Krishna Nagar,} Rasoolpura, Begumpet, Secunderabad.

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...ApPellanUAl

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AND

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The State of Andhra Pradesh, Represented^{by rts Public Prosecutol,High} Court ofAndhra Pradesh, at^Hyderabad.

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...Respondent

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Counsel for the Appellant: SRI^{G. M. VIJAY KUMAR}

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Counsel for the Respondent: THE^{PUBLIC PROSECUTOR}

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The Court made the following:^ORDER

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Dr.GRR. J crla 677 20ll

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TIIIi IIoN'BI,E,^{DIT. JUS'TICEG. RADHA RANI}

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CTLINIINAL^{APPEAL No.677 OF 2013}

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JUDGMENT:

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This Criminal^{Appeal is hled by the appeflant-Al aggrieved by the} judgment of conviction^{and sentenceimposed against hirn in S'C'No'479of} 20|2dated05.08.20l3bytheSpecialJudgefortrialofoffencesunderSCand ST (POA);A.ct^{cum VI AdditionalMetropolitanSessions Judge'Secunderabad-}

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i. The case ol^{the prosecutionin brief was that on 06'07'2011at about} l; 10:00PM, the^{Accused No. Ipoured kerosene on his wife by name} Smt.shyamalaarrdlitfireduetowlrichshesustained40%burninjuriesand died on 12.08.2011^{while undergoing treatment' On receipt of telephonic} messagefromGandhiHospital,Secunderabadon0T'07'20l1atabout00:l5hrs' the Head Constable^{of PS Begumpetproceededto Gandhi Hospital' Female} Burns Ward^{and recordedthe statement of the victirg' Basingon the said} statement,anotherHeadConstable(3006)ofBegumpetPSregisteredacase vide crime No.2l0^{0l'201 I unclerthe head 'woman Burnt'and handedover the} case tile to^{the St of [,olice, PS Begumpetfor investigation.The Sl also} recorded the statcme^{nt o1- thc victim at Candhi Hospital,thereafter proceeded to} thesceneofol-|bncci.e.,totlrelrouseofthevictimandconductedobservationcum-seizurepanchanat-nainthepresenceol.thewitnessesandseizedakerosene

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ll l

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Dr.GRR,I crla 677 2013

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stove from the said house. He also drafted a rough sketch of the scene of offence and got the scene of olfence photographed with the help of a photographer. On requisition by the SI of Police, on 08.07.201 l. the XII ACMM, Nampally recorded the dying declaration of the victim at female Bums Ward, Gandhi Hospital. Subsequently on telephonic message from Gandhi Hospital that the victim intended to give a second dying declaration, the SI of Police of PS tlegumpct gave a requisition to XI ACMM, Secunderabad who recorded the same on 18.07.2011. While undergoing treatment, Smt.Shyanrala succurnbed to bum injuries on 12.08.2011 at 09:35PM at Gandhi Hospital, Secunderabad. On requisition by the SI of Police, the Deputy Tahsitdar Smt.S.Geetha contlucted inquest over the body of the deceased in the presence of the witnesses. She also examined the parents of the deceased, who stated that their son-in-law harassed their daughter for want of more dowry and after three (03) days of the incident they were also informEd by their daughter (deceased) that their son-in-law Rajkumar poured kerosene in drunken condition on their daughter and lit fire by closing the doors from inside. After inquest, the body of ttic deceased was subjected to autopsy by the Professor, Department of Forensic Medicinc. Oandhi Medical College, Secunderabad. The doctor', who conducted autopsy, opined that the cause of death of the deceased was "Shock due to burns"

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Dr.GRR, J crla 6?7 2013

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lil

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Basing on the statements of witnesses recorded by the Deput-v Tahsildar, as the death of the deceased occurred within seven (07) years of her marriage, the SI of Police altered the Section of Law iiom^'woman burns' to Section 304-8 IPC and handed over the case file to the Assistant Cornmissioner of Police, Begumpet Division, Secunderabad for further investigation. The Assistant Commissioner of Police vigited the scene of offence, recorded the statements of the neighbours, parents and another relative ol'the deceased. IIe affected the arrest of Al on 29.11.2011 and produced before the courr. On his transf'er, the subsequent Assistant Commissioner of Police who took charge, basing on the second dying declaration affected the arrcst of A2 to A5 on 23.05.2012 and produced them before the court. Atter completing the investigation, he filed charge sheet against At for the otl-ences punishable under Sections 498-4 and 304-8 IPC, against A2 and ,A.3 for the oft-ence under Section 498-4 IPC and against ,A,4.and A5 for the offence under Seciibn 498-4 read with Section I09 lPC.

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T'he case was taken cognizance by the XI ACMM, Secundcrabad and commitled it to the court of sessions, which was made over to the VI Additional Metropolitan Sessions Judge, Secunderabad.

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On appearancc o1- the accused, the VI Additional Mcrropolitan Se ssions Judge framed charqe s against the Accr.rsed-A I for the of-fcnces under

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DT.GRR. J crla 677 2013

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Sections 304-8 and 498-4 IPC, against A2 and A3 for the olfence under Section 498-4 IPC and against 44 and 45 for the offence under Section 49g-A read with Section 109 IPC.

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During the course of trial, the prosecution got exarrined pWs 1 to I 5 and got marked Exs.Pl to Pl2. Thd stove seized from the scene of offence was marked as MOl. No defence eyidence was adduced by the accused. On considering the oral and documentary evidence on record and on hearing both the Speci3l Public Prosecutor and the learned defence counsel, the Sessions Court acquitted Al for the offence under Section 304-8 IPC, acquitted A2 and A3 for the offence under Section 498-A IPC and acquitted ,A4 and ,A.5 for the offencc under Section 498-4 IPC read with Section i09 IPC.^'l'he trial court found Al guilty for the charge under Section 498-4 IPC and convicted and sentenced him to undergo rigorous imprisonment for a period of one year and fine of Rs. 1000/- and in default of payment of fine, to suffer simple irnprisonment lor a period of three (03) months for the said ot'fence.

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Aggrieved by the said judgment of conviction and sentcnce imposed against Accused No.l for the offence under Secrion 498-A IpC, the Accuscd No. I preferred this appeal contending that the rrial court tailed to appreciatc the conflicting versions given by the deceased in Exs.tr2. P4, P7 and I']l I and camc to a conclusion that the deceased stated about the harassntent ol

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DiGRR, J ula 677 2013.

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A1. tn both^{Exs.P4 and Pl1 also, the deceased stated that due to unbearable}

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words, she^{poured keroseneon herself and set ablaze.The deceasedhad not} stated in Exs.P2^{and P7 what she had stated in Exs.P4 and Pl1. The trial court} failed to see^{that the evidenceof PWs I to 3 and the statementsof the deceased} deposed in^{Exs.P2, P4, P7 and Pl l would not attrailthe ingredientsgfSection} 498-A IPC^{and prayed to set aside the judgment of conviction and sentence} imposed against^{himby the trial courl-}

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g. Heafd^{the leamed counsel for tlrc appellant and the leamed Assistant}

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Public Prosecutor.

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The learned^{counselfor the appellant submittedthattherewere four (04)} dying declarations^{given by the deceased in this case, each one was an} improvement^{over the other, when contradictory dying declarations weregiveir} by the deceased,^{the benefit ofdoubtshould be given to the accused.-He further} contended that^{there was delay in recordingthe statements of PWs1 to 3, as} such no reliance^{could be placed upon them,alt the witnesseswere interested} and prayed^{to allowthe appeal by setting asidethe judgment of conviction ahij} sentence'recorded^{againstthe appellant-AccusedNo. l.}

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The learned^{AssistantPublic Prosecutor on the other hand contended that} the trial court acquitted Al^{for the rnajor olTence'underSection 304-8IPCand} convicted only for the^{minor offence unrler Section 498-4IPC and that too, had}

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Dr.GRR, J c a 677 2013

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taken a lenient view and had imposed a sentcncc of^imprisonment ol^{one year} only, there was no reason to interlere^{with the said judgmentand prayedto} dismiss the appeal.

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Now the point for consideration^{is: Whether the judgmentof the trial} court in convicting the Accused No.l^{for the offence under Section498-4IPC} and sentencing him as above is in^{accordancewith law or requiresany} interference by this cour1.

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On'a perusal of the^{evidence of the rvitncsscs'I'Wl, the fatherof the} iec"used stated that on^{26.05.2010, he perfonned the rnarriageof his deceased} daughter with Al. At the^{timp of marriage, on thc den.rand of the Accused,he} gave Rs.55,000/- of cash,^gold and^{householdaflicles, they lived happily for a} period of six months. Thereafter Al^{demandedadditionaldowry.On that issue,} on two (02) occasions, a^{panchayatwas held.On 06.07.201I he received} telephone from 42, the^{father of A1, that his daughter was admitted in Gaudhi} Hospital. He saw his daughter^{with bum injuries in hospital.She was not in a} position to give statement. After three^{(03) days, his daughter told him that Al} had stolen Rs.500 kept in^{the almyrah, wellt out, caure in drunken condition} and assaulted her. She^{furtherstated that Al tit lire by pouring keroseneon her} body and A2 to 45 supporred Al.^{IIe stated that Al liarassedhis daughter} physically and rnentally, on 12.08.201l,^{his dauglrterdicddue to burn injuries.}

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In his cross-examination,^{hc statcd that his daughter sustained burninjuries on} face, nose,^{mouth. lips and on headand for three (03) days from the date of} admission^{into hospital,she was in unconsciousstate of mind. He deniedthat} they tutore<1^{the deceasedto give statementimproving her earlierstatements.} He also^{stated that A I and the deceasedused to residb separatelyfrom,$3to ,A5} in one room.

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The^{mother of the deceaseclexaminedas PW2 also stated that on} 26.O5.z}ltl,^{thcygot rnarricd the deceased with Al, on the dernand of accused} at the time^{ol mariage they gavc Rs.55,000/-of cash,six and half tulas of gold} and Rs.25,000i-^{tbr utcnsils.she livcd happilyfor a period of six (06) months.} Thereafter, Al^{demanded additionaldowry and the same was informed by their} daughter to^{them. Panchayat rvas held on two (02) occasions.} $fter^Panchayat, Al and the^{deceasedlived separately in the same locality.Her daughter} informed^{her that Al poured keroseneand lit fire on her due to which she} sustained^{injuries. After one month,due to injuries her,daughterdied. In her} cross-examination.^{she stated that one (01) monthafter her .daughter was} admitted^{in the hospital. Police recorded her statement.}

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PW3,^{who was relatedto the deceased as a grand fatherstated that he was} present at the tirne^{of ntarriage betu'centhe deceasedand A1. On the demand} of the accused^{at the tirne of marriagc,PWs I and 2 gave Rs.55,000/-of cash,}

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Dt.GRR, J crla 677 2013

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six and half tulas of gotd and household utensils. He received information from Pwl that his daughter received burn injuries and was shifted to hospital. Two (02) days later on his enquiry, the deceased Smt. Shyamala told him that A1 lit fire by pouring kerosene.

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The evidence of PWs I to 3 is not specific as to what was theadditional dowry amount demanded nor any details of it as to when the demand was made, when and where the panchayats rvere held, who held the panchayats, etc. Their evidence !.,s vague with regard ro the dcmand of additional dowry by Al.

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As per the prosccution case, immediately on receiving the telephonic message from Gandhi Hospital, the Head Constable (70a5) by name Giddaiah of Begumpet PS, Secunderabad went to Gandhi Hospital, female Bums Ward and recorded the statement of the victim on 07.0i.2011 at 00:15hrs. The said statement was marked as Ex.P4. In the said statement, the victim staJed that she was married with Al about one year one month ago, on 0d.07.2011 at about 10:00PM A I came home in drunken condition and when.she questioned him for not bringing the provisions, he tried to beat her and abused h€r. Uriable to tolerate his abusive words, she poured kerosene available in the stove over her body and ser lllc to lrerscll.

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Subsequently, as per the prosecution case, the SI of police visited the Gandlri Hospital on 01 .01 .20I I and he also recorded the statement of the victirn.

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Dr.GRR. J crl b'1 201-l

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ln the said statement, it^{was recordedthat the marriage of the victim was} perfbrmed with Ai one^year ago,^{A1 was addicted to alcoholand used to come} horne in drunken condition daily.^{On 06.07.2011A1 camehome in drunken} condition and lorced the^victim to^{bring householdarticles from her parents'} house and tried to beat her and^{used vulgar langutgeagainst her-} .lnable^to bear the abusive words by^{her htisband, thevictim poured keroseneavailablein} the stove and set herself ablaze.^{On' her hue and cry, A 1 camethere} cxtinguished the flarnes^{and shifted her to GandhiHospital for treatment.The} said statement^{rvasmarked as Ex.Pll.Therewas no signature oi victim on} Ex.Pl l. but the signature of the^{victimwas obtained on Ex.P4.As per the} evidencc ol'PWs I to J. the^{victim was not in a position to speak and slre wasin} unconscious condition for 2 to 3 days.^{But, the Head Constable,as rvellas the} SI recorded her statement immediately^{after the incident on 06-07.201Iat} 0 1 :20AM as well as on 07^.07 .201^{1 and the Head Constable alsoo6tainedher} signature on the stalement.

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C)n the requisition given by the SI^{of Police, the XII ACMM recordedthe} dying declaration of the deceased on^{08.07.201 I at l2:55PM. In the saiddying} declaration, thc victim stated^{that A1 poured kerosene on her and set flrc to her.} when she raiscd hue and cry, the^{neighbours openedthe door, bet Aland} brought her to the hospital,^{her husband was harassing her dailyas shc was not} begetting children and was threatening^{that he would perlormsecond marriage,}

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Dr-CRR..l ctla 677 Z0l J

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he had taken atl her gold omaments including her mangalasutram chain and

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mortgaged all the articles and when she asked him about them, he used to beat her. To pertbrm second marriage, he bumt her. The evidence of pW5, the xll ACMM, who recorded the dying declaration on 0g.07.201 l marked as Ex'P2 would disclose that she had taken alr ttie necessary precautions in recording the dying declaration, obtained the certificates of the duty doctor about the condition of the declarant before recording the dying declaration as well as after recording the dying declaration that she was in a fit srate of mind to givc hcr statement and after putting sotne preliminary questions and ascerlaining the mental condition of the declarant and on satislying hcrself, recordcd the statement. The riritness also stated that as the victim was unable to put her signature due to pain on her hand puq to bum injuries, she obtained the left thurnb impression of the declarant. She also stated thar except she and the duty doctor, no others were pr9senl at the time of recording the stateri'ent.

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Another dying declaration was recorded by the XI !CMM, Secunderabad on 18.07.201 1 at 00:45hrs. The said witness was examined as pWll and he stated that on the requisition given by the Sl of police, pS, Bcgumpet, he proceeded to the Gandhi Hospital, Secunderabad and rccorded the dying declaration of the deceased. His evidence would also disclosc that he had atso taken all precautions in recording the dying declaration. In.the said declaration, the victirn staled that her husband carne in drunken condition and poured

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Dr.(; RR, J c^q 677 2013

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kerosene on her, he was unnecessarity abusing her since she had not given birth to children, the doors were broke open by the outsiders and her mother-in-law poured water and bet her with kettle (binde) on her loin, her father-in-law also used to abuse her in drunken condition daity, her parents gave 6 tulas of gold which was taken away by her hirsband by beating her and gave the same to her in-laws, who pledged the said gold and even though she was asking they were not getting it released, the elder sister ol her mother-in-larv and the husband of the elder-sister of her mother-in-law also instigate her parents-in-law to abuse !rer.^{The old womanwho} was staying by thc side o| their house also used to create quarrels between her and her husband. l'he saicl staternent was marked as Ex.P7. PWI I stated that he had iakcn the right thurnb impression of the declarant on each page of the statement. He also obtained the endorsement of the duty doctor with regard to the fitness of the declarant prior to .and after recording the statement. He also stated that except the witness, duty doctor and the victim no one were present at the time of recording thc statement., The mother of the declarant by name Smt. Leela Mallamma was present at the bed ofdeclarant but he sBnt her away and recorded the staternent in her absence.

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20- Thus, thbugh the trial court recorded thar pws.5 ancl 11 foilowed the requisite procedure and had taken all the precautions rvhile recording the statements, as there were improvements in the dying declarations considered that the said dlng declarations were given by the declarant on tutoring and the

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allegations made against A2^to 45^{were laterdevelopment. The trial court also} observed that as the deceased^{had not statedin her earlierstatementsrecorded} by the Head Constable and^{the SI about A1 pouringkerQseneon her and set her} ablaze but stated that she^{herself pouredkerosene and set her ablaze, considered} that the later version of her stated^{before the Magistrates PWs 5 and I I was also} an afterthought and the said^{versiondid not repose anyconfidence'}

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The trial court relied^{upon the judgment of the Hon'ble Apex court in}

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Smt. Kalpala^v. State^{of Punjablwherein it rvas held that:}

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"if there were more than^{onedyingtlcclaratittnth<'.t' should bc consistent} particularly in material^{particuIars".}

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The trial court also^{reliedupon the judgmentof'the AP High court in} Chinnapattu Ndga^{V. State of AndhraPradesh2 whercin it was held that:}

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"the oral^{dyingdeclaralionappearedlo be the.lirstin line und there was d} chance foi thi interested^{$titnessesto tutor the dcccased'Thereforc' the} subseqient d.ying declarations^{involvingthe accusedin lhe crime appeared} to be an afterthought^{" .}

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The trial court also^{recorded the decisionol-the DivisionBench of the AP}

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High Court in Public^{Prosecutor Hyderabad v. Jangili Nirmalaand another3,}

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wherein it was held:

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"when there are conJlicring licu.s itt^{befiteen tvtt d)'ingdcclarations'} acquittal was^justified".

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'ltoll;^crt.t-..1.6E

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'^ttoz 1z1ALD^{(crl)942(A-P)}

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'^{rsso (2) elo (crt) 940(A.P.)(D.l].)}

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Dt.ORR. J crla 677 2013

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It also recorded the decision relied by the accused of Ap High court in

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Chakiri Saidulu and others v. State of Andhra pradesha, wherein it was held that:

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"The second dying det.laration u'as definitely an improvemenl over the earlier d.t,ing declarution and in the absencie of any other evidence on record corrohoruting the t'ersio, contained in the secind'irying decraiittion, it cannot bc rr:ceplad".

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The trial court also relied upon the judgment cited by the leamed counsel

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for the accused, ol Ap High Court in Kadapa Subba Ranga swamy @ Subba

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v. State of Andhra^pradcshs u,here in it was held that:

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"It was .settle,d principlt, ol latt, that i./ a dying declaration was ttae and voluntar!, it can hc rtlicd upon. llut y:hen a doubt or suspicion arises regarding tlu statan?nt of lhc decaasul tiz-, dying declaration, it was not safe to ralt on such d),ine d<,clorution to base the cinviction of the accused,,.

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26- The trial court observed thar i. view of the vital discrepancies in the dlng declararions. rhe same courd not be accepted. In the first two dying declarations i.e., Exs.p4 and p[, the declarant had taken a stand that she poured kerosene on hersell and lit tlrc, she also stated io Er.pl I that it was her husband A1, who put off the fire a,cr admitted her in the hospital, but in the later dying declararions Exs.p2 ancl p7, the deceased developed the version as if A I poured kerosenc and lit fi re to lre r and 42 to A5 used to harass her. considering the tinre eap in rccor<iing the subsequent dying declarations, the

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o 1t9eny^crt.L..r. lznz t reol 1zy ALr' (crl) s8l ( D.B)

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1,4

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Dr.GRR, J crla 677²⁰¹³

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trial court opined^{that there was development about the involvementof 42 to} A5.

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But however considering^{that the presence of Al was mentioned in the} earlier statements made by^{the declarant and though there were developments in} the subsequent statements,^{the deceasedwas specihc in both Exs.P4 and Pll} that Al tried to beat^{her and used most vulgar language against her andthe} conduct of Al in abusing^{tl.rc deceased would attract the provisionsof Section} 498-A IPC which^{r,r,ould amount to crueltydefinedin the Section drivingthe} deceased to commit^{suicidc, the trial couft found A1 guilty for the offencpunder} Section 498-,{ IPC.

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This Court does^{not tind any illegality in the observationofthe trial court} in coming to the conclusion^{of the guilt of Al for the offence underSection} 498-4 IPC. The trial cou(^{had also taken into consideration the contentionof} the defence counsel with^{regard to the delay in recordingthe 161 Cr.P.C'} statements of PWs I to 3^{and observed that the evidenceof PWs I to 3 was not} considered with regard^{to thc harassment by Al to A5 for dowry as suchthe} delay in recording^{theirstatements would not causeany prejudiceto A1 since} his case was appreciated^{consideringExs.P4and Pl I and other circumstances.}

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The contention of^{the learnedcounsel lor the appellantwas thatExs.P4} and Pt I were also^{not consistenrwith each otherand the said statementswould}

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Dr.CRR, J crlu 677 201.1

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not attract the ingredients of section 498-A Ipc. Though therc were some contradictions in both these staremenrs, wherein in Ex.p4 it was stdted by the deceased that when she questioned Al about not getting the provisions he camc on to beal hcr and abused her in filthy language, whereas in Ex.p I I she stared about Al lbrced her to bring household articles from her parents' house and tried to beat her and used most vulgar language against her and there was also an improvcment in the statement recorded under Ex.pl I about Al trying to extinguish the uames and that it was he, who shifted her to Gandhi Flospital for treatment. Both these statements are consistent with regard to the quarrel ensued between the deceased and Al and that he came in drunken condition, abused her antl came upon to beat her. unable to bear the same, she poured kerosene oil fiom the stove on her body and set herself ablaze, which is sufficient to attract the ingredients of Section 49g-A Ipc. Even after removing the exaggerations, the statement of the deceased in Exs.p4 and pl I is'consistent with regard to the harassment and cruelty met by her in the hands of Al which drove her to commit suicide. As such, this court does not find any illegality or. impropriety in the judgment of the trial court in coming to the conclusion about the guilt of the Accused No.l for the offence under Section 49g-A lpc. The sentence imposed by the trial court is also very meager. The trial court senlenced AI to rigorous imprisonment for a period ol one year only and

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imposed finc of Rs. 1,000/-. This Court does not find any necessity to interfere rvith thc sentence inflicted against A1 for the offence under Section 498-4, IPC.

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IIence, the Criminal Appeal is dismissed confirming the conviction and sentence inflicted against the Appellant-Al vide judgment dated 05.08.2013 passed in S.C.No.479 of 2012 by the Special Judge for trial of Off-ences under SC and Sl' (POA) Act cum VI Additional Metropolitan Sessions Judge, Secunderabad fbr the offence under Section 498-4 IPC. The bail granted to the AppellanlA I shall stand cancelled. The appellant-Al is directed to surcncler .belbre thc court below within fifteen (15) days from the date olthis ordcr attd rn case he iailcd to do so, the court below is directed to take steps in accordance witl'r law to take him into custody.

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Misccllancous applications pending, if any, shall stand closed.

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SD/-K.SRINIVASA RAO

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JOINT REGISTRAR //TRUE COPY// 6e SECTION OFFICER

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To,

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'1 . The Special Judge for Trial of Offences under SCs and STs (POA) Act Cum Vl Additional Metropolitan Sessions Judge, Secunderabad. (With records if any)

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