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Bathala Subbarayudu vs State Of Andhra Pradesh on 13 July, 1993

Andhra High Court
Bathala Subbarayudu vs State Of Andhra Pradesh on 13 July, 1993
Equivalent citations: 1994 CriLJ 446
Author: G R Rao
Bench: G R Rao, S Maruthi


JUDGMENT

G. Radhakrishna Rao, J.

1. The appellants herein who were accused 1 to 3 before the Second Additional Sessions Judge, Cuddapah, were tried for the offences under S. 498-A, and also under Ss. 302 read with S. 34 or in the alternative for the offence under S. 304-B read with S. 34 of the Indian Penal Code.

2. The State filed Criminal Appeal No. 300 of 1992 questioning the judgment of the Court below in Sessions Case No. 213 of 1990, whereby Accused 2 and 3 were acquitted of the offences and Accused No. 1 was found guilty and convicted for the offence under S. 498-A of the Indian Penal Code and was sentenced thereunder to suffer rigorous imprisonment for two years. Criminal Appeal No. 1315 of 1991 was preferred by Accused No. 1 against his conviction for the offence under S. 498-A of the Indian Penal Code and sentence thereunder to suffer rigorous imprisonment for two years.

3. Briefly stated, the prosecution case is that the deceased Peddakka was married to Babu, the third son of Accused 1 and 2. Accused No. 3 is the daughter-in-law of Accused 1 and 2. Their marriage was arranged abruptly as the deceased eloped with Babu by then. The parents of the deceased did not give jewels or new clothes to the bride as they were poor. For the marriage, gold ear studs were lent to the bride by one Bala Veera Reddy and about six months later he took back the ear studs. As the deceased was sent to the place of the accused without ear studs, she was ill-treated, beaten and driven away back to her parents place. Thereafter a panchayat was held in the village, and at the intervention of the village elders she was sent back to the house of the accused on the promise to give her gold ear studs and clothes for the next Ugadi. On the very next day of her arrival i.e., on 6-3-1990 at about 10 a.m., when the husband of the deceased was away on work, the accused ill-treated her, and Accused 2 and 3 abused her and beat her and Accused No. 1 poured kerosine over her body and set fire to her clothes. Peddakka sustained extensive burns all over the body. Coming to know of the incident, the parents of the deceased went there and shifted the injured Peddakka to the Head Quarters Hospitals, Cuddapah. She succumbed to the injuries and died on 7-3-1990 at 7.45 a.m.

4. Prosecution examined eleven witnesses and got marked Exs. P1 and P15 and Material Objects 1 to 3. Exs. D1 and D2 were marked for defence.

5. P.Ws. 1 and 2 are the parents of the deceased and P.W. 3 is a resident of the same village who turned hostile during trial. P.W. 4 held inquest over the dead body of the deceased. P.Ws. 5 and 6 are the Medical Officers. P.W. 7 is the Constable who handed over the dead body for post mortem examination. P.Ws. 9 and 11 are the Investigation Officers. P.W. 8 Head Constable recorded the statement of the deceased in the hospital on receipt of intimation. The Magistrate who recorded the dying declaration of Peddakka is P.W. 10.

6. For the State, the learned Public Prosecutor contended that the Court below erred in not acting upon the dying declaration on the ground of delay. He stated that there is practically no delay in recording the dying declaration as the victim was admitted into the hospital at 2.30 p.m., and the dying declaration was recorded at 5.10 p.m. He further contended that the Court below ought not have disbelieved the evidence of P.Ws. 1 and 2 who are no other than the parents of the deceased. He stated that the accused 1 to 3 are liable for conviction for the offences with which they are charged.

7. Sri Mohan Rao appearing for the appellants in Criminal Appeal No. 1315 of 1991 contended that the Court below failed to see that there was no evidence adduced as to the harassment for dowry by the appellants-accused, and therefore the learned Judge erred in drawing a presumption of dowry-death under S. 113-B of the Indian Evidence Act. It is further contended that the learned Sessions Judge ought not to have convicted Accused No. 1 for the offence under S. 498-A of the Indian Penal Code on mere surmises, having disbelieved the evidence and acquitted the other accused of all the charges.

8. We shall now take up the evidence of the parents of the deceased viz., P.Ws. 1 and 2. Their evidence is to the effect that the deceased Peddakka had eloped with the third son of Accused 1 and 3 about an year ago and subsequently they brought them back and performed marriage, but they could not present any gold jewels to her at the time of marriage as they were poor. They stated that at the time of marriage one Bala Veera Reddy of their village gave a pair of ear-studs for the bride, and she was sent with her husband to the house of the accused. Thereafter, it is stated, that Bala Veera Reddy took back the ear-studs and the deceased was sent to her in-laws place without ear-studs. It is further in their evidence that the accused ill-treated and assaulted the deceased and drove her out of the house for not bringing the ear-studs at least. Thereafter, at the intervention of the elders in the panchayath held in the village, on the promise that the deceased would be presented with gold ear-studs and clothes for the next Ugadi which was to fall two weeks later then, the deceased was sent back to her husband’s place. It is stated that on the very next day they got information that the deceased was set on fire by Accused No. 1 and immediately thereafter they went there and shifted her to Government Hospital, Cuddapah, and the deceased told them that Accused No. 1 poured kerosene and set fire to her. On a careful examination, we find that the evidence of P.Ws. 1 and 2 is quite consistent and corroborated and there is no reason to disbelieve the same.

9. Immediately after receipt of the intimation from the hospital, P.W. 8 the Head Constable, went to the hospital and recorded the statement Ex. P8 of the deceased, wherein she stated that on 6-3-90 at about 10 a.m., her husband’s father Bathala Subbarayudu quarrelled with her saying that her parents broke their promise of giving gold articles to her or at least ear-studs and pressed her to get at least ear-studs. She further stated that thereupon the accused poured kerosene on her clothes and set fire with a match stick and she was crying and blisters were caused on her body. She also stated that prior to that, her mother-in-law and her co-daughter-in-law abused her and beat her. Thereafter, she stated, her parents came and shifted her to Government Hospital and the Magistrate came and recorded her declaration. In the dying declaration Ex. P3 also, recorded by the Magistrate, she stated that on that day after her husband went for coolie work, her father-in-law held her and beat her and her mother-in-law and co-daughter-in-law also beat her, and her father-in-law Subbarayudu poured kerosene on her and set fire to her.

10. To the charges framed, the accused pleaded not guilty. Their defence during trial was that they did not harass the deceased for getting gold ornaments and that the deceased herself committed suicide. In support of their defence, DW-1 was got examined who stated that his house is opposite to the house of the accused, and that the deceased died by committing suicide and on hearing her cries he and his wife went and put out the fire.

11. Learned counsel for the accused, contended that the dying declaration was not recorded immediately after the incident, and since the parents were along with the deceased all through in the hospital they must have tutored her to implicate the accused in the case.

12. We do not find force in this contention of the learned counsel for the appellants. We shall record the reasons for arriving at such conclusion. The dying declaration was recorded by a competent Magistrate and the doctor concerned certified thereon that the patient was conscious and coherent all through her statement. The statement was recorded in question-and-answer form. During cross-examination, the Magistrate denied the suggestion that the deceased was tutored by her parents while recording the statement. He stated that except the staff nurse and the Medical Officer nobody else were present there. In so far as the contention regarding delay in recording the dying declaration, is concerned, we may state, the delay, in the circumstances of the case, is negligible. Immediately after the deceased was admitted into the hospital, intimation was sent to the Magistrate for recording dying declaration. The victim was admitted into the hospital on that day at 2.30 p.m., and the dying declaration was recorded at 5.10 p.m. Further, the statement recorded by the Head Constable corroborates with the prosecution case and also the dying declaration. The evidence of P.Ws. 1 and 2 as to the harrassment meted out to the deceased by the accused for not bringing at least ear-studs with her, is consistent and corroborated, and we find no reason to disbelieve the same. The deceased and the son of the Accused 1 and 2 eloped with each other before their marriage and subsequently they were brought back and married. For the accused, it can safely be assumed, the marriage must be much against their wish, and that could be one of the reasons for the harassment apart from the other reasons viz., not bringing any gold ornaments. Further, contrary to the contention of the learned counsel that the dying declaration of the deceased was the result of tutoring by the parents, it could be seen very peculiarly, that in the dying declaration as also in the statement to the Head Constable, the deceased stated categorically that it is Accused No. 1 who poured kerosene and put fire on her. Had there been any effect of tutoring by the parents, as contended by the learned counsel, she would have attributed the incident of pouring kerosene and setting fire, to Accused 2 and 3 also. But, no such deviation is found in her statement. Therefore, we find the statement of deceased both to the Magistrate and the Head Constable, as natural and truthful, and there is no reason to entertain any doubt about the same. We are unable to pursue ourselves to accept the version spoken to by DW-1 who is no other than the grand-father of the deceased being P.W. 1’s father. However, on careful scrutiny of the evidence, we find that the prosecution has failed to prove the guilt of Accused 2 and 3 for both the charges. Even on the harassment aspect too, there is no sufficient evidence on record to hold them guilty. Therefore, the learned Sessions Judge rightly acquitted Accused 2 and 3 of all the charges giving them benefit of doubt.

13. In view of the foregoing, we are clearly of the view that the prosecution proved the guilt of Accused No. 1 for offences both under S. 498-A and also S. 302 of the Indian Penal Code. Resultantly, Criminal Appeal No. 300 of 1992 filed by the State is allowed insofar as Accused No. 1 is concerned and dismissed in respect of Accused 2 and 3. Accused No. 1 is found guilty for the offence under S. 302 of the Indian Penal Code and he is convicted thereunder and sentenced to suffer imprisonment for life. The conviction of Accused No. 1 for the offence under S. 498-A of the Indian Penal Code and sentence thereunder to suffer rigorous imprisonment for a period of 2 years imposed by the Court below are confirmed. The sentence of Accused No. 1 for the offence under S. 302 as also S. 498-A of the Indian Penal Code shall run concurrently. Consequently, the appeal filed by Accused No. 1 viz., Crl. Appeal No. 1315 of 1991 is dismissed.

14. Order accordingly.

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